Archive for 2009

Discovery: Depositions & Subpoenas

Thursday, December 3rd, 2009

Discovery is a legal method for you and your lawyer to obtain information about your case from your spouse or other sources. Discovery mechanisms generally fall into four categories: releases, interrogatories, depositions, and subpoenas.

 

Depositions

 

Depositions are sworn testimony taken under oath in an informal setting, such as the lawyer’s office, in the presence of a court stenographer. The stenographer records the testimony word for word and prints a transcript of it. This transcript can be used subsequently at trial in the event that the witness, presumably your spouse in this case, gives a different answer at the trial, or for some reason becomes unavailable to testify at the trial. Like interrogatories, you can basically ask any question that you want which pertains to the marriage. That leaves the field wide open.

 

Depositions are wonderful tools for preparing cases and for trial. Imagine being able to ask your spouse in advance what arguments he or she intends to use, witnesses he or she intends to call, and what he or she is going to say about you on the stand. Depositions settle more cases than almost any other vehicle available to you and your attorney.

 

The drawback to depositions is that they are expensive and time consuming. You must  decide upon which questions to ask your spouse, and your lawyer will also make a list of questions to ask your spouse. You and your lawyer will need to discuss these questions in advance and make sure you have all the bases covered; your lawyer is then present at the deposition. This adds up to a great deal of legal time.

 

You also must pay for the court reporter, which is frequently quite expensive. Ask your lawyer in advance to approximate how much the court reporter’s fees will be for a deposition so that you may budget accordingly.

 

Subpoenas

 

A subpoena is a legal document which may be issued by the court or your lawyer requesting that certain witnesses or documents be made available on a certain date. Subpoenas generally must be served by a sheriff in advance of  the court hearing, deposition or other proceeding at which the witness’ presence is being requested.

Your lawyer will need a certain amount of time prior to the date of your next hearing, deposition, or other proceeding to issue subpoenas and have them delivered to the necessary parties, so you will want to let your lawyer know in plenty of time what information you need and from whom.

 

The most common use for a subpoena is for wage and pension records. If you believe your spouse has lied (or even has made an innocent mistake) about his or her wages, get a copy of the wage documents from the employer. The second most common use for a subpoena is to obtain bank records. If an account is solely in your spouse’s name, and is not provided as part of a voluntary exchange of documents, you can obtain the missing statements with a subpoena. You can also use a subpoena to double check records received from your spouse which look suspicious; for example, a dishonest but clever spouse with a container of white-out can misrepresent balances or withdrawals. For articles, plans and checklists see http://www.peace-talks.com/divorceinformation.php. Some terrific books are listed at http://www.peace-talks.com/books.php.

 

 

Excerpted from Your Divorce Advisor: A Lawyer and a Psychologist Guide You Through the Legal and Emotional Landscape of Divorce (Simon & Schuster/Fireside 2001). For more information: http://www.yourdivorceadvisor.com/.

 

For more information contact Peace Talks www.peace-talks.com 

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Discovery: Releases & Interrogatories

Tuesday, December 1st, 2009

Discovery is a legal method for you and your lawyer to obtain information about your case from your spouse or other sources. Discovery mechanisms generally fall into four categories: releases, interrogatories, depositions, and subpoenas.

 

Releases

 

In some cases, neither you nor your spouse will be in possession of strategic documents. For example, you may have misplaced tax returns, lost bank statements, or thrown away your pay stubs and pension account statements. If it’s simply a question of copying documents, you can sign a release to have the document copies sent to you or your attorney. For tax returns, the IRS has a standard form release which allows them to send copies of tax returns to you for a fee. Most banks will also send copies of records which have been misplaced. Banks retain records for a long period of time, but for a fee (ask in advance, the fee is not always small) they will provide your records.

 

Interrogatories

 

Interrogatories are written questions to which your spouse must provide answers in writing, and under oath. They are often accompanied by “a request for documents”, which is a list of requests for copies of documents to be provided along with the interrogatory responses. Interrogatories may be of any length and there are relatively few rules limiting the content of the questions. Generally, the legal standard is that you may ask any question that would lead to potentially admissible information. Admissible information is information that the court would  use in the event of a trial.

 

Because a divorce case pertains to your entire life during the time that you are married, and in some states it also concerns financial transactions prior to your marriage, interrogatories can be very open-ended. Questions can be asked concerning almost any topic, ranging from finances to children’s report cards to sexual relations. If you are looking over an interrogatory package that your lawyer has sent you for response, and you see questions that don’t look appropriate, consult your lawyer immediately, but be forewarned that almost every subject is fair game. For articles, plans and checklists, see http://www.peace-talks.com/divorceinformation.php. Some terrific books are listed at http://www.peace-talks.com/books.php.

 

 

Excerpted from Your Divorce Advisor: A Lawyer and a Psychologist Guide You Through the Legal and Emotional Landscape of Divorce (Simon & Schuster/Fireside 2001). For more information: http://www.yourdivorceadvisor.com/.

 

For more information contact Peace Talks www.peace-talks.com 

(C) 2008  Peace Talks Mediation Services, Inc.

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You Can Never Be Too Prepared

Friday, November 27th, 2009

There are many financial and emotional benefits of working out your divorce amicably. Sometimes it is impossible to resolve things without court intervention, despite your best intentions. If the breakdown in the negotiation process is a result of your spouse’s refusal to cooperate, and if you have tried everything you can think of to make the situation more amiable to no avail, then you need to shift into a protective mode. In the event your case proceeds to trial, you will need as much information as you can get. If you are able to resolve your case before you get to trial, it will be because you were prepared. Divorce never feels fair, but you need to optimize your chances of a fair result, irrespective of the path which brought you to this end on your journey.

 

Putting the Evidence Together

 

No matter how amicable your divorce, it’s still important to assemble financial documents as soon, and as thoroughly, as possible. The pre-trial waiting period is a final chance to collect the information you will require to complete your divorce. Although it’s tempting to procrastinate, in order to maximize your chances of settling your case,  you’ll need to have all of the necessary information assembled. Once you know what information you can assemble on your own, you and your lawyer will have a better idea of what documents you’ll need to get from other sources. In the event that your divorce turns adversarial, you’ll also be able to start thinking about evidence which comes from information that you can’t find in documents, such as testimony, photographs, and physical evidence.

 

Some of the necessary information may need to come from your spouse. His or her year-to-date earnings, pension statements, or individual bank accounts are some examples of documents that your spouse will have to provide, since you won’t typically have access to them.

 

The simplest way for you and your lawyer to get these documents is to make a list of what you need and to ask for them. If you and your spouse (and any attorneys involved) are cooperative, the information exchange occurs smoothly and quickly. This is the simplest, cheapest way to accomplish necessary financial disclosures. When you cannot obtain the information that you need, you will need to utilize legal procedures known as “discovery”. For articles, plans and checklists, see http://www.peace-talks.com/divorceinformation.php. Some terrific books are listed at http://www.peace-talks.com/books.php.

 

 

Excerpted from Your Divorce Advisor: A Lawyer and a Psychologist Guide You Through the Legal and Emotional Landscape of Divorce (Simon & Schuster/Fireside 2001). For more information: http://www.yourdivorceadvisor.com/.

 

For more information contact Peace Talks www.peace-talks.com 

(C) 2008  Peace Talks Mediation Services, Inc.

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Personal Assessment: Are You Ready to Negotiate?

Tuesday, November 24th, 2009

As you move into your divorce negotiations, consider the following personal assessment.

 

  1. Have I set realistic, sensible goals?  Have I accounted for our income, assets and debts and thought about which division best suits my needs?  Have I ranked each asset in terms of its importance to me?  If I keep my own priorities in mind, it will be easier avoid becoming trapped in arguments and self-pity when negotiations become difficult.
  2. Have I tried to consider what is a fair resolution of this divorce from my spouse’s perspective?  If what I expect from the divorce and what I’m prepared to offer to my spouse are out of balance, then I cannot expect my spouse to work with me to achieve a peaceful settlement. If I can understand my spouse’s motivations as well as my own, we can work together for resolution?
  3. Have I considered the emotional and financial costs to me if we cannot settle our case?  If I cannot have everything that I want from the settlement, is what is being offered sufficient for my needs?  If I am able to weigh all of the costs and benefits of accepting or rejecting a settlement which represents a compromise of my goals, I will make the best decision under the circumstances.
  4. Have I learned to negotiate fairly?  Am I prepared to give up things which mean more to my spouse than to me without expecting anything in return?  If I am committed to negotiating in good faith and am willing to compromise on less important points, I will foster an atmosphere in which we have the best chance of reaching an agreement.
  5. Have I conducted my new life with decorum and sensitivity? Have I let my anxiety propel me into behaving thoughtlessly or impetuously? I have much to think about during this time, and much planning to do. I must not be derailed by my emotional needs, not just yet.

 

If you need more information, be sure to visit the Peace Talks resource center at http://www.peace-talks.com/resources.php. For general divorce information, see http://www.peace-talks.com/divorceinformation.php.

 

Excerpted from Your Divorce Advisor: A Lawyer and a Psychologist Guide You Through the Legal and Emotional Landscape of Divorce (Simon & Schuster/Fireside 2001). For more information: http://www.yourdivorceadvisor.com/.

 

For more information contact Peace Talks www.peace-talks.com 

(C) 2008  Peace Talks Mediation Services, Inc.

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Handling Money at the End of Your Marriage

Sunday, November 22nd, 2009

There are five financial issues that can take down a marriage – reduced circumstances, financial mistakes, caring for parents, caring for kids, and uncertainty – according to Ron Leiber, “Your Money” columnist of the New York Times.  These are truly issues that affect every marriage at some point, and I thought that they warranted a little more coverage.

Reduced Circumstances: Although some people may be disappointed over the reduction in lifestyle thanks to a layoff or change of interest rate, consider how dividing up a household doesn’t reduce costs.  Getting divorced will now mean that, however you and your spouse are dividing assets and responsibilities, you’re supporting two households on the same income that used to support one.  Even if you have a peaceful and inexpensive divorce, it definitely does not improve reduced resources.

It might be that problem is that you were unhappy and unfulfilled in the marriage, but you stayed because of the money.  Sometimes it’s easier to Spackle over problems with money than to address them.  You might be thinking “I want to leave this marriage” and then balked at the tumult of taking the kids out of private school, foregoing that trip to Hawaii each year, and downsizing your car.  If reduced circumstances have already stripped those things away, maybe you’ve just cleared the path to divorce.

In that case, more financial security created the problem by being a motivator for staying in an unhappy marriage, and losing those ties helped reveal the real issues.

Your Mistakes:  The mistake is really that you didn’t have the difficult conversations early. I can’t tell you the number of people who come in who have railed through their home equity line of credit because they didn’t have the heart to tell their spouse to stop shopping at Fred Segal.  But the discussion doesn’t revolve around the details.  It needs to be a dialogue that you are both engaged in.  “I want to share with you the home equity line of credit statement (or charge cards, etc).  I am concerned that we are over spending.  What do you think we should do?”  Have the conversation as a series of “I” statements (as opposed to “you should”) and a question to open up the discussion.

The other big fight we see is “We agreed you would go back to work after the kids went to school and then you never did.”

To turn the conversation around, the approach is similar to the discussion above:  “I am concerned that you’re not looking for a job when we agreed you’d go back to work when the kids were in school full time. What’s holding you back?”  If it’s that the spouse has changed his/her mind, then involve him or her in the budgeting process.  The loss of a second income will have an impact on the family.  How can each partner take responsibility for that?

Too many people just let it ride, and four years later end up in our office feeling like they’ve been let down by the spouse who didn’t go back to work or curb spending. They realized too late that the real problem was that both people weren’t involved in making an active decision.

Your Children:  While they may have started out as a surprise, their turning 18 and applying to college is not.  Have the conversations about college early and often.  And not just with your spouse, with the semi-adult children, too.  A drastic change in circumstances is something an 18 year old is able to understand.  But “we blew our wad on your siblings and didn’t plan for you” is sure to land him on a therapist’s couch.

Read more tips on dealing with finances in your relationship here: http://estestherapy.com/relationshiptips/2008/04/30/financial-stressors-keeping-your-relationship-strong-in-a-recession/, and to find out more about sharing college costs with your ex, go here: http://www.kiplinger.com/columns/drt/archive/2004/dt040826.html.

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What if My Lawyer Says to Get Tough?

Thursday, November 19th, 2009

You need to determine why your lawyer feels you should be handling your case in a way which feels wrong to you. Ask if he or she feels you are being too passive, willing to accept much less than a court would deem appropriate? Are you being bullied by an abusive spouse into accepting an inappropriate custody and visitation arrangement?  The lawyer should be able to outline for you the parameters of the likely outcomes for your case, and together you can match your goals to what the law deems fair. By the same token, after you’ve discussed the likely outcomes with your lawyer, if you decide for your own reasons to accept a low settlement, or to capitulate to a pushy spouse, then it’s your lawyer’s job to follow your wishes.

 

The most important thing to do for yourself during divorce is to maintain control over your case. You can do that by implementing the planning strategies in this book, and by determining your priorities. Your attorney works for you. He or she has expertise, but that is useful to the extent that it is applied toward making you feel more comfortable about the direction your divorce is taking and helping you to achieve the goals you’ve set for your case — not the other way around. Many clients seem afraid of their attorneys. Others are so afraid they will make a fatal error in negotiation, that they don’t dare re-direct a lawyer that seems to be heading them in a direction they did not wish to go.

If you have doubts about the direction of your divorce is taking, talk over your concerns with your lawyer immediately. If you are not satisfied with the conversation, or if you are afraid to have it, then you need to switch lawyers before more time goes by.

 

Bonnie wanted to participate in a free alternative dispute resolution program being offered to divorcing spouses with young children. Both Bonnie and her husband Paul expressed their interest, and we made plans to enroll them in the program. Bonnie called back to say her attorney advised her not to participate, playing on her fears that it would result in a settlement less beneficial to her than one he could negotiate. Bonnie could not explain why her attorney felt this way, she just kept whispering that she had to go along with her attorney. Eventually, her divorce became a prolonged legal battle that seemed to emanate from the lawyer’s agenda.

 

The more you know, the less likely you are to be intimidated by your lawyer. Read up on divorce on the Peace Talks website at http://www.peace-talks.com/divorceinformation.php. Or choose a good book, at http://www.peace-talks.com/books.php.

 

 

Excerpted from Your Divorce Advisor: A Lawyer and a Psychologist Guide You Through the Legal and Emotional Landscape of Divorce (Simon & Schuster/Fireside 2001). For more information: http://www.yourdivorceadvisor.com/.

 

For more information contact Peace Talks www.peace-talks.com 

(C) 2008  Peace Talks Mediation Services, Inc


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Examples of Rebound Invovlement

Monday, November 16th, 2009

Below is an example of Ralph and Linda in rebound relationships. Take their story into consideration. The fact scenarios may be different from yours and still may give you something to consider.

Ralph and his wife had been married for eighteen years. Linda had kept a superbly clean house, had helped Ralph with the bookkeeping of his building business, and had kept both of them on the straight and narrow. Ralph had become disenchanted with Linda and had filed for divorce. Upon meeting a woman who was to him exiting, fun, more relaxed and flexible than his wife had ever been, Ralph began to date this woman during the time of the separation. Initially elated with this new relationship, he very quickly found that his new love had very little regard for money matters, seemed to be more interested in going out for dinner than having a meal at home, and housekeeping was the last thing on her mind. When it came time for the final divorce, Ralph began to withdraw from this relationship. He began to think more clearly about the qualities that he would like in a partner at this stage of his life. Shortly after the divorce he met another woman with whom he was more compatible, who seemed to have a better balance in her view of the necessities of keeping a home and business and a relationship working well. Taking this new relationship slower than his first post-divorce relationship, Ralph remarried twenty-two months after divorce.

 

Carol entered into a brief series of relationships during the course of the mandatory waiting period. In these relationships, she found herself reacting to the partner in ways that evoked dislike for herself. She complained that she would react to these new men in the way that she had reacted to her husband during the course of her marriage. Carol, so fearful of losing these relationships, would complain endlessly about how difficult her life was at this time:  looking after the kids alone, having to be solely responsible for the household, and the lack of being understood. When not complaining, Carol would endlessly try to please each of her new dates. She didn’t know how to ask directly for her needs to be met in these relationships. She tried to take on the interests and the hobbies of each boyfriend, regardless of whether or not she enjoyed these pursuits. The seesaw of complaining and compliance gave off the effect of Carol being an emotional child, causing Carol to doubt herself as to whether or not she would ever be able to have a relationship that was fulfilling and meaningful.

 

The bottom line: postpone serious involvement with someone new until you are certain that you are past both the legal and emotional divorce recovery time!

For a good video on rebound relationships, see http://www.expertvillage.com/video/151790_can-rebound-relationship-feel-like.htm. A good article is listed at  http://www.forbeginners.info/dating/rebound-relationships.htm.

 

 

Excerpted from Your Divorce Advisor: A Lawyer and a Psychologist Guide You Through the Legal and Emotional Landscape of Divorce (Simon & Schuster/Fireside 2001). For more information: http://www.yourdivorceadvisor.com/.

 

For more information contact Peace Talks www.peace-talks.com 

(C) 2008  Peace Talks Mediation Services, Inc.

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Conversations about Money: Akward vs. Attorney

Thursday, November 12th, 2009

This week there was an excellent column from the New York Times’ Your Money writer Ron Lieber outlining five issues that can create major financial distress for couples.  They are almost all inevitable and unavoidable – Reduced Circumstances, Mistakes, Parents, Children, and Uncertainty – yet Lieber explains, and I agree, they can seem so vague and distant a couple can easily avoid discussing them until reality hits.  As one expert in the piece says, “You can either disengage and get divorced, or reengage.”  Spouses can be disengaged until they end up in a contentious, expensive divorce.  Even if you are divorcing, you and your spouse are never too far gone to reengage and create a mutually beneficial financial solution.

But how does a couple who is finding these problems after years or decades supposed to reengage after the problem’s created, and fingers are being pointed?  Leiber offers a few remedies to specific examples of tough financial decisions for parents or kids who need support, but the specific solution is almost beside the point.  To prepare for the really tough times, or to prevent them from tearing you and your spouse further apart, you both need to know how to have awkward conversations.

First, identify why you feel like this will be a difficult conversation – your own shame, your spouse’s response?  Think about what your spouse’s response might be and if you can do anything to improve the situation, but be honest about what’s going on.  Sugarcoating conversation about how you maxed out your credit (“Remember that amazing place I took you for your birthday?”) or putting it off until she tries to use her card are only going to make the conversation harder.  As soon as you need to have the conversation, have it!  Lay it all out on the table, listen to your spouse’s response, and then be ready to problem solve.

As an example, let’s say that you have two kids who are twenty one and seventeen.  Your older daughter is attending a private school which you and your husband financed with a combination of cash, student loans, and a scholarship she earned.  Your younger son is applying for schools now, but scholarship money is much harder to come by and since you and your spouse have separated you don’t have the resources to help him out.  You believe your children should get equal support, your spouse believes that if your son can’t find enough scholarships or grants he will have to go to a less expensive school.

You could:
1. Wait until he is accepted to his first pick and submits his paperwork.  When the bill for the deposit comes, have a huge blow up over how it will be paid for, causing your son to feel to blame for your conflict.

2. Set up a time to talk to your spouse about this before your son begins to apply for schools.  Start with, “I’m afraid we might not be able to help with Steve’s tuition the way we did with Angie’s.  I understand that you feel he needs to find the rest of his tuition money himself, and I want to help him more.  Given the situation we’re in now, can we discuss what kind of contributions we both think we can make?”

Starting an awkward conversation can dramatically reduce your anxiety and start a pattern of having direct, productive communication.  Again, it’s never too late to start.  Read the previous Your Money column about how to talk about money before marriage here, http://www.nytimes.com/2009/10/24/your-money/24money.html, before you enter into your next relationship.  You can also learn more about how to handle your personal finances before a divorce here: http://www.divorce360.com/divorce-articles/finance/general/divorce-planning-5-financial-tips.aspx?artid=782.

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Beware the Rebound Relationship

Wednesday, November 11th, 2009

This is a time when you should be preparing for the successful end of your divorce and adjustment to your life afterwards. Your focus at this time should be on adjusting to this new status, and helping your children with the multiple transitions inherent in divorce. This is your time to recover from emotional hurt and pain that you have sustained to this point. It may be a time when you need to experience some depression, and to grieve. It is a time when you need to focus on your future, to begin to think about how you are going to be financially responsible. These adaptations take energy. It is energy best put into concluding your divorce rather than establishing your new life, which will be waiting for you when you are finished.

 

After years of lacking love and consideration from your partner, the experience of rejection, neglect and abandonment that you may have felt in your relationship can lead you into a “rebound” relationship. You are at highest risk of choosing someone like your spouse in ways that have not been good for you. Often people who date at this period of time enter into a dating relationship with the emotional mind set of the time when they were first dating and courting their spouse. People report feeling giddy and excited as they had been prior to the marriage. Remember that you are years older now, and your requirements in a relationship are very different.

 

Give yourself time to know who is emerging from the ended marriage. You have a better chance then of entering into a happy and healthy relationship that can develop into a deeper and more mature one over time. Transitional relationships have very shaky foundations, yet you are probably thrilled with the attention and interest that your new love will show to you. Enjoy a relationship that begins in friendship and shows care for what you need at this time. Then you wont let yourself get caught up in the excitement of the moment at the expense of your emotional well-being later on. Be patient; there will be plenty of  time to start new relationships after your divorce is final. For a good article about rebound relationships after divorce, see http://divorcesupport.about.com/od/romanceafterdivorce/p/reboundrelation.htm. More on rebound relationships is discussed at http://www.2knowmyself.com/What_is_a_rebound_relationship/rebound_relationships_advice_feelings

 

 

 

Excerpted from Your Divorce Advisor: A Lawyer and a Psychologist Guide You Through the Legal and Emotional Landscape of Divorce (Simon & Schuster/Fireside 2001). For more information: http://www.yourdivorceadvisor.com/.

 

For more information contact Peace Talks www.peace-talks.com 

(C) 2008  Peace Talks Mediation Services, Inc.

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New Relationships During Divorce

Monday, November 9th, 2009

Socializing with persons of the opposite sex can do wonders to improve your self-image. Do not stay out overnight, especially if you have children. If you have children, make sure that they have a proper baby-sitter, and that you do not go out too often. If you have someone stay over, do so when the children are out of the house. Regardless of your values, it is best to refrain from sexual relations until the divorce is completed. Remember that you are under your spouse’s and the court’s microscope regarding parenting arrangements, and your spouse could at any time initiate a custody proceeding if he or she perceives that you are enjoying yourself too much, and spending too little time with the children.

 

As rules of thumb, if you are considering entering a new relationship while in the midst of a divorce, here are some factors that will influence the importance that relationship may play in the divorce:

 

How long have you been separated? How long have you known the person you are now dating? Is your spouse involved with someone too; is he or she likely to give you a harder time as a result of the new relationship? Do you have children and what ages are they? Children who are about five or six years of age and those entering adolescence are particularly vulnerable to feeling competitive with the new partner. In all instances, proceed cautiously and with discretion.

 

From an emotional perspective, dating seriously while you are in the throes of a legal divorce is a complex business. There are several reasons why you must be vigilant about your new relationships during this time. First, this is a time of high tension and emotional vulnerability. You and your spouse are undergoing a time of stress and anxiety wherein emotions are irrational, and sometimes simply crazy. Partners are given to jealousy that sometimes blows into full rages. Even if your partner is dating, he or she is still likely to be emotionally connected to you. Your partner can begin to make the legal process lengthy, difficult, or may wish to try to control you in some other form via the interim financial arrangements. For some additional considerations, see  http://ezinearticles.com/?Dating-After-Divorce:-Things-To-Think-About-Regarding-Dating-After-Divorce&id=32847. Other good tips are included at http://www.breakupadviceonline.com/dating_divorce.html.

 

 

 

Excerpted from Your Divorce Advisor: A Lawyer and a Psychologist Guide You Through the Legal and Emotional Landscape of Divorce (Simon & Schuster/Fireside 2001). For more information: http://www.yourdivorceadvisor.com/.

 

For more information contact Peace Talks www.peace-talks.com 

(C) 2008  Peace Talks Mediation Services, Inc.

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