Episode 4: Paul Schwen, Divorce Mediation and Co-Parenting Foundations

Welcome to the latest episode of the Queer Divorce Club Podcast! We are thrilled to bring you an enlightening conversation with Paul Schwen, an esteemed family law attorney and mediator who specializes in supporting queer individuals through the divorce process. In this episode, Paul shares his expertise on the ins and outs of mediation, shedding light on its unique dynamics within the context of queer divorce.

During our insightful discussion, Paul dives deep into the intricacies of mediation and highlights the differences between queer and straight divorces. He emphasizes how mediation can serve as a powerful tool for establishing a solid foundation of understanding and cooperation, even after a divorce has been finalized. Drawing from his personal journey, Paul provides valuable insights into his own divorce experience, touching upon the process he and his ex-wife undertook and how her coming out during that time influenced their approach.

Join us as we delve into this thought-provoking conversation with Paul, where he offers invaluable guidance and illuminating perspectives on navigating the complexities of mediation in the context of queer divorces. This episode is sure to resonate with anyone seeking clarity and empowerment throughout their own divorce journey. Listen now to gain a deeper understanding of the transformative power of mediation and its potential to shape a brighter future beyond divorce.

Paul Schwen

Paul Jacob Schwen is an accomplished attorney and divorce mediator.

After graduating from high school, Schwen enlisted in the United States Marine Corps. His time in the military instilled in him a deep sense of discipline and a commitment to service that would shape his career for years to come. Much of Schwen's work in the military as an Arabic linguist placed him in situations where he was deescalating problems between local civilians and the military.

After leaving the Marines, Schwen attended the University of Utah and the American University Washington College of Law, where he earned his Juris Doctor degree. He went on to work as an attorney, focusing on family law and divorce mediation. Schwen's background as a Marine Corps veteran gave him a unique perspective on conflict resolution, which he used to help families navigate the difficult process of divorce.

Schwen's dedication to helping others has earned him a reputation as a skilled and compassionate attorney and mediator.

 In addition to his legal practice, Schwen is an active member of his community, volunteering his time to organizations that support veterans and their families. He continues to serve as a source of inspiration to those around him, demonstrating that a commitment to service and a dedication to helping others can lead to a fulfilling and rewarding career.

You can find Paul online on Instagram @newwaymediation and online at newwaymediation.com.

Music in this episode is from Bungalow Heaven. You can find more music from Bungalow Heaven and singer/songwriter Gretchen DeVault at gretchendevault.com.

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Show Transcript

00:00:22:22 - 00:00:46:13

Paul, Welcome to the Queer Divorce Club. I'm so excited to have you here today. Thank you so much for having me here. I'm excited. I'm looking forward to talking with you about some of the legal aspects of divorce and mediation.

00:00:46:15 - 00:01:08:23

And I know you can't give us all legal advice. You want to talk about that, but you can give us some some information that we might need as we go through the process or actually anything I can do to help. Okay. To start us off, can you give us a quick background of your connection to queer divorce and what you're hoping to share with the listeners today?

00:01:09:00 - 00:01:42:18

Sure. Absolutely. I am not a queer person, but am intimately familiar with queer divorce. Some of your listeners, your viewers might have seen Mormon No More, which is a Hulu docu-series about my ex-wife becoming aware that she is a lesbian and leaving the Mormon Church and meeting a another lesbian, former Mormon and falling in love and starting a family.

00:01:42:18 - 00:02:22:08

And so I became aware that she was a lesbian. Shortly before we separated, she let me know and ever since then we started the divorce proceedings have become divorced and now we are co-parents. Her and I and her new wife's out and so I was a practicing attorney at the time and becoming a single dad 50% of the time, forcing me to change my practice around.

00:02:22:08 - 00:02:49:20

And now I do divorce mediation. All right, So can you explain a little bit of the basics of how divorce mediation works and how it might be different than going through the full process with attorneys or not with attorneys or, you know, how the different processes might work? Yeah, absolutely. First, the way I have to do the legal disclaimer, like all attorneys do.

00:02:49:20 - 00:03:17:01

So the information provided on this podcast is for informational and educational purposes, is not intended to be legal advice for anybody. When I do divorce mediation, I'm not sitting in the position of attorney. Mediation is not legal practice. And so therefore, nothing I say in terms of mediation is meant to provide legal advice. If you need legal advice, please reach out to an attorney who is licensed in your jurisdiction.

00:03:17:03 - 00:03:42:24

That being said, divorce mediation is a process that allows you and your spouse to work together with a neutral third party called a mediator to reach an agreement. In the terms of your divorce, the mediator is not a judge or an attorney. They don't have the power to make decisions for you. They don't have most mediators don't even give advice.

00:03:43:01 - 00:04:06:00

I come at it from a slightly different approach where if if the couple can't make their own decisions, I provide alternatives for them. But none of it is legal advice, none of it is binding. So mediation is different from going to court in several different ways. First, it's less adversarial. It's not about winning. It's about coming to an agreement In court.

00:04:06:00 - 00:04:40:05

You have a winner and a loser. The mediator is essentially powerless. And where the judge holds all the power, a mediation is also completely confidential, in most cases in my contract. So before we start mediating, I state that neither party is allowed to call me to the stand or anything like that. So anything set in a mediation mediation session is completely confidential, where in a court everything is recorded and is often publicly accessible.

00:04:40:07 - 00:05:01:11

The second mediation is usually much faster and less expensive. A court can take months or even years. Mediation My quickest cases. It's been over two or three months. The longest case is several months. But those are when there's more disputes and it is a little more adversarial. In some cases, you're not waiting for a judge to make a decision.

00:05:01:11 - 00:05:24:02

You're working directly with your spouse to reach an agreement. And third, I think mediation is ideal for people who need to maintain their relationship after their divorce, especially if you have kids or if you have business to businesses together or so on. The focus is, like I said, it's not a winning and losing like it is in court.

00:05:24:04 - 00:05:48:24

It's about creating a solution that works for both of you, usually instead of both people being happy, you know, you're never going to reach an agreement in a divorce that makes both people happy. You're going to reach an agreement that both parties can live with. And that's sort of the goal. Yeah, kind of like if you especially have kids, I'm just thinking about that as an example is you're going to have to co-parent.

00:05:49:03 - 00:06:20:20

So whether you parallel parent or co-parent, you know, mediation could maybe give you practice on figuring out what you need for the kids and how to go through all of that logistically. Exactly. Do you have cases so you mentioned mediation to is confidential, but that means so somebody could go through mediation and still potentially go through the court process if there if that's necessary based on one of the, you know, spouses filing, you know, needing to go through the trial process or maybe not reach an agreement, is that correct?

00:06:20:22 - 00:06:57:18

Right. So mediation can fail. It's not without risk. So, for example, if you if you can't resolve a custody issue or you can't resolve the property distribution or support orders and that sort of thing, sometimes you can just have so much animosity between the couple. So I recently I had clients where they started out. We started doing a Zoom mediation and that devolved into so much vitriol that now we have to do separate sessions for each of them.

00:06:57:20 - 00:07:21:11

And that's I talked to Party one and get all their information, get what they propose, go talk to a party to and go back and forth and so on. And that's not ideal for mediation. The best mediation works when the three of you can be in a room together and have civil discourse and go, okay, you get the kids on Tuesdays through Wednesdays, we get the kids on the way, or whatever the case may be.

00:07:21:11 - 00:07:52:13

But you know, in cases where there's so much anger and hurt and, you know, face, divorce is hard, especially after a long marriage. There's a reason why people get divorced. It's not because the relationships are going great. And so, you know, there's a lot I allow anger. I allow yelling and crying in my sessions. But then, you know, we take a minute and we try to forgive each other and forgive ourselves for those things and then get back on track.

00:07:52:15 - 00:08:11:00

So it just trying to think about the process, too, on the other end. So if it so if it's too adversarial and you can't resolve and it fails, it could go to court on the other end. So you're going through the process amicably and like, oh my gosh. And I go, Well, I can't say that word, Heidi. Family friendly.

00:08:11:00 - 00:08:26:24

Friendly. That's a good that's a good way to say it. Oh, my goodness. So if you're friendly in the divorce, you can technically do the paperwork all on your own. But mediation could be a step beyond that to help you figure out what you know, what all the details of everything you might have to figure out in the process.

00:08:26:24 - 00:08:52:08

Right? So even when I was divorced, being an attorney, I didn't want to handle it myself. I thought I could, and we set out that way. But after months and months of me dragging my feet, realized it would be best to go through a mediator. Lena And I'm Lena's, my actually. And I have probably the best ex-husband ex-wife relationship you could possibly have.

00:08:52:10 - 00:09:22:21

However, you know, you don't. You're not always thinking clearly in divorce. Divorce is traumatic for most people who go through it. It certainly was for me. And so I wasn't at my best decision making. And there's so much that goes into it. Your divorce order needs to cover everything. It needs to cover all the marital property, all the individual property, every issue related to kids.

00:09:22:23 - 00:09:45:07

And you can't leave ambiguity in there or else it's going to be rejected by the courts. And so you might have the best understanding with your ex. But is that understanding going to last 15 years, depending on how young your kids are, is that, you know, if if your ex is entitled to a portion of your pension, you're going to be paying this person the rest of your life.

00:09:45:09 - 00:10:13:12

And so, you know, you need to have everything laid out in there and a mediator or an attorney, he knows what to do. They have lists of things. They've done it many times before. And so, you know, you got to have all the details taken care of, all the T's crossed, all the I's dotted, you know, stuff you wouldn't think about like the difference between fall break and spring break and who gets what time or, you know.

00:10:13:14 - 00:10:44:17

So one of the things that I always put in my divorces, unless the parents don't want it, is each parent is entitled to two uninterrupted weeks in the summer and you know, most people think like, oh, yeah, that's common sense. Each parent should get a summer vacation with their kids. But, you know, we also think about, okay, on odd years mom gets that she has an even years dad. Yes in queer divorces mom one gets to choose then mom two gets to choose, for example.

00:10:44:19 - 00:11:07:15

And if you don't think about those things, those times conflict. And when do you have to have those decisions made? Well, if you don't make those decisions by May and you're starting to think, well, I want two weeks in August, you know, there's plans at school, there's camps, there's all these things, extracurriculars that involve so So if you plan it out and you sort of know the path of parenting for the next 15, 20 years, you know who's going to pay for college.

00:11:07:15 - 00:11:30:09

That source, this this all goes in the divorce. Who needs life insurance? Who doesn't need life insurance? Those aren't things that maybe the layperson is going to think of on their own. And but if you know somebody dies or one of the kids gets into trouble or you get remarried, you know, things start to look different. You know, all of these things can can cause a lot of problems, even in the best relationships.

00:11:30:09 - 00:11:49:03

But if you've got the plan on paper and you both agree to it, you can say, well, you know, we've agreed to this situation. Let's let's use this as our baseline and then negotiate from there. Right. So your job as a mediator is then to make sure you're thinking of all of those scenarios. I'll take that into the future that you can anticipate.

00:11:49:05 - 00:12:09:21

It's not just resolving today's conflict, it's resolving the conflict for the next 20 years, really. Right. And it can be hard in the moment when you're going through that trauma to think, yeah, like you're saying, it's really hard to think about what I what's going to happen ten years from now. Or maybe things are going really well. And then my ex marries somebody that I don't really like or that throws a wrench in.

00:12:09:21 - 00:12:28:22

You know, there's all these things that could happen down the road that can make it more difficult and one of the mantras we have in sessions is divorce changes and everything. So you spent 15 years married to someone, You make a lot of plans and you have a lot of expectations for your life. Well, as soon as you guys decide to get divorced, all those get crumpled up and put in the garbage.

00:12:28:22 - 00:12:52:08

So, yeah, if you were planning on that van life retirement, that's not going to happen. You know, after divorce, you're going to you know, first of all, the the earning partner, if there's a stay at home parent and an earning parent, the earning parent now has to pay for two households for a number of years. And so financially, it can be devastating for the learning parent.

00:12:52:08 - 00:13:24:11

Well, they just lost that all their security. And, you know, so, you know, you have spousal support and child support, which are two separate things and some are negotiable depending on the state you're in. Some are not as negotiable and so on. Yeah, I think that's important to also remember, you just said as the state you're in and maybe we'll get into some of that and some of these other questions, but excuse me, each state has different rules around divorce rate, so it's important to make sure you're working with somebody who understands your state's rules.

00:13:24:13 - 00:13:47:13

Yeah. So divorce is almost as old as marriage. Marriage is about 3000 years old or excuse me, about 5000 years old. Started about 3000 B.C. And divorce, the first codified divorce we have is 1760 B.C. in the Hammurabi code. So, you know, within 1500 years, which I guess it's a short time for humanity when most people didn't rate.

00:13:47:13 - 00:14:11:00

I mean, they needed to come up with rules. And those rules are to protect usually, you know, in traditional cases, it's the wife, but it's the it's the underneath party. The party who stays home with the kids, what are they entitled to? And and states and the Supreme Court have, you know, flipped it. It used to be just the dad paid.

00:14:11:02 - 00:14:33:01

But now that we have, you know, post-industrial revolution, you have women making more money than men sometimes. Now we have our queer families that are recognized by law. And so, you know, that's kind of turned upside his head. So we look at who is there, you know, to support the financially supporting family partner, the nurse, the nursery partner.

00:14:33:03 - 00:14:56:11

We don't have a lot of life laws for where that's 5050. But I think that's probably, you know, the next 20 years of divorce law, we're going to see more recognition of that. Yeah. So it's all shifting and really queer divorces. The youngest of all those, right? Because queer marriage is the youngest of all of those and wasn't able wasn't federally legal in the US until 2013.

00:14:56:13 - 00:15:26:15

So what so now that we're in this opportunity for LGBTQ, a plus individuals to get divorced, what are some things that they need to keep in mind? And you know, where should they start if they're thinking about getting divorced? So first, make sure you're safe and healthy. You know, divorce is super hard and I think the first thing I would say is look for support, not just financial support.

00:15:26:15 - 00:16:08:23

That's not as big as moral support. So thankfully, early in 2017, the Supreme Court in I want to say it's possible, I think is the name of the case. And the Supreme Court basically said all the straight law rules apply to queer divorces, to LGBT. Sorry if I accept that, knowing that's okay. But in cases, you know, with adopted kids, sperm donors or artificial insemination, these different situations that rules should apply across the board.

00:16:08:23 - 00:16:38:14

So if marriage is good, if marriage is equal, then divorce should be equal. Now, we're at a time in our country where there are states that are fighting against equality in their rules. I hope that doesn't apply a ton to the divorce cases, but you might have some activist judges who ignore the Supreme Court. We're seeing that recently.

00:16:38:16 - 00:17:11:15

And hopefully that's less that's less often the case because this can have some real consequences for individuals. But, you know, divorce between members on the LGBT spectrum since 2017, they've had the same rights as straight parents. So while divorce is hard for everyone and no matter what sort of relationship you're leaving, so I'm getting sidetracked by statistics because this is really interesting.

00:17:11:17 - 00:17:42:03

Yeah, no statistics, you know, so we don't have a ton of data coming out of this. So we only have ten years, right, since October. So and only five years since. Pablo. Yeah. So what's kind of neat is the queer divorce rate is lower than straight divorce rate, but that makes sense of Sweden only had two years right.

00:17:42:04 - 00:18:08:23

To say, you know, let's look 20 years. Yeah, let's see what it is. But you know, lesbians is a little higher than for gay males. But again, all this data is is really new. And so, you know, sorry, you use your question again because I've been distracted by this. So yeah. So when you should have the same rights to your kids.

00:18:09:03 - 00:18:38:04

Yeah. If you're adopt, if they're adopted or from a donor, it's going to be based on, on the relationship that you have for a divorce. Although you know, again, what activist judges do, and it's also important to remember that most of the states, while all states observe no fault divorce, most of the states still have fault divorces. And so, well, in mediation, you're always going to work from a no fault standpoint, and you're going to work from a 5050 standpoint.

00:18:38:04 - 00:19:10:09

You're going to go into the relationship, the mediation relationship, or with the no fault 5050 mindset. If mediation fails and it goes to the judge, then it goes in and default situation. So, for example, if you happen to be a straight woman or in a straight marriage and you work in my case, the wife comes out as lesbian and you get a divorce because of that, if you're in one of these states that has felt the worst, which also happen to be the more conservative states, right?

00:19:10:11 - 00:19:34:12

The more liberal states have the no fault as the only like California, for example, where I live, all divorces are no fault divorces. So it doesn't matter if you're cheating or whatever. So on and so forth. Yeah. And where that comes in is custody and support. And so if it's your fault that the divorce happened, you could get less alimony and, and or child support and or less custody.

00:19:34:14 - 00:19:57:02

That's, that's where you really have to worry. So. Okay. I want to go back to a couple of the things you said to clarify a little bit. So I'm hearing you on that there, that most states after 2017, the federal laws are all like whether it's a heterosexual marriage or a queer marriage or queer divorce, the laws should be the same across the board.

00:19:57:02 - 00:20:21:12

However, there are some states where two things could happen. Either a specific judge could potentially rule a different way based on the type of marriage it was correct or and you could be potentially considered at fault if you're the one that came out as queer and left the relationship. Is that correct? Okay. So and it was probably not possible.

00:20:21:12 - 00:20:45:10

I'm sorry for for missing the letter, though. So is the case. So yeah. And since 2017, what's known as the paternity presumption states that laws that traditionally apply to a man who is married to the mother of a child during the major mother is presumed to be the child's father. Unless you can prove that they're not the child's father.

00:20:45:12 - 00:21:08:16

So they apply that to adoption and sperm sperm donor cases. So that means that the adoption by married same sex couples is now legal in all 50 states. It also means that the wives and mothers who have a child during the marriage through assisted reproduction, are considered the child's other parent. So if you a non birth giving mother, you're still considered the child's parent.

00:21:08:18 - 00:21:47:16

Okay. And that has evolved in most states to me. So it was apply the Supreme Court applied it to adoption and most states have applied that to assisted reproduction as well. So these are, you know, where the difference between, you know, gay men almost always have to adopt. Right? Right. Or at least one of the parties does. Women haven't necessarily done that because, you know, where lesbian partners have gotten together, one gets pregnant and the other stands in is the mother.

00:21:47:21 - 00:22:11:16

Now, the Supreme Court saying if they're married, that woman who has been standing is the mother without the adoption is to be considered the parent. Okay. So even in cases where if there's a biological mother, in a non biological mother in the relationship and they did not adopt the child, they could still they would still get parental rights as long as they were married at the time of the birth or adoption.

00:22:11:22 - 00:22:33:12

Okay. Yeah. Okay. What about the case of stepparents? Maybe this is a whole nother thing, but since we're talking about kids who say my partner and I got married, we both bring kids into the relationship. We're married for ten years while the kids are in, you know, in school and still growing up and still in the house when we get divorced.

00:22:33:14 - 00:22:54:04

Would that mean that there is a is there a potential for parental rights on either side or is that going to depend on anybody's other parents or other? You know, there's a lot of things. Right. So, too, in your hypothetical, is there an active father in this situation? There is an active father. So that would make a difference, right?

00:22:54:10 - 00:23:20:18

Absolutely. So, yeah, the courts and considering this, first of all, nobody has a right to former stepkids to custody or visitation or former stepkids and no one has a right to support them unless that's an agreement that you made in like a prenup or something like that or, you know, a up, I guess, or even the divorce, you could.

00:23:20:20 - 00:23:55:08

But but it's not going to be in there. So, you know, the bonus kids are if if the relationship between the moms has soured unfortunate innately, there's a strong chance you're going to lose that relationship with those bonus kids. Okay. So in that case, there isn't a built in system, but there is. Yeah, but there is. If either the child is adopted by both parents or only one is a biological parent and the baby is born during or adopted during the time of the marriage.

00:23:55:10 - 00:24:21:00

But or you could be in an adoption. You could be adopted at any time. Okay, So they could raise the legal obligations there. But, you know, in the case of presumed paternity, that's the term that they use. They don't they haven't adjusted presumption to you know, that's an old term that's been around for thousands of years, but there isn't.

00:24:21:05 - 00:24:50:02

So there you'll have the presumed paternity or the presumed parenthood, I guess, would be a better way to state it. And if it's within the relationship, a marriage relationship, and you could still make an argument in court to say if the relationship existed before marriage, because a lot of a lot of queer marriages started before marriage was legal and have then evolved into, you know, got marriage sense, the Supreme Court and Oberge fell.

00:24:50:04 - 00:25:16:23

But you're not going to have that automatic presumption. So if you do have to go to court, you can make arguments for it, but it's not going to be automatic in it. And, you know, so it's going to be an uphill battle. Okay. But there are some safeguards in there now for for the system that's good for at least people who have gotten definitely married in the last ten years and a doctor who had kids during that time or were married legally when, you know, because different states, some states had it legal.

00:25:16:24 - 00:25:37:18

I mean, you had Vermont and Hawaii and California for a time before Prop eight and then after, you know, so so, you know, it's complicated, but you know, at its at its root divorce, divorce and marriage is more about the transfer and distribution of property than it is a matter of conception or religion. And that sort of thing.

00:25:37:20 - 00:26:06:12

The religious side of of marriage always existed, but it wasn't codified into law until really the Middle Ages in the early. Okay. So most of it. So the the stuff you work on as an attorney or as a mediator is specifically about how you're sharing custody of the kids, how you're dividing property, how you're dividing finances and debts, you're missing any big categories.

00:26:06:12 - 00:26:30:17

And these are the three big things is that assets, kids. Okay. And you mean you can you can agree to it? You know, the great thing about mediation is that you can come to agreements about anything. You can share a boat, you can share houses, you can share pets. And a great thing about mediation, as long as they're legal and conscionable the judge is going to rubber stamp them.

00:26:30:19 - 00:26:54:05

And so even if you have a contentious divorce, if you could work it out through mediation, you're going to get better or the same agreement you'll get from the judge in most cases. Now, in cases of abuse or, you know, drugs are where it's not safe for the kids, I would still say try mediation first and let mediation.

00:26:54:09 - 00:28:09:24

I mean, that's I'm saying that as a mediator. Sure. But, you know, what do you have to lose in going to court? You know, and if that's where you're going to end up anyways, you might as well try to make it faster and cheaper. And your agreement before you let the courts decide for you. Sure. So in the case of, say, one of those scenarios, so say one of the spouses is maybe medically not fit to be a parent and talking about having kids here or maybe even making decisions about property or finances, you thought maybe those two scenarios are different, but is it possible to start with mediation and work with the parent who's hoping to have more custody of the kids, but the other parents have to agree to it, right? Right. In the mediation. Okay. So here I mediated a case recently, and it was a case where a mom realized that she was gay and along the way and very amicable and no contention between the two. But we shifted it from you know, it started out with like this 70% mom's custody, 30% dads.

00:28:10:01 - 00:28:32:02

But by the end of it, realized that, you know, maybe mom was a better dad, was a better fit for the kids to live with full time. And then so we negotiated. Dad's got 100% custody, but moms got 100% access to the kids. And so mom and kids are coming over. We decide this decided this before dad goes into a new relationship so intact.

00:28:32:04 - 00:28:57:14

Yes, Dad starts dating again. Or when dad starts dating again, all future wives have to accept that lesbian mom can come over any time she wants. Right? Okay. So that's a stipulation in their divorce agreement. You know that she only has to give work half an hour's notice, I think is what we did. And so, you know, for her health and her lifestyle that fit, that's very that's an unusual case.

00:28:57:16 - 00:29:28:21

That's the only one I've done like that recently. But, you know, that's a great thing about mediation. As long as it's legal, you can you can agree to anything for what about cases where so is there an opportunity to use mediation if, say, you're looking at you don't have kids, but there's financial issues, I guess no matter what I'm thinking out loud here and talking a lot at the same time that if one doesn't agree, then you're going to have to go to trial.

00:29:29:01 - 00:29:49:09

So no matter what. But is there a case where you could go into mediation if, say, one of the spouses was in a mental hospital or institutionalized or something like that, or would you have to go to trial in that case? So when somebody is institutionalized, they can't make decisions for themselves. And so right to a mediation agreement.

00:29:49:11 - 00:30:12:10

And so in a case where you have somebody, you know, they would have to have a representative either by their estate or from the from the court, the court will assign somebody to to handle that. Yeah, but you're not it's not like you used it used to be you're not forced to stay in that marriage forever because somebody is institutionalized.

00:30:12:10 - 00:30:38:21

You can still get a divorce. And in those cases, either temporarily or permanently, you're going to get full custody and you'll get the benefit. But there needs to be somebody you know, that person will be assigned somebody to make sure they get a fair shake on this because they're still going to need finances. Or if they took care of the kids for 15 years, they're still going to be entitled to alimony or spousal support, depending on the state.

00:30:38:21 - 00:30:59:16

They have different names, But, you know, they wouldn't necessarily deserve child support because they're not supporting the kids. That's somebody else is supporting that. But, you know, and they're still entitled to 50% of the community property or the marital property. Okay. Yeah, that makes sense. I mean, it obviously has to be fair no matter what space there.

00:30:59:16 - 00:31:21:19

And I just was wondering which system they could use that cleared that up for me. Thank you. I think one of the things that's been on my mind a little bit and I think actually it's popped up in some of the groups I'm in like late Bloomer Lesbians group and, you know, people who have come out after their got divorce from a heterosexual marriage, something you have familiarity with is there.

00:31:21:19 - 00:31:39:23

And we talked about there's some cases where it could potentially be of a negative to them. But overall, is it right that the most states, most judges are not going to give that an issue? Or when could you see it come up as an issue? And what types of things should people keep in mind if they're going through that scenario?

00:31:40:00 - 00:32:00:00

So in the 18 states that have no fault divorce, it shouldn't be an issue at all. Your sexuality should never come up. If it does come up, the judges are going to go, That's not issue. We have no fault divorce. What we need to make sure is the best interests of the kids and the fair equal distribution of the property and and support.

00:32:00:02 - 00:32:15:24

So where it's going to affect you most is going to be in custody. If you if it is an issue, if you're in a state that has an adult divorce and you have an adversarial partner. So you're going to have to have those two things together because the adversarial the judge can only give you what somebody asks for.

00:32:16:05 - 00:32:43:02

Right. And so the other party would have to say, hey, this late blooming lesbian, it's her fault we're getting divorced. So she's not alimony. And a more conservative judge might agree with you. And in most states, there's no laws. They just have standards when it comes to alimony or spousal support. Okay. And custody. You start with the basis of 5050 and then kind of work backwards from there.

00:32:43:02 - 00:33:04:05

Looking at the parent's schedules, who has been the traditional caretaker of the children and so on. And so and there are going to be separate issues and the judge is going to deal with each issue separately, or at least they're supposed to do so with the alimony. And I think this is probably the biggest dangers. So in most places, if you're married more than ten or 15 years, that's sort of the standard.

00:33:04:08 - 00:33:27:24

You're entitled to alimony for at least the length of a marriage, if not longer. And in most cases, it's going to be around between 30 and 40% of the gross income after child support. So you put it in, you know, most states have a statutory child support calculator. You put your information house, but you spit out a number.

00:33:28:00 - 00:33:52:06

So let's say that's the child support for lack of this is $5,000 that the more, say, one partner was making 20,000. So after child support, its 15,000 and mom doesn't make any money. Stay at home mom or stay at home. Parent doesn't make any money. And so we're going to say, okay, stay home, parent can make minimum wage 40 hours later.

00:33:52:06 - 00:34:16:07

So let's say that's 1500 dollars a month or whatever, whatever, whatever, or, you know, 1500 dollars a month income. We're going to do this calculation and and between 30 and 40% based on all the factors we're going to say, Mom used to take home $8,000 a month for 15 years. A judge has discretion. Josh could say, you know, $12,000 a month is more fair or well, because it's her fault.

00:34:16:12 - 00:34:36:22

You know, maybe she lives $1,000 a month for five years. Okay. Because there's no law. The judge can throw their discretion in there. Where in Alabama, where in a mediation situation, we're just going to go off with a base or in most cases we're going to say this is what it is, and then let the parents negotiate up or down.

00:34:36:24 - 00:34:57:21

Okay. So there could be your situation. Right. And I guess if there's a mediator, I guess you could still have somebody who is adversarial and become, you know, come to a discussion on that. So that could be a good option. Somebody who maybe is in a county, in a state where they know the judge is it's a fault divorce and potentially that adversary.

00:34:57:21 - 00:35:32:01

So they could use mediation as a potential buffer. I think mediation might be a way around conservative judges, although you don't think that way in a divorce. Right. Right. You know, you'd have to be pretty Machiavellian to plan this all out. And you don't get to choose your judges. You get assigned judges for partly for this reason. And I would say probably 90% of judges in the country are just going to go off the fairness sort of standard that's in place.

00:35:32:05 - 00:36:09:01

MM But with the rise of the sort of the political environment that we're in, I don't want to name names, but, you know, we see, you know, we see transpeople being attacked every single day. We're seeing drag shows shut down and that sort of thing. But the big against gay marriage is that it's destroying families, which is ridiculous because gay people tend to stay married longer and more people do.

00:36:09:03 - 00:36:34:09

But, you know, you get you get one of these judges who's got an ax to grind. And, you know, we're all we haven't seen it yet, but it's certainly a possibility. And we're seeing the opposite in the most in most cases, because most judges, most judges try to leave their personal values behind and judge according to the law.

00:36:34:10 - 00:37:07:22

That's what they're there for. But, you know, just you know, in Texas, you had a case where it looked like it was going to go the other direction. But in the end, the judge said that you assigned alimony to a lesbian mom who didn't adopt the kids and wasn't on the birth certificate. So, you know, her former partner was the biological mother of this kid.

00:37:07:24 - 00:37:27:05

I never found out where the kid came from. It wasn't in in any of the articles I read about. But the judge sort of on the end, you know, flipped the point of view and said, no, she has to pay alimony because she's acting as the dad in this relationship. Unfortunately, you have to see it through the filter of the dad.

00:37:27:05 - 00:37:48:16

We're not sure we can engender marriage yet, but I think we're going to right? Oh, that's a lot of things I'm processing a little bit, I think. So if I'm thinking about what you're saying right now, there's not always a way to know necessarily what I mean. There is that you can look at all the judge's records, right?

00:37:48:16 - 00:38:07:12

So but you don't know which judge you have until you get into the into the last stage of divorce. Right. So if you decided to use attorneys, you might not know who your judges until you've already paid all the money and gone through that. Right. You don't write it. Don't write your judge. Yeah. You get assigned your judge the day you file, and they just have first come, first serve.

00:38:07:12 - 00:38:31:20

And so, you know, case one goes to judge, Case two goes to Judge B, And so on. And at I don't want to, I don't want to come out and say judges are bad or whatever, but they, you know, they have a lot of power in family law, family law is less regulated by Congress than it probably should be.

00:38:31:20 - 00:39:05:23

You know, I mean, it would not be federal Congress. It would be the the state legislatures. I mean, you know, state legislators like state legislatures are also where politics is most adversarial. You know, the people who run for state Senate tend to be the rightist and the leftist, the people. Right. Right. And and so, you know, maybe that's not issues that they want to tackle or maybe some issue where they can't find enough common ground to be able to settle.

00:39:06:00 - 00:39:38:01

And, you know, if it doesn't involve them or enough constituents, it's it's not that big of an issue. But if you know, as if I was a law professor and I was teaching a queer family law case, I would encourage, you know, I would write an article asking state legislatures to try to make it that to codify the fairness and remove the genders out of family law, because it's still very, you know, in most areas it doesn't matter.

00:39:38:01 - 00:40:01:05

But in family law, there still a lot of gender that that, you know, it's based on man and woman. I don't think that's going to go away soon enough, especially with the way politics is right now. But I think eventually it will. Yes, Please examine the direction. Yes, I think we are so I think I'm going to try to recap some of the main highlights of what you're sharing.

00:40:01:05 - 00:40:31:04

So in 2017, there was the court case that you mentioned that made it so that all of the gendered rules around divorce also were the same for queer marriage. So in most states where, you know, that's okay, so and I will go well, so yeah, so no fault divorce exists only in a minority. So divorce exists in all 50 states plus the DC.

00:40:31:06 - 00:41:01:19

However, there's only 18 or 19 states where no fault divorce is the only divorce option. Okay. Leaves 30 plus states, plus the District of Columbia and Puerto Rico. And Guam and all places where you can still have an at fault divorce case was part of on or plotline probate and sorry, you can send me the name. I'll put it in the show, you know.

00:41:01:19 - 00:41:31:24

So while of course will teach proper treat property distribution when it comes as equal, they're supposed to create those equal. And you have to On saying parenthood is now assumed in certain cases. Okay. Mm hmm. That that is the Supreme Court. And you have at least two layers of court before you get to Supreme Court. The lower court is supposed to follow the Supreme Court.

00:41:32:01 - 00:41:57:23

Okay. And in Tennessee, you just had that. You had a district judge saying no drag shows or are part of free speech. So, yes, if we saw a judge doing his job, but how many judges have we seen? I agree with I mean, Roe v Wade was overturned. Mm hmm. Right. I had to go through district court in the states, court in the federal circuits, and then get up to the Supreme Court.

00:41:58:03 - 00:42:22:02

So there's there's, you know, the damage. You know, the Supreme Court doesn't see individuals. They see concepts as individuals who are paying alimony and have custody. And it's little kids who are being taken away from parents they might have known for several years. Mm hmm. He had their whole lives in some cases, you know, the potentiality for problems and and mediation.

00:42:22:02 - 00:42:48:04

I must say mediation solves the problem. Right, right, right. Because mediation can fail. Mediation. A lot of times, mediation is balancing on a on a razor's edge. Yeah, but if you can get through mediation, you're more likely to get that rubber stamp, get it over with faster. And your agreement what you and your ex decided to do, not what third party political activist judge might have done.

00:42:48:06 - 00:43:15:11

Right. You'll have more control over this scenario. 99.99% of your viewers aren't going to deal with that, right? Yes. Yes, I know that. But we want to make sure that, you know, that .00 1%, you know, and you know, who knows how big of an issue this is going to be. You know, if if if the right gets more anti LGBT, more homophobic, more everything, this could be a bigger problem.

00:43:15:13 - 00:43:52:21

Thankfully, I think that, you know, these guys are on their final death nails and the former generation's going away and they just want to get everything they can to keep it their way as long as possible. And they're going away soon. Yeah, hopefully. Hopefully we don't. Yeah, but it does sound like like you're saying for 99.9% of the people who are listening the process in most in most states, except for there's a few potential judges around in these states where there could potentially be fault cases and an adversarial spouse, that there could be struggles.

00:43:52:21 - 00:44:23:07

In all the other cases, the process is relatively equal between heterosexual marriage and homosexual marriage, or if somebody is also coming out after their marriage. Okay. One more thing. That's kind of off topic. Yeah, but sure, sure. Go. You know, I think, you know, what I've seen is that people need to forgive themselves a little bit more and give space.

00:44:23:07 - 00:44:53:14

You know, that's what one of the reasons I love mediation, because it gives space. No decisions in mediation or ever final until you submit the paperwork to the judge so you can go back and change anything if you have to. So if there's a late blooming lesbian, like you said, or a gay man who comes out and who is in a hetero/straight marriage, then you know, there's a lot of trauma in that.

00:44:53:16 - 00:45:19:15

You know, for me it was kind of clicked like, what? She's she's a pilot. I kind of guessed that like she said, you know, we were going through some stuff and are you gay? And I almost said a joke where she's like, Yeah, say that. And but, you know, I joined a bunch of like, what is really like groups and stuff like that that dealt with this sort of stuff.

00:45:19:17 - 00:45:48:18

And I didn't sort of I didn't find that anger. For me, it made a lot of sense like, Oh yeah, well that explains a lot why 13 years of my life that some people there's some real anger in her. I mean, an anger is always a secondary and yeah, always coming from a fear or, or her or something like that and you know, so both parties, you know, one party is having a new awakening in their life, their brand new little baby, you know, thing.

00:45:48:23 - 00:46:05:18

In a way, I'm gay. I get it. Do all these new things in my life. I get it. I get to be myself for the first time. The other guy's gone or the other person is going, Oh, man, I expect all this to happen for the next 50 years in my life. I expect to have order. I love you so much.

00:46:05:18 - 00:46:35:22

And now you want to get, you know, all these different things. And and during that process, you're going to say and do things that might hurt each other's feelings. But in the end, you know, especially if you have kids, you're going to have to be in a relationship forever. Right? Right. Yeah. So, you know, give know the thing about love, about mediation and this is why I went into it, is because you get that space to love each other through the hurt and the pain that you can decide.

00:46:35:22 - 00:47:03:11

You get to decide. You're like, Yeah, I can't live with you anymore, but I can still love you. And, you know, if you can get to that point, aside from all the Supreme Court rules that are going on, you're still raising kids together, right? Right. You know, put their needs for kids, need loving parents. And it doesn't matter if the parents are two women, a man and a woman.

00:47:03:13 - 00:47:33:21

In my case, we got two women, a man and then another man because I was married before, too. And we're all with each other's kids and while I don't parent my I call her my ex-wife in law. Yeah, I guess I'm like, well, I don't parent my ex wife and lost kids. I'm still there every birthday. We're going to require performances, a service stuff, taking them to the beach together when they you know sometimes we train our kids and and you're still a huge influence.

00:47:33:21 - 00:47:51:09

And if you're showing those kids the right way to live, which I think examples as a parent is the best way to teach your children, you're showing them that their needs are more important, that love is better than hate or anger or anything like that. If you can get through that. And I think mediation is the process of doing it.

00:47:51:09 - 00:48:21:17

Yeah, So mediate mediators are kind of split between attorneys and mental health professionals, right? Sort of have two different avenues to go for mediation. I think that's wonderful. So whenever anybody's you're shopping for mediators, do you need you know, you need to stricter legal side of things. Do you need somebody who is trained in dialog and negotiation? Do you need somebody who is a therapist in their other job?

00:48:21:19 - 00:48:59:20

You know that I think. Yes. All of the above here. Yeah. You made that sound so beautiful. How did you make divorce and mediation sound so beautiful? Like, Oh, that's amazing. I'm one of those guys who just loves love and kids. Yeah, I'm a child of a very contentious divorce. I never had a relationship with my mother. My parents were divorced when I was really young, and if I could change anything about my personal history, it would be to have a relationship with my mom and to have, you know, I had a couple of different step moms and and, you know, one of them was super impactful in my life in a positive way.

00:48:59:20 - 00:49:18:10

One was impactful my life in a negative way. And my ex-wife, well, you know, she is also the child of divorce. Same situation, bad to worse, very contentious. And so we decided from the very beginning we would always put the kids first. And, you know those what would Jesus do? Bracelets that kids were in the nineties. Yeah. Yeah.

00:49:18:12 - 00:49:37:24

We basically decided wouldn't our parents do would be through our mediation process and divorce process. So if our parents would fight, we would come together. The first year we decided that at least once a week we would do something, all six of us together. We have four kids, so it's something all six of us together and we forced that.

00:49:38:01 - 00:50:03:01

Now we do something that we don't even planet. You know, if they're having a party, I'm invited if I'm doing their thing. And for example, I called, I was I was nervous about talking on YouTube. But yeah, it's only ex wife. I go, give me a pep talk. You know, she's still my best friend. And I think that's because, you know, the marriage dissolved, not because it fell apart, but because she's gay.

00:50:03:03 - 00:50:23:22

Yeah. Oh, yeah, she's totally gay. But because she was gay, we didn't necessarily have the traditional, you know, intimate marriage situation that straight couples might have. And it was pretty platonic in a lot of cases. And so we became best friends and we became really good at working through things because we had a lot of issues to work through.

00:50:24:02 - 00:50:48:01

Mm hmm. I think you a lot of us. Yeah. Yeah. Someone's not straight in. Someone's straight, and you're ready. You got a lot of challenges in that relationship that you have to overcome. And and if you can spend, you know, a decade and a half overcoming them, you get pretty good at solving problems. And so, you know, that's kind of where I think where, you know, I ended up that's why I love mediation.

00:50:48:03 - 00:51:12:24

So I started this. You can see this is my living room here and got a pride flag up. So my boys know that I support their mom. Yeah. And she makes sure on Father's Day they get all the cars, you know, boys to make cards. And so we support each other and what we're really doing. Yes, It's nice for me and her, but what our kids are seeing is that their parents still love each other and that there's a way through anger.

00:51:13:01 - 00:51:34:18

Yeah. And yeah, you know, divorce is expensive, mediated. Divorce is a lot less expensive, but it's still expensive. You're still supporting two households. You have alimony, a transport, you all these different things. On top of that, you know, you have to clean out half your retirement, half your savings, all these things. You have to split assets. And so, you know, there's room for a lot of anger.

00:51:34:18 - 00:51:55:02

But if you can just focus on the peace side of it, if you do divorce. Right, everybody's happier at the end of it. The kids are better off. It's much better to see kids. Same parents live their true selves in a good then in bad relationship. It teaches them boundaries. It teaches them to be strong and to stand up for themselves.

00:51:55:04 - 00:52:22:10

It teaches them that there's different things in different types of relationships. You know, if you do mediation and divorce, right, you're happier. You're not in a bad marriage anymore, you're not fighting anymore. You got to learn to let go of those things and realize that everything is different now. MM Oh, that's so good. Oh, it's so good. I thought, you know, you didn't.

00:52:22:12 - 00:52:42:02

I'm just thinking about how I think about the. The process for divorce and for me. I'm recently a year out of the legal divorce and two years separated from my ex-husband. So I'm in a similar process that you went through. My ex-husband would be you, and I'm with a new partner, and we're, you know, we're raising our kids together and trying to get the dads in there.

00:52:42:02 - 00:53:12:23

So I think what you're saying about the going through the divorce process, well, makes such a difference when it comes to our relationship. And my ex-husband and I didn't didn't start out doing it really well, but we turned it around and were able to have some discussion, good discussions with attorneys. And then, you know, that really does help as you're thinking about it moving forward, like thinking about the boundaries you can set together and loving each other through it, even though you might hate each other some of the times, you know, like what's the you know, agree with everything.

00:53:12:23 - 00:53:35:04

My ex No, but in front of my kids and and I support everything she says. Books. And the last thing I want them to do is to start questioning their mom. I mean, that's their mom, you know? And I can see I'm super important in my boys lives, but Mom's the most important part in any child's life, at least for the first half, the first ten, 15 years.

00:53:35:04 - 00:53:56:21

So, you know, it's so important for parents to support each other. And if I could give any advice, it would be set. The intention, you know, I know that sort of a woo woo, you know, my my ex teaches Kundalini yoga. And so this probably for me it was all about intentional and breath work and all that kind of stuff.

00:53:56:22 - 00:54:23:22

Yeah So important in, in relationships too, if you set that intention, you know, and then you go, well, my values are whatever your values are, you know, my case is like love, support, you know, understanding that sort of stuff. And so if I go, you know, my intention is to build love, building relationships, teach my kids how to have these so on and so forth, and I can check my behavior is my behavior in line with my boundaries are in line with my values.

00:54:23:24 - 00:54:47:04

And if it's not, I can go back and the great thing about being humans is that we can always ask for forgiveness. You know, we can ask forgiveness, we can change and we can help people. So, you know, while we're maybe you to start out on the right foot, you can be on the right foot today and tomorrow and the rest of your life.

00:54:47:06 - 00:55:07:12

And so can your ex and you can start inviting me to Amy. I think to me that was the most important thing my ex did, was she invited me to everything. Yeah. And at first I wasn't as to her to accept all the invitations. Plus I'm super introverted, so it's like, hard to get me out of the house sometimes.

00:55:07:14 - 00:55:30:16

But as she kept inviting me, I would go to the important things and I realized it was fine. And the more I think now I'm a fixture. Yeah, yeah. You know, I'm part you know, they have their family. I have my family at my house, they have their family at their house. But we also have this big family together that consists of four parents and seven kids.

00:55:30:18 - 00:55:49:16

Yeah. And while we don't do everything that we do together, we discuss almost everything together. We plan everything, you know, for changing the kids school health decision, blah, blah, blah, all the stuff that you need to do in divorce because it's all outlined in our divorce agreement. Yeah, I can't. We can't change school districts without 100% approval all across the board.

00:55:49:16 - 00:56:10:22

Right? So, you know, you got to have those discussions. You got to have those agreements so one parent could hold hostage, but then that's sabotaging their relationship with the relationships. First, let me let your mediator attorney, deal with the legal stuff. You put your relationships first. That's such good advice. And I think we're going to end on that.

00:56:10:24 - 00:56:35:10

Some advice. I thank you so much for walking us through the mediation process and some of these legalities around divorce and your super good advice on relationships and how to end the marriage in a good way. I could see how clients would find you as an amazing mediator in the process. That's awesome. They care. I appreciate it. And I think what you're doing is important because, you know, divorce is pretty new.

00:56:35:12 - 00:56:56:21

It's a new area and there's a lot of people, both straight people and queer people who are trying to figure out and navigate these relationships. Thanks for taking the time out and doing what you're doing. Thank you so much. I appreciate that. And for those of you who want to follow up and see more of our stuff, I'll put it out in the show notes and the website.