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Mediation in Divorce—Cultural and Religious Considerations

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Mediation in Divorce—Cultural and Religious Considerations

Culture and religion are at the forefront of the United States’ diverse population. Individuals hold true to their personal religious and cultural belief systems, even during the times of separation and divorce. Oftentimes, these individuals feel marginalized through the legal separation and divorce proceedings because their religious and cultural identities are not recognized. How do we give voice to these cultural and religious identities, so that our clients’ needs, and desires are heard and met in the divorce process? How do we make a legal divorce work for them, when their marriage is not? This program will provide an overview of the mediation process, and how it serves as a tool when approaching gray areas of diversity in religion, tradition, and customs that courts may not address in separation or divorce. These gray areas cover the topics of parenting, family dynamics in assets and debts, custody, and support.

Transcript

- [Jeanann] Hello everybody. My name is Jeanann Khalife. I'm an Attorney, Mediator and Co-founder of Alternative Divorce Solutions, a law firm located in southern California. Today's topic is Divorce Mediation: Bridging the gap between religion, culture, and the law. What is culture? Why is it so significant in our modern society? Why do we need to take into consideration cultural and religious differences when solving disputes between individuals? Well, we live in a world full of a vast variety of cultures and religions that are central to how people operate. By understanding these differences, we are better able to solve their needs. To put it into perspective, let's look at some statistics. As of 2020 15.3% of the United States population are immigrants. That equates to 50.3 million individuals. Primarily immigrants come from Mexico, India, and China. And they primarily migrate to California, New York, Florida, and Texas. Also, we have a variety of religious backgrounds within our country. As of 2021, a study stated that 63% of our population is Christian, 25.1% of our population is unidentified, 2% is Jewish, 1% is Buddhist, 1% is Hindu, and 1% is Muslim. So if we look at this as actual numbers, and if our population is 331.9 million individuals, then 1% equals to 3.3 million individuals, while 2% equates to 6.6 million individuals. Further data tells us that there has been an increase in interracial, interethnic and different sociocultural marriages, whereas it has increased to about 18% in 2017 from around 5% in 1970. So given this information, what do we do with it? What does it tell us? How can we use this information to better serve our clients and shape our practice areas? Our clients are more likely to be from a diverse background and will have needs they would like to be met that are unique to them. They will have questions beyond the scope of the law when it comes to their divorces, and they will expect answers to those questions. So to better serve them, we will need to understand the law, understand culture, their differences, and discuss the solution of mediation. Let us look at the basis of the law and culture in the United States. The idea behind the law is to provide a universal set of rules that apply to everyone. Possessing a universal set of rules implies that the law has no room for an individual's cultural and religious beliefs and social traditions. However, the changing ethnic and cultural landscape of the United States calls for different cultural considerations in the application of the law, which is a stark contrast to the notion of a universal set of rules that are applicable to everyone. The importance of culture and religion factors are highly evident in today's American society that seeks divorce. This leads us to our overarching question, How do we approach the gray areas of ceremony, tradition, and customs that the courts and law may or may not address? Well, in short, we utilize alternative legal tools available to us in order to bridge the gap. Tools such as mediation and marital agreements. So what is culture? "Culture is defined as a pattern of traditions, beliefs, values, norms, symbols and meanings." Let's keep this definition in mind for later discussions. Statistics also tell us that when considering culture as of 2013, children of first and second generation immigrants increased by 28% in the United States. As of 2019, 13.7% of individuals of the United States population were immigrants, 26 of them being children of immigrant parents. And in California, over 40% of children were born to at least one immigrant parent. That's more than half of the population coming from immigrant families. So with an increase in immigrant families, the following come into play in divorce: Multicultural and multilingual and multi-religious factors. Child rearing practices that are specific to cultural or religious beliefs. Financial responsibility and roles that are culturally specific. Interracial and intra-cultural standards in a household. Cultural diversity and sensitivity are increasingly important factors to consider when evaluating child custody as they heavily influence the dynamic between the parent and the child. In many families, parenting behavior, expectations and philosophy may seem foreign to those of the mainstream culture as they're specific to the family's cultural experience. And this also extends to the parent's relationship between themselves. The lack of awareness and sensitivity towards cultural nuances has often caused a misinterpretation of the nature of the familial behavior by the courts, evaluators and mental health professionals. Resulting in a negative if not devastating impact in determining the parenting plan. As a side note, it's also important to recognize that children have their own culturally specific identity. And so child rearing practices could differ between parents based on their varied cultural backgrounds. Cultural differences that are specific to familial relationships may include parental warmth, affection, and protection, parent and child attachment, parenting styles, values and belief systems, roles and responsibilities at the age of maturity, are just a few. So let's explore when it comes to culture and financial management. There are differences from mainstream society to culturally specific or culturally centered households. In many cultures, there is a division of responsibility between the spouses. Specifically, the husband has a sole financial responsibility to maintain the household. The wife holds the role of primary caretaker. These roles may apply with or without children and they're crucial during divorce proceedings. Some religions, such as the Islamic faith, have specific rules regarding income. The husband's income is meant to support the household and its individual's needs. The wife has no financial obligation towards the household and her income is viewed as the sole and separate property of herself. Part of that financial management also entails financial support post divorce, which has cultural and religious nuances. The negotiation of a dowry is part of that and is often a cultural and religious consideration at the time of marriage and also at the time of divorce. It may serve as a point of contention when that divorce may or may not come. Other things such as gifts, including family heirlooms, serve as a basis of marriage and are a point of discussion at the time of divorce. Generally, the law is clear on the disposition of such financial issues. However, most individuals that live in cultural and religious centric households do not share the same sentiment as the law. Their understanding is of a cultural and religious basis, while the law is viewed as impractical. To many, the position of the law and its contrast nature to their culture serves as a rude awakening during the time of application, which is a divorce. So let's look at the cultural nuances when it comes to parenting. Parental norms may differ based on a family's cultural and religious background. Differences exist in standard concepts of right and wrong, fairness and responsibility. And a misinterpretation of differentiating norms can be devastating in custody disputes. A study held by the Francis McClelland Institute, Children, Youth, and Families, compares western parenting styles to those of Asian cultures and demonstrates how the misinterpretation of these cultural norms can be devastating. It looked at two parts, support and control. Support referred to the expression of emotion such as hugs and praises. While control referred to the setting of clear expectation and providing limitations on the children. American parenting standards are Western or European based and they emphasize on high support and moderate control in child rearing. American parenting standards find this combination to be ideal for a child's overall success. Asian cultures approach parenting differently. There is an emphasis on control where parents tightly monitor the children. And they are portrayed as very strict with low support. This combination represents valued and responsible parenting in Asian cultures. Now, if American parenting standards were viewed from the lens of Asian parents, Asian parents would perceive such standards to hinder the promotion of the child's success. If the reverse were to happen, the American couple would perceived such standards as damaging towards the child's development. Another part of cultural nuances is that there are subgroups existing within many religions. Often religious practices and standards shift based on the subgroup one identifies with. Differences in practices can be challenging in developing a parenting plan. Let's look at specific examples based on specific religions. Denominations of Judaism. If parent A is an Orthodox Jew while parent B is non-denominational, what standards are applied in child rearing? Do the children observe Kosher, adhere to dress code and strictly observe Sabbath? What about if children were of parents of different sects of Sikhism? Will children wear the kes and uncut hair? Or say that they are from different divisions of Christianity? If one parent is a Christian Scientist and the other is not, how will a medical procedure be addressed at the time of need? And so let's look at the issue of financial cultural nuances when it comes to dowry. Dowry is defined as a lump sum payable to either the bride or groom as a condition of marriage. In many religious or cultural backgrounds, when a couple intends to enter a marriage, a dowry for one of the spouses is negotiated. In fact, it is a condition to the validity of the religious ceremony. So what happens if the parties agree to a delayed payment? What if the funds are deposited into a joint account during the marriage? What happens if the obligation is not satisfied at the time of divorce? What if a condition of the marriage is for the dowry to be divided with partial payment upfront and partial in the event of a divorce? How do we rectify what the culture says about dowry versus the law's disposition of the dowry? Another misconstrued and important aspect when it comes to the financial disposition of a household's finances at a time of divorce is income. Income in some cultures is specific to the role that an individual plays in that household. So as stated earlier, in a Muslim household, if the father or the husband has the sole financial responsibility to satisfy the needs of the family, so his income belongs to everyone. While the wife has no financial responsibility to the family, so her income is her sole and separate property. So what happens if a family would like to operate based on this premise? What happens if a family has operated on this premise and end up in a divorce? How do you solve for the difference in culture and legal understanding? One of the more difficult topics to discuss when it comes to divorce is support. The issue of spousal support in child support are difficult. As many individuals, even Western Americans operate from their own belief systems. The belief systems often contradict what is dictated by the law. Adding culture and religious values to these controversial topics may be very challenging. So, for example, if we took a family that is in the Muslim culture, the father in a relationship is solely financially liable for the child or the children until they turn 18 years of age. Spousal support is always payable to the wife, if payable, and is paid for a duration of a few years. Whereas in the Jewish culture, a woman may be compelled to give up her right to support if she's requesting a divorce. And a father has a legal and moral obligation to support his minor children. Typically this extends until a child turns the age of six and then it is encouraged thereafter. These approaches towards financial support differ from how the law approaches the issue of support. And so let's look at what the law says about culture, religion, and the family dynamic. Parenting rights stem from the principles of the First and 14th Amendments. The application of these Amendments has been explained and defined by the courts of the states and the country. First, parental rights were recognized. Specifically, the First Amendment provided for parent's rights to dictate the religious upbringing and rearing of their children. However, this right is not absolute and does not surpass the state's right to protect the child's welfare. The term "Liberty" per the 14th Amendment was defined to include the right to marry, establish a home, and bring up children. The Supreme Court expanded the definition of liberty in relation to parenthood by stating, "Parents have a fundamental liberty to make decisions with respect to the upbringing of their children." However, the Courts were conscious about describing its non-absolute nature and it must be balanced against the public interest. The issue of religious liberty, upbringing of children and its balance against the state's public interest was addressed in a case called State versus Meacham. The Court found that the State's interest in the welfare of its children is a paramount concern. The interest of the State and of the minor child prevail over the religious beliefs of a putative father. In Prince versus Massachusetts, a guardian was taking care of her young niece. They were both practicing Jehovah's Witnesses and she had enlisted her niece to help her pass out pamphlets in the town. The Supreme Court held in this case that the right to practice religion does not include the liberty to expose the community or child to disease, illness, ill health or death. The Court treated the danger to the child's welfare as a public policy concern, which overruled the right of the guardian in this case to impose the practice of religion. Ultimately, religion is not a priority in the decision making over a child's we welfare in the eyes of the law. So let's look at some scenarios. Some of these were built on actual practice issues that I had. Some of these scenarios were built based on issues that I faced in practice. Parent A is a devout Christian who has a history of trying to convince Parent B to convert. Parent B is a Muslim. Parent B has always practiced his faith, or her faith, but in recent years he has increased his devotion to religious practices, which includes reading the Quran daily and observing the five daily prayers. They have three children. Each parent has elected to train and teach the child or the children in their faith respectively. The parties now separated, custody is the largest factor that is being disputed in their divorce. Both parties have cited the religious practices of the other should be grounds to terminate their custodial rights. Based on the law, the courts are careful to infer that any claim of harmful behavior. Okay, so let's look at the law's view in this scenario. The courts are careful to infer that any claims of harmful behavior are a result of an individual's religious beliefs and a distinction will be made between the two. Likewise, a parent may not be ordered to abstain from or directed to rear the children in a particular religion as a basis of custody. Wisconsin versus Yoder is a 1972 Supreme Court case where for the first time, first and only time, the Supreme Court upheld a parental free exercise claim. Such, sorry. Okay. Wisconsin V Yoder is a 1972 Supreme Court case. For the first time and the only time the Supreme Court decision upheld a parental free exercise claim. The court balanced the parental rights against the government's interest so that the children are meeting the duties of citizenship and not burdens on society because of educational shortcomings. The California Family Code addresses the balancing act between a parental right and the state's interest. This balance is referred to "the best interest of children" and is the standard in divorce, legal separation or parentage cases that involve the custody of minor children. Minimizing parental alienation is a priority to ensure that both parents have frequent and continuing contact with the child. This is the basis for the neutral ruling when it comes to differences in religious upbringing of the minor child. Furthermore, the California Family Code provides that a parent may not interfere with a child's religious training or activities unless it can be shown that those activities would be harmful to the child. California law is clear on the role of finance, no hold on. California law is very clear when it comes to financial responsibilities. Per the California Family Code, our state or the state of California is a community property law state where all assets and debts acquired from the date of marriage to the date of separation are divided equally between the parties. Except for inheritance, gifts or evidenced by a written agreement. So let's look at a quick example of how this is applied. Spouse A acquires a bank account during the marriage and deposits all earnings into said account. Said bank account is held in Spouse A's name, solely. Spouse A and B agreed during the marriage that said bank account would belong to Spouse A only. Spouse A and B do not have a written agreement to reflect this arrangement. They decide to divorce. Said bank account belongs to the community estate without a written agreement and therefore is subject to a 50/50 division. Let's look at another example. Spouse B would like to acquire investment properties and does so. He's thinking about taking out a HELOC or a home equity line of credit on a property to renovate it and converting the other into a short term rental. Without a premarital agreement, the investment properties belong to the community estate. This means they are subject to the control and management of both Spouse A and B and both spouses have a fiduciary duty towards the community. So how do we solve for the discrepancies between the law, religion, and culture? Well, some of the solutions include legislative, arbitration, mediation, pre and post-marital agreements. However, we're gonna just dive into mediation. Mediation is a process in which a mutual person or persons facilitate communication between the disputants to assist them in reaching a mutually acceptable agreement. Mediation is a process that is consensual. And when attorneys serve as mediators in a matter they cannot be also advocates in that same matter. Mediators are not permitted to give legal advice, they are permitted to give legal knowledge. And mediation is governed by the rules of confidentiality. The benefits of mediation is that it gives autonomy in making decisions regarding financial issues, child custody and visitation. Discussion of support and the responsibility of support based on culture and religious beliefs could be had in the mediation platform. Setting religious and cultural standards for the upbringing of the children is another way that we could ensure our client's needs are met so that they could have autonomy in the upbringing of their children. Financial responsibilities based on family desired outcomes could be achieved through mediation. Mediation saves our clients time and money and reduces the emotional strain of the process that is naturally entailed in the divorce world. An agreement is reached via a stipulation. Unfortunately, mediation isn't always ideal and it may not work in the following instances: Domestic violence, child abuse, substance abuse, restraining orders, untreated mental illnesses, one or more high conflict personalities or a risk of intentionally omitted assets and debt. What I like to say, that in most cases, if we were to put the level of contention on a scale of one to 10, 10 being the highest level, we can successfully mediate up to a level of nine as long as the couple is willing to cooperate in the process. There are three main styles of mediation, facilitative, evaluative and transformative. Facilitative is a process-oriented style. Here, the mediator structures a process to assist the parties in reaching a settlement. The mediator asks questions, helps to normalize the party's points of view, searches for underlying interests in the party's positions, and assists the parties in analyzing options for settlement. The facilitative mediator does not make recommendations, gives his or her advice or opinion about the potential outcome for the case or predict what the court would do. In the evaluative mediation style, the evaluative mediator assists the parties in reaching resolution by pointing out the weaknesses of their cases and predicting what a judge or a jury would be likely to do in that particular instance. An evaluative mediator might make formal or informal recommendations to the parties as to the outcome of the issue. Evaluative mediators are concerned with the legal rights of the parties rather than the needs and interests and evaluate based on legal concepts of fairness. For example, whether or not spousal support is or is not due in a particular instance. For how long would spousal support be paid if this were treated in the court of law? How custody would be arranged per the terms or the norms held in a court of law are just a few examples of how an evaluative mediator would conduct their mediations. Transformative mediation style is based on the values of empowerment of each of the parties as much as possible, and recognition by each of the parties of the other party's needs, interests, values and points of view. The potential for transformative mediation is that any or all parties or their relationships may be transformed during the mediation. Transformative mediators meet with the parties together since they can give each other recognition. In divorce mediation, we tend to merge or move from one mediation style to the other, especially when there are cultural considerations and religious considerations. At times we need to encourage the clients to enlist the help of say a third party parenting coach in order to reach an agreement. Or we need to give them the knowledge about the law so that they can make informed decisions and they make informed concessions knowing what the basis of the law says. So it's our job as the mediators to understand what our clients' needs are and to be able to move through the different mediation styles to better serve them. Mediation starts from the moment a couple consults with you. And your application of being client oriented so that we could make the divorce process more tailored to do their needs starts from the moment we start the consultation. Cultural and religious considerations are looked at from the moment a consultation commences with the couple. We typically meet with both so neither one feels disadvantaged by the other because they have met with a mediator alone. It also protects our neutrality. It is important to understand the cultural dynamic of the family as a whole and for each party individually because they may not share the same viewpoint when it comes to how they would like their children to be raised, for example. So, a way to bring this up in the consultation is to initiate a friendly inquiry regarding potential cultural or religious values. Do not assume that such topics are or are not of importance. An example would be: "Any cultural or religious values you find important in the upbringing of your children can be discussed in a safe and mutual environment. Would you like to discuss these topics further?" This inquiry informs and assures the clients that this process is about their needs and desires and they can have control which instills trust in the mediator. Encourage the clients to provide you further details about cultural aspects. Their faith, where they go to worship, any milestones that need to be noted, and values regarding food. Like I said, earning the client's trust is key. Be respectfully inquisitive. Ask appropriate questions so you may understand and be sympathetic to their needs. When it comes to the mediation, be prepared by doing your research before the mediation session. Typically, this requires communication with the clients beforehand so that you will be able to learn about the nuances that are particular to their household. And you may need to enlist the help of a third party professional, such as a priest that they trust, to understand these nuances. Take your time to discuss each topic in detail and make sure that both parties are on the same page. Ask clients what is most important to them? What would make them feel heard in regards to each topic you discuss? So let's look at an example. Both parents are Jewish and would like their children to maintain cultural practices at both households. So in this type of instance, provisions regarding maintaining a Kosher household and observing the Sabbath could be addressed. This will this will allow consistency between the households. And it will allow the couple to feel that their children are being raised in a manner that they feel faith even when their children are not with them. Another example is that where parents agree with their values associated with their Catholic faith. They both hold their faith highly and they would like to ensure their children will attend Catholic school and attend a Catholic church. Both parents agree with maintaining a low sugar, organic diet for their children and would like a consistent dinner and bedtime routine. In this type of instance, when a couple voices such concerns, it is important to create broad categories that provide guidelines for both parents in relation to these topics. Keep top of mind financial implications associated with observing said values as well. For example, who will bear the cost of private school? And is it financially feasible to maintain an organic diet? If the parties disagree or need to switch schools, it is good practice to put parameters in the agreement about choosing schools. So create a plan B because what if things change? Another common dispute that I've seen in practice is regarding the topic of child medical treatment. This can be based on religious or non-religious values. For example, blood transfusions, the vaccines, and mental health treatment. Other common disputes include the child's education such as, decisions regarding a child with special needs and determinations at IEP meetings. In both types of instances, it would be good practice to build in a tie-breaker into legal custody agreement. The tie-breaker is a neutral third party that would decide in the event of a dispute. So if parents are not in agreement on any of these topics, they could enlist this person or this individual's help to make the final decision. This person should be an individual that is knowledgeable regarding the subject matter and should have clear contact with both parents. For example, a pediatrician or child psychologist. When it comes to mediation and finances we also start from the moment of consultation. It's important to provide clients with a general overview of the law, how assets and debts are generally divided, how support is defined in your respective state and the parameters in determining support both child and spousal support in your respective state. Remember, you're not giving them legal advice, you are only providing them knowledge. This knowledge is crucial for the success of the mediation because then they understand how it would look like in the event that this was taken up in front of a judge or in a court of law. You could also discuss marital gifts, and heirlooms from the law's perspective. And it allows you to dive deeper into detail with regards to their situation, what their respective desires are, individually and collectively. So, it's important to prepare for your mediation by having the party's financial disclosures prior to that session. Commence the session with a review of the disclosures. Make sure everyone has a clear understanding of their assets and debt and associated values. If the parties are not on the same page and do not have a clear understanding of this, the mediation process will be difficult because they do not understand what they are agreeing to or what they are negotiating on. If the parties have questions about jewelry items, take the time to parse through the topic. Do not just rely on what the law says, understand where they are coming from. Are there cultural or religious attachments to an item? Were the items given as a condition of marriage? Do the parties have beliefs on how they should be divided in contrast to the law? Learn the expectations of the parties from the get go. Does one or both parties want to adhere to the law versus religious and cultural parameters? And if they're in disagreement, how are we gonna merge the gap between the two views? So let's look at an example. In the Hindu faith, the bride is typically gifted a Mangala Sitra and gold bangles. Often these items have been generationally passed down on the groom side of the family. The law provides that these gifts are the bride's sole and separate property. However, culture and sentimental value may dictate otherwise. This is a particular issue that I have faced where an interracial couple were going through a divorce. The husband was Indian and of Hindu religion, the wife was Caucasian and nonconforming. The parties had two daughters. Husband's family had gifted wife bangles and other pieces of jewelry that have been in husband's family for at least three generations for the marriage. Husband addressed this topic in mediation and stressed their sentimental value. He wanted the items returned to his family. Wife was adamant about adhering to the law, which was they were a gift to her and therefore her sole and separate property. We reached a compromise. The parties agreed that wife would be awarded the pieces of jewelry for the benefit of the party's daughters. The tradition will be continued upon their marriage. Wife would address this in her estate plan to ensure that this was taken care of. So they stayed in the family, but under the control of wife until the children were of age. As discussed earlier, in some cultures, spousal support is provided for or is not provided for, or might be provided for a limited duration of time, which is contradictable to the law. This issue arises when the parties want to reconcile the differences between their belief systems and the law. In instances where the parties agree, support can be set in accordance with their beliefs. Typically this is also offset with other responsibilities by the payor. For example, in the state of California we have something called a long duration marriage, which is a marriage of over 10 years. If the parties agree that the payor will pay for two years of spousal support and in addition to that they would purchase a property held in the payee's name. This could be the compromise versus a quote, end quote, "indefinite duration of support." So the outcome and the goal of this is to provide a payee with housing security without the stress of payment. And this is where the parties could stipulate to this in the agreement. Per the law, child support is the right of the child, which means it cannot be waived. However, a couple may agree to an alternative solution. So they might set a set of rules where every month they're gonna be dividing the children's expenses 50/50. Or that one parent would be adhering to paying for certain activities for the children while the other parent will be paying for others. So let's look at an example. A Muslim couple have three children and are dissolving their marriage. They acknowledge the issue of support but want to maintain their religious values, and they want the father to be solely financially responsible for the children. The parties agree that all expenses for the children will be paid for by the father, while setting formal support at zero. An expense account is set up for the mother to use to satisfy all of the children's needs. I haven't discussed marital agreements, but I would like to just give a quick overview and hopefully I'll get to address this in a different lecture. Marital agreements are a great means to honor a couple's cultural and religious beliefs. The topic of dowry could be addressed if the agreement specifies that the dowry is a condition of marriage, not necessarily an enticement of or dissolution. Specifically the characterizations of income could be addressed. Wife's income could be characterized as her sole and separate property, for example. Marital expenses and their responsibilities could be specified through these agreements. And the topic of spousal support could be adjusted to reflect the party's cultural and religious needs. So what are the key points from my presentation? With the changing nature of our population, cultural and religious considerations in divorce need to be carefully construed. Although the law provides for a balance between a parent's liberty to raise his or her child and the state's interference, the law does not provide for the individual cultural or religious needs of a family. This lack of consideration could result in more harm than benefit to the family unit. Prenuptial and postnuptial agreements could solve for financial considerations that are specific to a culture or religion. Mediation solves for the conflict between the law and family's needs when it comes to a dissolution. Mediation permits a couple to stray from the systemized handling of a dissolution and to explore topics that are of a cultural and religious significance to them. Mediation optimizes the best interests of the children and the family as a whole. So in short, I wanted to go over a few common questions that are asked when it comes to taking cultural considerations in the setting of a divorce. So the first question that is commonly asked is, what is the best way to take culture into consideration when there is a divorce? So the best way to do so is when you have a couple in front of you, you need to pay attention to the type of language they use, especially if it's during the consultation. So when they say in our culture or they obviously look like they're practicing such as myself. I wear the scarf and I'm Muslim, so I obviously practice the Muslim faith, the Islamic faith, in that instance, you know, you could start by asking general questions like, are there certain cultural rules or cultural traditions that you would like to be factors in your divorce or that you find important in your family or in your household? And this usually opens up the topic or the platform to discuss certain things with regards to the client's specific cultural needs or religious needs in that instance. And so in doing so, not only does it allow us to see how they currently run their households, but what they would like to also have as a consistent consideration in the divorce process. So, are there certain rights and obligations culturally and religiously that are bestowed on each person? And/or with regards to the children, are there certain traditions or milestones that they want to uphold when it comes to this? Are there certain financial obligations or considerations that need to be also considered? So in general, we like to start the discussion from the moment a couple is considering divorce and through that consultation. The next question dives more into custody situations and the question that is commonly asked is, What are the main areas to consider when taking culture into account in a divorce and custody situations? This is a common question because a lot of people are proactive in how they want to raise their children. Whether or not it's culturally based, there is some sort of proactive moral or cultural value system that they want to raise their kids with. And it could be as simple as leading a household that is vegan or organic all the way to religious and cultural specific considerations or you could say rules that they would like to adhere to. And even traditions and milestones in their cultures like bar mitzvahs, bat mitzvahs, quinceaneras. The children, when they do come of age religiously or culturally, do they need to start teaching them certain things like prayers or attending church. And so these are a list of things that I believe are important to create consistency between the households, especially when there are children of a younger age, so there isn't any confusion. One great example that I had previously mentioned in passing was that I had a family that adhered to the Catholic faith and they were involved in the church and they wanted to make sure that their children continued to have that type of consistency after the divorce. And in doing so we talked about, you know, church attendance, private school attendance, dietary restrictions if there were any, milestones that the children participate in in the church, so on and so forth. So when we are talking about culture and custody situations, we wanna take from the clients information that allows us to see how they would like to operate their day-to-day lives. So whether they want kids to attend church or temple or mosque. Do they want to sign them up for Bible study or Sunday school or Koranic studies? Do they want to have the children attend a private school versus public school? And if they are doing public school, do they want them to attend additional classes or courses such as the Sunday school? Do they want to start teaching them about faith? And that may be observing prayers or fasting or dietary restrictions. Those are things that we need to discuss as the mediators in order to make sure that the clients feel heard and that they're still in control and providing an optimal environment when it comes to raising their children. Other custody situations that we need to look at is when it comes to the responsibility of the parents. In certain cultures, parents play specific roles, whether it's financial or when it comes to the physical labor of child rearing. And so in doing so, some couples have a distinct idea of what they want to adhere to and they're in agreement with that. And as long as they're in agreement with that, it's our role to respect those wishes so that they feel that their children are being raised in an environment that they feel is safe for them. For example, I did mention earlier that in the Islamic faith, you know, the the father is financially responsible for the children up through the age of 18. And so in that type of situation, we would then go through the line items of the financial responsibilities associated with the children. And so we would talk about extracurricular activities, day-to-day needs, housing, medical needs of the children and clothing, any other types of needs, we would create a checklist to go off of for our clients. And the beauty about mediation is we could also ask the clients what they see is also fit. Sometimes you can't think of everything, even if you have your checklist ready to go. They could remind you or they could tell you about something that you might not have considered or might not have thought of. And that's the beauty of mediation because it's a cooperative process that creates a dialogue so that you feel like you're benefiting your clients in the ways they need the most help. And that they also feel that they are being heard and that their game plan or their goal when it comes to their children is also being respected regardless of how their family structure is changing. So those are some of the main areas to consider when we are talking about culture and custody situations. Custody is not only the technical definition of custody when it comes to the law, but it's also about the child rearing responsibilities, the value systems, the moral systems that the couple want to instill into their children. And once again, mediation allows us to honor that as long as the couple is in agreement. Now if couple is not in agreement, it doesn't mean that it's not successful. We could create a middle ground for them so that they could continue the discussion and reach a point where they're both comfortable with. People aren't always going to be happy a hundred percent with the outcome, but that's the beauty of mediation, we negotiate until we reach a point where we could bridge the gap between the two. And ultimately it is voluntary, but the goal is by providing clients with the options that they feel are necessary to them, they're more open to dialogue and they're more open to communicating and reaching a probable outcome between them and the other parent. The third commonly asked question is about the main considerations to understand when there is a dowry involved. Now, the topic of dowry comes up prior to the marriage. When it comes to cultures, it's a condition of the marriage. Whether it's a cultural marriage or a religious marriage, it's typically a condition of that marriage. And the goal is to make the spouse that is receiving the dowry whole in the event of a dissolution of marriage. And so what I like to do is from the moment of the consultation I start with, Are there any general cultural or religious topics that you find important to you? Is one of the broader questions that I ask. And if they say yes, I dive deeper into that. And then as part of that deeper discussion, I ask, Are there any issues of dowry or was dowry part of the conditions of marriage? And how was that handled? So you are extracting the information from your clients. You do not need to guess in that type of situation. And if they answer yes, you dive a little bit deeper into the topic of dowry and you ask, Okay, was it already payable? Was it paid? I mean. Is it due upon divorce? Was it split in half? Was it monetary or was it an actual item? Was it an item of inheritance from generation to generation? And so we start building on that topic of discussion by collecting the information from the clients. And so now we are developing the full picture. Was it due from the wife to the husband or the husband to the wife, if it's in a traditional cultural setting. And was it financial versus an item of jewelry versus an item of religious considerations such as a copy of the Bible or the Quran or the Torah or whatever it may be? Was it some sort of occurrence or an occasion like a pilgrimage or an event that they had agreed to? And then was it satisfied? Right? And if it wasn't satisfied, are they intending to satisfy it as per the divorce? And if they are, based on what conditions? Or based on what timeline? And so in doing so, we now have developed a big picture of how to address the topic of dowry and what each person's expectation is of that topic of dowry, if it's still outstanding. And if they don't have the similar expectations, then we could start thinking about ways to bridge the gap between their expectations when it comes to the dowry. So that is the topic of dowry. You always start with a broader topic of asking if there are any cultural considerations. Then you then you go into is the topic of dowry part of those cultural considerations? And then how does that look like to them in their culture? And just because somebody is of one culture or or one faith system, doesn't mean it looks the same in every couple's situation. You know, there are subgroups in cultural and religious belief systems and sometimes there's a merger of culture and religion. So meaning, religiously there might be a dowry, but the way that it is handled is different based on what country of origin they're from or even what tribe from that country of origin they belong to. So it dwindles down to each person's particular needs, each couple's particular needs. We can't over generalize or over categorized when it comes to this. Which involves a lot of research and that research commences from the point of consultation. Because the clients are gonna give you the basic information necessary to find the deeper, more complex issues or defined the individuals that you could derive the answers to those deeper, more complex issues. So in short, cultural and religious considerations are a growing important factor when it comes to divorce in our country. And mediation is a great way to handle these cultural and religious considerations that are particular to our clients. We are able to customize their experience when it comes to divorce by looking into these factors that are crucial to them and the operation of their lives. If you have any other further questions, please feel free to contact me. My email is [email protected] and I will be more than happy to address any further questions you may have on this topic. Thank you for listening and tuning in to Cultural and Religious Considerations Through Mediation in the Divorce Process.

Presenter(s)

JK
Jeanann Khalife
Partner, Attorney-Mediator
Alternative Divorce Solutions

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