What is divorce mediation ?
It’s a two-part process: negotiating a separation agreement, and navigating the process for a divorce.
I think I can explain it best this way… so please click on the icon to have a look:
What do WE do in mediation ?
Mediation is a series of meetings during which the two of you are helped to negotiate all the terms of a formal separation agreement and divorce: how you’re going to handle the parenting logistics; decision-making, and support questions for your children; how you’ll deal with all your assets and liabilities; whether one of you needs financial support from the other; and, whether and how to proceed with a formal divorce.
What do YOU do in mediation, then ?
What I do is: help the two of you stay focused in your discussions; make sure that you’re aware of all the topics you’ll need to consider to move forward; and, point each of you towards the sources of information on each issue that you might need to make intelligent choices. I can also share with you solutions that other couples have used for any given issue, or ideas that occur to me, with the understanding that you don’t have to adopt any of those. I can also look at any solutions that you’ve already sketched out, to see if there might be concerns based on my experience with other divorcing couples. Finally, I can also — if you’d both find it helpful — share with you the range of outcomes you might expect in court on a given issue, just to put a frame around your thinking.
What specifically will we cover ?
We’ll talk about the specifics for the children’s schedule with each of you, how you’ll make decisions for them while living in two separate households, and how you’ll meet their financial needs. We’ll also discuss: how you’re going to handle assets and liabilities; whether both of you have enough to live on; health insurance, tax filings, life insurance, tax exemptions… and all the other financial issues you’ll need to address. (If you’d like a specific outline of the questions that will be considered, please take a look at the tab up top labeled “Decisions Checklist”.)
Will the outcome be fair ?
You’ll decide that; if you don’t believe it’s fair, you simply won’t accept those terms. Keep in mind that mediators unlike judges don’t make decisions for couples. I’ll be responsible for the questions, but you two will remain in charge of the answers. Remember that I’m not an arbitrator, or a private judge; I won’t listen to each of you for 60 seconds, and then lean back and declare what you must do, or announce what I think is fair. You’ve been making financial (and parenting) decisions together for all the time you’ve been married, and I won’t assume you’ve suddenly become incompetent to continue to do so simply because your marriage may not be going forward. I’ll be in charge of the process, but you’ll retain the ability to decide if the substance of the discussions are fair for you.
How long is each session ?
I generally work in sessions of about an hour and a half, although I ask you to block out two hours in your schedules — as I do — so that we won’t have to stop abruptly if we’re in the middle of a discussion. Some people seem to work best in longer sessions, and others start to flag after an hour. But most couples, I’ve discovered over the years, reach a point of diminishing returns after about an hour and a half, so that’s what we’ll aim for.
How often do we meet ?
Usually, I suggest scheduling meetings about every two or three weeks. That’s the time period most couples seem to require to gather the information they need, confer with the people they’re consulting with, have their own discussions, and process the ideas and issues that have come up in the mediation. But scheduling is entirely a function of your needs — you can choose to meet more, or less, frequently, as you both decide.
When will we be finished ?
It varies widely, but assuming that the two of you can deal with particular topics in direct conversations between mediation meetings, on average it takes about two or three working sessions to reach agreement on all the points, or three to four if you have children. It will then take a few weeks to draft, review and sign the formal papers. Start to finish, most couples have the Separation Agreement signed and in effect within two to three months from when they start — although the receipt of the actual decree of divorce will take many, many more months, due to congestion in the New York courts.
Who sits at the table ?
Most of the discussions will take place with everyone talking together. There may be times, though, that I’d want to talk with each of you separately. Many couples also speak directly with each other between appointments, which is something we can discuss at our first session, to see if it makes sense for the two of you to try.
Is the mediation process confidential ? Is it binding ?
Everything you say in mediation will be treated as confidential, and nothing you’d say, or even agree to in a session, would be binding. If you do come to terms on all the points, however, it will be memorialized in a formal, legal contract that’s identical to the one that would have been drafted if you’d negotiated the settlement through attorneys. Once you sign that document, the agreement is a binding and enforceable contract, and will serve as the terms of any Divorce Judgment.
How much will all this cost ?
The cost will really be a function of two things: how complicated your situation is, and to what extent the two of you can talk constructively on your own outside the sessions. Mediation sessions are charged at an hourly rate for the time spent working with you; that same rate applies for time expended in drafting any agreement that you reach, and preparing the papers for your divorce.
Couples can expect the entire process — the mediation sessions and preparation of the papers for an Agreement and the Divorce — to cost somewhere between $ 3,500 and $ 5,000, depending on the presence or absence of children in the discussions, the complexity of the family finances, and your ability to resolve some of the issues on your own between mediation sessions.
Can I use a lawyer ? Do I need to have a lawyer ?
About half the couples I’ve worked with over the years consult with attorneys, and the other half don’t. I don’t insist you have counsel, but suggest you each consult with a lawyer during the process if you’d feel it would make you more comfortable, to find out what your obligations and expectations are. While I am an attorney I’m here to help the two of you work towards an agreement togehter, but don’t represent either (or both) of you, and can’t really help each of you with your personal negotiation strategy, or advise you as to what you ultimately should or shouldn’t do. For that, it may help to have someone who’s unashamedly your consultant. The purpose of mediation is not to eliminate lawyers, but to change their role to one of advisers, rather than acting as surrogates.
Will I have to go to Court ?
No. If the two of you can work out all the agreements in mediation, you’ll sign papers that will be submitted to obtain a divorce judgment, but you’ll never have to see a Judge, or testify at a trial or hearing.
Why do you talk about a “Separation Agreement” since we want a Divorce ?
The end product of the work in mediation is a formal separation agreement, which in New York is the name for the contract that determines all your financial and parenting rights and responsibilities. The two of you can fix all the decisions about your money and your family in that agreement, but the one thing you can’t do privately is to change your marital status from married to single — in other words, to get divorced. (Just as you needed a license from some state official to get married, you need a piece of paper from a judge to become unmarried.) By signing an agreement, you avoid giving discretion to a judge to make any decisions regarding your future, but you still must go through the formal filing for a divorce to become single again, if that’s what you want.
In New York, you have two options:
1) You can sign a separation agreement and live under it for a short while or for years – or the rest of your life — as legally separated but not divorced; nothing will happen automatically to change that status. This approach may make sense if you feel no pressing need to divorce, aren’t planning on immediately remarrying, or have religious objections to a divorce, or as a practical matter want to postpone losing out on spousal health insurance coverage or the benefits of joint tax filings.
2) The second option is to sign divorce papers at the same time that you sign your Separation Agreement. For this to happen, you both have to agree that you want to divorce sooner rather than later; one of you can then, for instance, state that the marriage has been irretrievably broken down for at least six months, or articulate one of New York’s “fault” grounds, and the second person can simply sign an affidavit that doesn’t admit that any allegations are true, but simply states that they’re not going to interpose an answer.
What should we bring to the first session ?
If you can, it’s helpful to prepare a very informal statement of your assets and liabilities (with approximate rather than specific values) for the first session, as if you were sketching out the draft of a net worth statement to apply for a mortgage. If you can’t, don’t be concerned, but if you have the time it helps me understand at a glance what your financial situation is, without my having to ask you questions about assets that you might or might not have. Also, if you have copies of last year’s tax returns, that can be of help in getting me up to speed quickly.
Have an Infrequently Asked Question ?
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