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Louden Law, PLLC Blog

September 2021

Get the Most out of Divorce Mediations in Oklahoma

Mediation is without question one of the most powerful tools available to you in a divorce or custody case. Not only can mediation minimize your legal expenses, but it also gives you a say in the outcome of your case. Unfortunately, many people fail to recognize the importance of mediation, leading to a half-ass effort and a failure to prepare appropriately. If you go to trial, the JUDGE makes the decision. In Mediation, YOU get to decide

I feel that mediation is so pivotal that I have taken the time to put together these must-know mediation tips. I still learn something every time I mediate a case, so my mediation guide continues to evolve every year. I share these tips with my clients to help prepare for mediations, and now I will share these tips with you.

Divorce Mediations
Pete D. Louden

What is Mediation?

Mediation is a process in which an impartial third party (the Mediator) helps people find mutually agreeable solutions to their legal issues. For example, in Oklahoma divorce and custody cases, the issues can include custody, visitation, property and debt division, child support, alimony, and other issues..

The Mediator is there to identify issues, help you understand one another, and help you reach agreements. The Mediator succeeds if you walk out of the mediation with an agreement. You succeed if you walk out of the mediation with a deal acceptable to you. Whether you choose mediation or the court has ordered you to mediate, the decision to settle is always up to the parties. The Mediator has no authority to impose a settlement on the parties.

There are generally two options for mediation:

Early Settlement is a court-sponsored mediation program. Early Settlement is an excellent program I have used extensively over the years and have had great success getting cases resolved. I find this option to be most effective for low conflict cases where the parties can sit in the same room and, with the help of a mediator, work out the details of an agreement. However, not every case is the right fit for this option.

The other option is to hire a private attorney to serve as a Mediator. This is my go-to mediation method for contested property and debt division issues and higher conflict custody cases. The advantage of hiring an attorney familiar with the judges is that the Mediator can guide the process and let a party know if what they are requesting is reasonable or likely. Offering this "reality check" can go a long way towards steering a mediation towards a settlement. However, unlike Early Settlement, it is not free and involves paying a mediator. Still, a successful mediation will save thousands in legal fees compared to taking a case to trial.

Choosing which option to use is very important. It can make a difference between resolving your case or going to trial. Therefore, I will help you decide which option is best for your particular case.

NOTE: Hiring another attorney to serve as Mediator is entirely different from the situation discussed in this article posted on my Facebook and Oklahoma Fathers Divorce and Custody Blog. Both parties are still represented by their own attorney.

Enter mediation with an open mind.

After doing mediations for over two decades, probably the most significant thing I have learned is that your attitude towards the mediation process will determine the odds of success well before the mediation ever takes place.

If you approach mediation with an all or nothing, hell or high-water mindset, you are wasting your time. You are wasting everyone's time. You must be realistic. Understand that being open to a bit of give and take is not weakness; it is wisdom. Weakness is being a hard-ass for no other reason than just for the sake of being a hard-ass.

You will not get everything you want. Likewise, the other person will not get everything they want. This is true in both court and mediation. However, if the process succeeds, you will find a resolution you each find acceptable.

Ensure your goals are based on reality.

Here is the secret to mediating a family law case. The mystery attorneys spend thousands of hours and years of experience trying to figure out. Here it is:

The secret is knowing when the best option is to take the deal offered in mediation and when the best option is to take a case to trial.

Mediations fail when people cannot separate what they want from what is realistic. Therefore, your mediation goals must be based on reality and not on fairy tale endings. For example, just because you asked for something in your court filings does not mean it is realistic that the court would order everything you want.

Here is the good news: I know if the deal on the table is as good as it's going to get, and I know when you should hold out for a better deal. If I think you should settle the case, I will tell you. If taking the case to trial is the best option, I will tell you.

Here is the good news: I know if the deal on the table is as good as it's going to get, and I know when you should hold out for a better deal. If I think you should settle the case, I will tell you. If taking the case to trial is the best option, I will tell you.

You will not leave mediation with a best-case scenario. If this were going to happen, you would not be in mediation; the case would have already been settled, and the issue would have been resolved long before now.

Your goal should be to find a resolution that lands you with something that you find acceptable.

Don't be a Crusader.

People that approach mediation, or litigation, with the Crusader mentality are never happy in the end. Never. You will never feel a sense of vindication. Just not going to happen at the courthouse or mediation.

If you enter mediation with the idea that you are right and the other party is wrong, and your mission is to prove this to the world, the mediation will not work. This is because the Mediator does not care who is right. Instead, the Mediator cares about finding a solution to your problem that allows you to maintain control of the outcome.

It is also important to note that that this approach will not work at the courthouse either. The family law court is a court of equity. The purpose of the court is to resolve disputes.

Focus on what is best for the kids – not what is best for the parents.

Ensure you understand how to separate what is best for your kids from what is best for you. Of all the things on this list, this one is probably the hardest thing to do. Sometimes what is best for you and what is best for the kids are the same. Other times, there can be a difference.

Legal solutions are not always life solutions.

"If you do what you've always done, you'll get what you always got."

(Mark Twain)

No matter how awesome the outcome of your case, you WILL be miserable going forward if every day and every interaction with the other party is a battle. You may win the battle in court, but at the cost of losing the war, that is your future quality of life. Never-ending conflict will have a profoundly negative impact on your kids and will also impact your future relationships. I deal with family law problems all day - every day. You can take it to the bank when I say your new spouse will grow tired of the constant struggle with your ex real quick.

The great thing about mediation is that you can craft an agreement where each party feels like they negotiated something important to them. Be smart. If you know, there is something the other person wants, and it's something you are already willing to do, offer it! When each party feels heard and their feelings considered, it goes a long way towards dialing down the level of conflict and animosity. As a result, your life will be far less complicated.

You have to decide: Would you rather be right, or would you rather be happy?

Use Common Sense - Do the simple things.

Where you will get the most bang for your buck is by just using common sense. It is the simple things that will set the tone.

Don't insult or criticize the other party. Don't speak condescendingly or sarcastically. Don't raise your voice.

Don't argue with the other party, their attorney, or the Mediator.

Don't let anger or emotion drive your decision-making.

Don't demand that the other party apologize or admit to "wrong-doing."

Don't make non-verbal expressions such as rolling the eyes, loud sighs, laughing, groaning, etc.

Don't make threats to the other party.

Don't call the other party a liar.

Just apply common sense. It really will go a long way.

List all issues you want to address

Mediation can be stressful, which leads to forgetting things. Therefore, you must have a list of issues to ensure that nothing important gets overlooked. If you don't bring a list, you WILL forget something.

In Divorce Cases, we will prepare a Property and Debt Exhibit listing all marital property, the value, and your proposal of dividing the property. We will also prepare a Debt Exhibit that lists each marital debt, the amount owed, and who should pay each debt.

Once an agreement is reached and the mediation concluded, that is the end of the road. The agreement is the agreement, and there is no going back and renegotiating the deal.

So, Should I Agree to a Bad Deal to Settle the Case?

Hell No! No one will twist your arm, coerce, or force you into anything you do not want to do. Any agreements are entirely voluntary.

I have pointed out why you should try to resolve your case in mediation and maintain control of the result. With this said, I am not at all suggesting that you should throw yourself on a grenade! Just because the Mediator suggests a possible solution does not mean you must accept it. You should never agree to something unreasonable just for the sake of reaching an agreement.

Mediate in good faith, yes.
Be flexible, yes.
Be realistic, yes.
Be a fool, no.

Understand you won't get the best-case scenario, but you are not there just to get beat up. Again, you must be able to separate reality from emotion. Know the difference and make intelligent choices. Reach an agreement when you can. Tap out when you can't.

Conclusion:

I will be by your side throughout this process. I know how the judges typically rule given a specific fact pattern. I can tell you if the proposal in mediation is better or worse than the most likely outcome at trial. I can tell you when you are bending too far and when you are not bending far enough. Follow the above tips, and you will significantly increase your chance of a successful mediation. As always, contact me if you have any questions.

Follow my Facebook page and Oklahoma Fathers Divorce and Custody Blog for more information concerning family law matters.

Pete D. Louden
Attorney at Law
Louden Law, PLLC
405-919-8355
petelouden@loudenlaw-pllc.com

Can Both Parties in a Divorce Use the Same Attorney?

I have been a divorce and family law attorney for nearly a quarter of a century. As a result, I get calls from people with all sorts of Oklahoma divorce and family law questions. One scenario I hear often involves both parties in a divorce matter visiting an attorney (or even worse, a paralegal) who promises to help them do a quick and cheap divorce. I will explain why you should avoid such schemes.

Although I have framed this in the context of a divorce case, everything I write here will equally apply to any other proceedings such as paternity, custody, visitation, and child support cases. So, before you and your opposing party decide to meet with an attorney together, you must first understand how this works.

CAN BOTH PARTIES IN A DIVORCE USE THE SAME ATTORNEY?
Pete D. Louden

If there an attorney is involved, that attorney represents one person or the other. There is simply no way around this fact. The attorney is either his attorney or her attorney. There is no such thing as "our" attorney in an adversarial proceeding.

If you and your spouse meet with an attorney and you are unsure which one of you the attorney is representing, that means you are not the client. So, why is this an issue if you agree on everything? Because that attorney is not trying to protect your legal interest or ensure you get a fair deal. That attorney cannot answer your legal questions or give you legal advice. Instead, that attorney is ethically obligated to represent their client's best interest. So, if you are not the client, this means the attorney is looking out for the other party, not you.

Here is the bottom line: There is no legitimate way for one attorney to give legal advice to or represent both the Petitioner and the Respondent in a divorce case. You each need your own attorney, even in straightforward uncontested matters. Don't give in to the temptation to cut corners.



Oklahoma Fathers' Rights in Paternity Cases 

In Oklahoma, when a child is born to parents that are not married, the law recognizes the Mother as the custodial parent, at least until a district court orders otherwise. Even when the Father is listed on the child's birth certificate. 10 O.S. § 7800.

I see two common scenarios involving paternity cases. The first example is the Father, who has relatively consistent contact with the child or even lived together as a family but never married. Things may be fine for a while, but they are denied contact when there is a disagreement with the other parent. The second example is the Father who has been denied all contact with the child. Although the cases are factually different, they both land in the same place, not having access to the child.

Father and Son Image

The good news is that a Father can establish his rights and obtain an enforceable court order. However, it is up to him to initiate legal proceedings to make this happen. The first step in this process is to establish paternity.  Establishing paternity can be accomplished by signing an Acknowledgement of Paternity (most people refer to this as signing the birth certificate,) or genetic testing can establish paternity.

After paternity is established, the next step to solidify an Oklahoma Father's rights is to request an Initial Child Custody Determination. Then, the court will establish custody and visitation based on what the court believes to be in the child's best interest. Once there is a court order in place, that order can be enforced. The Father is no longer at the mercy of the other parent begging to spend time with the child.

Every case is different and dependent upon the specific circumstances. For example, in a case where the parents have lived together, and both actively raised a child, the starting point for a visitation order will be much different from a case where the Father has had only limited contact with the child.

It is even possible for a Father to be awarded custody or joint custody in the right circumstances. Whatever the starting point, the court is tasked with acting in the child's best interest. A child is entitled to having two involved parents, and the courts will support this. The key is that the Father must take the proper legal steps to make this happen.

Talk to us to learn more about fathers rights in Oklahoma.


RECENT POSTS

Get the Most out of Divorce Mediations in Oklahoma

Can Both Parties in a Divorce Use the Same Attorney?

Oklahoma Fathers' Rights in Paternity Cases

Oklahoma Relocations: Can My Ex take of With the Kids?

So, I have filed my Objection, Now What?

What if I Have Custody and I want to Relocate?

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Septmber 2021
August 2021
July 2021





Oklahoma Relocations: Can My Ex take of With the Kids?

So, you have been to court, and you now have a visitation order. You finally have a set-in-stone schedule, and your time with the child is no longer are at the mercy of the other parent. But, out of the blue, you learn the other parent is planning to take the kids and move across the county. What do you do?

In Oklahoma, we have a relocation statute, 43 O.S. § 112.3. While I won't go so far as to say that there is protection from a move, there is at least a procedure that must be followed, and you have the right to request a hearing.

Father and Son in Car

To summarize, if a parent wants to move more than seventy file miles, that parent must provide written notice. That written notice must provide the following information:

  • the intended new residence, including the specific address, if known,
  • the mailing address, if not the same,
  • the home telephone number, if known,
  • the date of the intended move or proposed relocation,
  • a brief statement of the specific reasons for the proposed relocation of a child, if applicable,
  • a proposal for a revised schedule of visitation with the child, if any, and
  • a warning to the non-relocating parent that an objection to the relocation must be made within thirty (30) days, or the relocation will be permitted

If you receive a relocation notice, it is critical that you file your written objection and request a hearing within the allowed time. A failure to timely object can allow the other parent to go ahead and move.


The paper in the court file is only about 10% of
what's involved in presenting a case in court.






So, I have filed my Objection, Now What?

Assuming you have hired an attorney and properly objected, the court will conduct a hearing. At the hearing, the court will consider the following factors:

Father and Son on Laptop
  • the nature, quality, the extent of involvement, and duration of the child's relationship with the person proposing to relocate and with the non-relocating person, siblings, and other significant persons in the child's life,
  • the age, developmental stage, needs of the child, and the likely impact the relocation will have on the child's physical, educational, and emotional development, taking into consideration any special needs of the child,
  • the feasibility of preserving the relationship between the non-relocating person and the child through suitable visitation arrangements, considering the logistics and financial circumstances of the parties,
  • the child's preference, taking into consideration the age and maturity of the child,
  • whether there is an established pattern of conduct of the person seeking the relocation, either to promote or thwart the relationship of the child and the non-relocating person,
  • whether the relocation of the child will enhance the general quality of life for both the custodial party seeking the relocation and the child, including but not limited to financial or emotional benefit or educational opportunity,
  • the reasons of each person for seeking or opposing the relocation, and
  • any other factor affecting the best interest of the child.

The relocating person has the burden of proof that the proposed relocation is made in good faith if that burden of proof is met, the burden shifts to the non-relocating person to show that the proposed relocation is not in the best interest of the child.





What if I Have Custody and I want to Relocate?

As explained above, the proper procedure must be followed. A failure to follow the proper procedure can result in a failed relocation case. If you have custody and would like to relocate, consult with an attorney BEFORE making a final decision to relocate. A little planning and strategy on the front end may limit the potential for problems. My opinion is that relocations were easier years ago. I think it is harder now to relocate than it used to be. However, it always boils down to the specific facts of the case.

Father and Daughter

Conclusion

If you are the relocating parent, make sure you follow the proper procedure. Relocation language is included in every Oklahoma Custody order. If you are the parent receiving the notice, make sure you file an objection. However, you never attempt either of these things without first hiring an attorney. As with all things legal, it's never as simple as filling out the magic form. The paper in the file is about 10% of what's involved in presenting a case. The other 90% is how to properly prepare, organize, and argue the case in court.

Follow my Facebook and Oklahoma Fathers' Divorce and Custody Blog for updates, changes in the law, and other topics of interest concerning Oklahoma Divorce, Paternity, and Custody matters.