One of the benefits of marriage that many same-sex couples are looking forward to is divorce. Not that the desire to divorce among same-sex couple is any greater, but the rules of custody that apply are clearer and fairer to all parties.

A recent article published in the Washington Post this January discusses this complications without the structural benefits of marriage and divorce.

When her three-year-old marriage broke up, the 44-year-old doctor assumed she and her ex would split their property and jointly parent their two children. Her stay-at-home spouse wanted sole custody and the right to move the children out of Massachusetts.

In pretrial motions, both parents made the same argument to a judge: The children should be with me; I’m their mother.

For years, family court judges leaned toward a maternal preference when it came to custody disputes. But what to do when both parents are women, or neither is? Judges in Massachusetts have been grappling with that question since gay and lesbian couples began filing for divorce in 2004, seven months after the state Supreme Court legalized same-sex marriage.

Nearly 10,000 gay and lesbian couples married after the ruling. Massachusetts does not keep records on the number who have divorced, but lawyers who specialize in family cases say it is in the dozens. Those who choose to end their marriages soon discover that the trauma of divorce is compounded by legal and financial difficulties that heterosexual couples generally are spared.

“One of the benefits of marriage is divorce,” said Joyce Kauffman, a Boston divorce lawyer who has handled a dozen same-sex divorce cases. “But for a lot of couples, that benefit is very complicated and very costly in ways that heterosexual couples would never have to experience.”

In the case of the doctor, she and her spouse each gave birth to a boy fathered by the same sperm donor. They then adopted one another’s sons. Biologically, their children are half-siblings; legally, they are full brothers.

“Up to now, I’ve been lucky with the court,” said the doctor, who spoke on the condition of anonymity so as not to prejudice her court case. “Giving birth to one of our children has given me leeway because judges often show a preference toward a biological mother. I’ve spoken to other lesbian women who were in a similar situation, except that they were not the biological mothers of their children, and, in my opinion, they were not treated as fairly by the court.”

Click here to read more

This is just one of the many drawbacks of using the court system to make decisions about your divorce and custody. A judge is typically unwilling and unable to expand or extend the scope of the standard legal framework even if it is the most just solution.

However, mediation allows same-sex couples to develop fairer, more practical divorce and custody agreements. In same-sex mediations, as in all mediations, the couple participates in an open, honest dialogue about their expectations for the custody and property, while a mediator guides them through the process. Same-sex mediation differs from traditional divorce mediation in that the mediator will help the couple focus on issues that are unique to the legal complexities of same-sex relationships, including developing a parenting plan that accommodates both the biological and and non-biological parent.

It is well established that lack of communication can be a death sentence for a relationship. But miscommunication can be just as devastating. When people don’t share a common context of experiences (most people don’t) the likelihood a comment or phrase could be misunderstood or misconstrued are high. These misunderstandings can lead to unnecessary conflict.

An easy way to limit this potential confusion in communication is to clearly articulate your thoughts before speaking. Sure it seems like an simple concept, but it is much harder than it appears. Taking a moment to think about what context your words could be received can help you select the proper words to avoid excessive conflict. This is not to suggest that even the most thought out selection of words isn’t going to spark an epic clash. Rather, the clearer the message you deliver, the greater the likelihood that the conflict arising from the communication is legitimate.

This basic principle of articulation can be applied during mediation as well. Even though there is an inherent level of conflict in a mediation, avoiding additional and unnecessary conflict can lead to a more workable divorce and custody agreement. When couples properly articulate their feelings in a mediation session, they will not only lessen the emotional pain involved, but will be more likely reach a result everyone is satisfied with.

The California Supreme Court’s recent ruling permitting same-sex couples to wed has sparked a whole new wave of dialogue within the family law arena. Divorce mediators and lawyers are particularly interested what role they will play with same-sex marriage dissolutions in the future.

A recent article in the Wall Street Journal written by Nathan Koppel delves into the potential complications same-sex couples may face as they end their marriages.

Next week, same-sex couples across the country who want to marry will be welcomed in California. But what happens if they later want to divorce?

That is one of the many legal issues that could confront California newlyweds who return to home states where same-sex marriages are prohibited. Unlike a Massachusetts ruling a few years ago, a landmark court ruling last month allowing same-sex marriages in California will permit almost any out-of-state couples to wed there.

But that doesn’t mean their lives after the wedding will be easy. Some gay and lesbian couples joined by marriage in Massachusetts or Canada, or under civil unions from, say, Vermont, contend with legal limbo in other states. Among the tricky issues, apart from divorce, that can make the honeymoon feel decidedly over are employee benefits, bankruptcy filings and inheritance rights.

John McCall Jr., a Dallas lawyer who represents gay and lesbian clients in property and custody

Cassandra Ormiston and Margaret Chambers were married in Massachusetts in 2004 but tried, in vain, to divorce in Rhode Island, with the state’s high court saying last year that the state defines marriage as the union of a man and a woman. Now, Ms. Ormiston is trying to establish residency in Massachusetts to divorce there. disputes, says that thanks to the legal thicket same-sex couples can face, his clients “over and over again tell other couples considering marriage to run in the other direction.”

To read the entire article, click here (Requires WSJ online subscription)

One of the benefits that mediation provides to both heterosexual and homosexual is that much of the heavy lifting of the divorce is done away from the courtroom.  This allows the couple to prepare and resolve potential legal issues together before they are under the spotlight of the judge and likely the media.  While mediation can not defend against all of the obstacles that will block a same-sex couple from an easy divorce, it does alleviate some of the problems the couple will face.

The biggest difference between a divorce mediator and a divorce lawyer is the mindset in which they approach their clients. As you can see from this open letter from a divorce lawyer, originally posted on www.divorceinfo.com, a lawyers goals and motivations may differ dramatically from those of his/her clients.

I am pleased that you have hired me to represent you in your divorce. I’m pleased because I need the money you and others like you pay me. I’m tired of working with people like you who are always fighting and never happy, and often unhappy with me, but I feel trapped now and don’t know how I could change my practice at this point in my career without a huge financial setback, so I hang on and do the best job I can, the best way I know, for clients like you.

If you’re like most people going through divorce, you’ve heard a chorus of voices — from your mother to your neighbor to the person who cuts your hair — warning that you better get a mean “junkyard dog” lawyer. I don’t like being a junkyard dog lawyer, and I don’t think it would be in your best interest for me to be, but I have to give you the impression early on that I am so you will hire me. I don’t like doing it, but you demand it, so I do it.

That means that when we met in our first consultation, I talked about how experienced I am. I gave you an optimistic assessment of what you would give up and what you would get working with me. If your spouse had come the same day instead of you and presented the very same facts, I would have given your spouse an equally optimistic assessment from their perspective. I learned long ago not to lose any sleep about doing this. You demand it, and I’m going to give it to you so you will hire me.

Click here to read the entire letter.

Of course, this letter does not represent the views of every divorce lawyer, but it does reflect the fundamental problems with traditional litigation. First, the clients need “stick it to” their ex, creates costly inefficiencies that only seems to benefit the lawyer’s pockets. Second, the excessive costs of litigation leaves divorce lawyers rightfully paranoid that clients won’t pay, so they are induced to act in a manner that may not be in keeping with the clients best interests.

In contrast, the low cost and collaborative nature of mediation ensures the mediator’s interest are aligned with that of the clients. Mediators encourage the sharing of ideas between the two parties which eliminates some of the key inefficiencies that plague divorce litigation. Moreover, because the cost of mediation is reasonable, mediators don’t feel compelled to put money first and the client’s interests second.

While divorce lawyers and divorce mediators are both tasked with ending a marriage, it is how they go about achieving the goal that makes all the difference.

If this is your first year testing out custody agreement after your divorce , the 4th of July is a great opportunity for self-evaluation. A major holiday like this can let you know how well you are adjusting to the new dynamic and if the agreement is working for you.

Here are four things to consider as you review your 4th of July:

1) Were the only fireworks your child saw in the sky?

The Fourth is great for watching fireworks light the night sky with friends and family. However, emotional fireworks are a different story. Consider if you were able to keep your emotions in check when you dropped off/picked up your child from your former spouse. Keeping cool in this situation will help your child as he/she adjusts to the new situation.

2) Did you assert your independence?

If you are the parent without the child during this holiday, it can be hard to think about anything else or enjoy yourself. But if you are able to find even a little peace or enjoyment during the day, then the transitions will become easier with time.

3) Who did the grilling?

Grilling steak, burgers, and veggies — Good! Grilling your child for details about your ex-spouses life –Bad. Consider how many time you asked you child what his mother or father has been doing in their personal life. Remember, your child is not a witness or a spy and putting then in that position will just make the transition more difficult in the long run.

4) Did you take liberties with your agreement?

The 4th of July is about liberty for the country not taking unilateral liberties with your agreement. Consider if you stuck to the plan as created or if you manipulated some of the details to get what you wanted. It is fine to swap days and suggest certain minor changes to the plan. However, each time a decision is changed last minute by you, it gives your former spouse the same privilege in the future.

For those of you interested in emulating the personal habits of celebrities (which we typically don’t advise), this may be one of the few occasions where it should be permitted.

E! News reports that Britney Spears and her ex-husband Kevin Federline are using mediation to develop a working custody agreement:

Kevin Federline wants Britney Spears to once again play a major role in their children’s lives. Just not a bigger role than his.

K-Fed’s attorney, Mark Vincent Kaplan, spoke exclusively to E! News in the wake of Thursday’s all-day mediation session, in which both sides were seeking to hash out a custody agreement in advance of an August trial.

“Kevin is seeking to maintain the sole legal and physical custody that he presently has,” Kaplan said. “There’s nothing magical about 50-50. There’s nothing magical about 60-40. What’s magical is that whatever order is in place, it’s the order that best suits the best interest of the children.”

Interested in training to become a mediator? (Who isn’t?)  Then join Peace Talk  top mediators this October for a Family Law Mediation  Certification Program.

Our 40-hour training course, cosponsored by Institute for Conflict Management, will give participants the opportunity to learn how family law mediators help families create lasting solutions. 

The first 5 attendees to sign up receive a $300 discount on tuition.

Find out more online at:

www.icmadr.com/mediation-certification/divorce-mediation-training.html

You know you are on the road to success when your field is mentioned by a celebrity or on reality TV. (I am only half kidding). Well prepare for divorce mediation to take off now that the TV show Denise Richard: It’s Complicated has hit the E! Channel. In the show actress Denise Richards meets with a divorce mediator on camera to discuss her divorce.

While this is not necessarily the best press for the sane, sensible, confidential, and affordable approach to mediation that Peace Talks believes it, as the old saying goes “Any press is good press.”

We usually deal with existing relationships at Peace Talks and on this blog, but this posting on the blog Nerds Do It Better caught our eye and is worth sharing.

The post offers 50 tips for dating after divorce.  Some of our favorites are:

Learn to enjoy your own company, use social networking sites, rekindle old interests, and volunteer.  But there are plenty other great tips to choose from that you can check out here.

From the world of thinly stretched analogies, I thought I should point out that in the U.S Open, a nearly unknown player, aptly named Rocco Mediate, is battling established golf giant Tiger Woods in a playoff today. Mediate is the new “alternative” to Woods and is finally getting recognized for his success in his field.

I will let you draw the connections.