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Mediation is a private and dignified way to negotiate the terms of a legally enforceable Agreement with the help of an impartial third party who works equally for both of you.
Mediation is a cooperative approach and differs from other approaches for dealing with changes in the family. Rather than hiring an attorney to speak on your behalf or enlisting a court to make decisions about your life, in mediation you are given the opportunity to talk and think through the options in a non-threatening, creative and professional (though comfortable) environment. When both you and your spouse or partner are interested in finding solutions that satisfy everyone concerned, mediation is a sensible approach. Though bad feelings do not necessarily go away in mediation, you will be working on practical solutions that can help decrease conflicts now and in the future.
By discussing issues together with your spouse or partner and the mediator, you avoid the stress and cost associated with litigation. Your mediator will guide you through the issues to be resolved and a wide range of options for addressing your circumstances. You, your spouse or partner, and the mediator will discuss the pros and cons of all the options, and only after fully understanding your choices will you make decisions that will be included in your Agreement.
People who mediate their Separation Agreement do not need to be in agreement about anything, or even to have discussed anything prior to attending a mediation session. People who are in complete disagreement can and do benefit from mediation. Indeed, mediation is used to help people to bridge differences. Individuals can have very different perceptions and ideas about what is fair. Bringing those ideas and perceptions into the light and brainstorming alternative options is part of the job of the mediator.
If people genuinely wish to be separated they will consider alternative ideas, alternatives to exactly what they want in order to reach resolution - this is a necessary part of any negotiation.
The mediation process helps you organize your thoughts and maintain control over decision making. You move at your own pace so that you have energy to give your children, work and other areas of life. To obtain a fair Agreement or to create a positive plan for change, you will work to keep the channels of communication open, accept differences in perception, and be mindful of the value of maintaining positive relationships for your own sake and that of your children.
Once the Opting Out/Separation Agreement has been signed, either person may commence an action for divorce. This involves commencing a lawsuit in which one person (the plaintiff) sues the other (the defendant) for divorce. Effective October 12, 2010, New York State allows an action for divorce to be commenced on any of the following grounds:
Source: New York Domestic Relations Law Section 170.
The last ground (under #7 above) is informally considered the “no-fault” grounds for divorce in New York.
When you file for divorce it can either be contested or uncontested. A contested divorce means that one person is disagreeing with some aspect of the divorce. It may be an issue about your parenting plan (custody and visitation), support (child support or spousal maintenance), equitable distribution (division of assets and debts), or the grounds for divorce.
An action for divorce is considered uncontested when all the issues are resolved including which grounds for divorce will be used. When an action for divorce is uncontested, the defendant will allow the divorce to be granted by the Court without objection. You have the option to either hire an attorney to prepare the divorce papers that must be submitted to the judge in order to obtain a divorce, or you may prepare the divorce papers yourselves. New York State provides the public with divorce forms that contain all the forms that need to be completed and filed with the court along with a copy of your signed and executed Opting Out/Separation Agreement.
To read about the financial benefits please click here. Beyond the financial benefits, there are a great deal of other benefits to using mediation for your divorce. A divorce does not have to be an adversarial process.
With the mediation process you do not have attorneys interpreting what you want and speaking for you; in mediation you use your own voice. In this way, there is less room for miscommunication and a greater chance for you and your spouse or partner to separate amicably because you worked together. Parties are able to talk face to face in a relaxed environment and not treat one another as opponents.
If the case goes to court, you will have a judge make all the decisions that you could have made yourselves in mediation including how to divide your assets and debts, how much you will pay or receive in financial support and what your parenting schedule will look like. Decisions made by a judge could be to your benefit, or they could result in outcomes that you and your attorney never predicted.
Long delays between mediation sessions (months and years) are not unusual. People are adjusting to their new circumstances (emotionally and financially) and do not have any pressing need to finalize their Agreement. When one or both wishes to finalize the Agreement, or an issue arises in the interim, parties return to mediation to proceed.
This is an acceptable way to use mediation. The individual issues that could bring people into mediation are changes in income that require a change in how bills are paid, a child changing residence, or a child leaving for college. When returning to mediation, the financial information (income and account balances for example) is updated depending upon the circumstances.
It is not unusual in my experience for couples to be physically separated for a number of months or years before they begin the steps of reaching a legal Separation Agreement. Usually these couples who no longer live together have managed to find a way to share the care and supervision of their children, and pay for ongoing expenses in both residences.
For any variety of reasons, eventually it is important to one or both of them to be legally separated, and divorced. These circumstances of extended physical separation can generate unique issues concerning the date of identification and valuation of marital assets and debts. As in all mediations about the equitable distribution of marital assets and debts, the couple will be discussing and deciding upon the dates for identifying and valuing assets and debts that will be distributed between them.
One goal of this section was to catch your eye and to let you know there is no normal divorce. How you and your spouse or partner work through the phases of separation and divorce is unique to you and your situation.
There are some people who decide to stay separated for an extended period before divorcing. In some of those cases, a Living Apart Agreement is mediated. Living Apart Agreements can set forth your decisions about parental rights and responsibilities, the payment of expenses in both households, and other important issues during the interim between the physical separation and the legal separation and divorce.
Others want to mediate the terms of their Separation Agreement as quickly as possible (often before they physically separate) and move toward divorce immediately thereafter. In those cases, one of the most productive things to do is collect the documents required for the mediation process.
Some mediations are completed in a matter of 2-3 (or less) sessions over a month or two, others may attend 6-8 (or more) mediation sessions over a number of years. However most are completed within 6 months to a year of beginning the process. You and your spouse or partner will greatly influence the speed at which the mediation is completed.
In this website you will find common themes about the experience of separation and divorce, a few words of wisdom and a section on mental preparation. Not everything listed here will apply to you. However, there are enough commonalities in the experiences of people going through separation and divorce that the information on this website might be helpful for you to read. This is an incredibly stressful time for people and it is good to know you are not alone and your experiences are completely normal.
Lawyers participate in the mediation process by providing you with legal advice and by reviewing the proposed Agreement along with other documents that are written in accordance with the decisions you reach in mediation. Seeing an attorney before attending mediation is perfectly appropriate. In fact many attorneys like to see their client before the mediation begins so that the client is aware of their rights and obligations during the negotiations in mediation. Consulting with your attorney during the mediation is also appropriate. Using your attorney, accountant, financial advisor, therapist or other helping people before, during and after the mediation, as you see fit, is your right and can be extremely useful in helping you reach a resolution.
A mediator can give you legal information and ideas about what has worked for others but do not give legal advice in favor of one party and against the other. Independent legal counsel for each of you is important to be sure you fully understand all your rights and obligations. Your attorney who studies the Agreement from your individual point of view, while keeping in mind your objectives for being in mediation, is best suited to advise you.
Your home is probably one of the largest assets in your marital estate. Retaining the home can also be one of the most important goals for a couple who plan to separate and divorce. As you approach the decision to separate and divorce, you may not be clear about whether or not the house will need to be sold. You or your spouse or partner may wish to keep the house but are unsure whether it will be affordable. During the mediation, we will discuss each of your wishes about retaining the house, selling the house, or co-owning the house, and the related financial issues surrounding each option.
The financial issues include making a determination about the fair market value of the house, the mortgage and/or home equity line of credit balances, separate property credits, and current/future selling costs. These issues will help you determine the equity in the marital residence that is subject to division between you.
You will be evaluating whether or not one person can “buy-out” the other person’s interest immediately and the amount of the “buy-out”. The buy-out may be accomplished by borrowing additional money against the equity in the house, by using other assets (including retirement assets), or by paying a monthly distributive award.
Another important financial consideration is the carrying charges (mortgage, real estate taxes, home owner’s insurance and utilities) for the house. If you agree that one person will retain the house and buy-out the other’s interest, will that person be able to afford to pay the carrying charges. This is considered within the context of your incomes, expenses, child support payments, spousal maintenance payments, and the distribution of other marital assets and debts.
A Family Law Software file will be prepared for clients that includes both spouses' budgets, incomes and the relevant tax information provided by the clients to the mediator. The cash flow reports and the financial and tax information derived from the use of this program will help clients make informed decisions about child support, spousal maintenance (when necessary), dependency exemptions and related financial issues. The program can help create a workable financial future.
The Equitable Distribution Chart that is prepared for our clients will include the information that is provided by the clients to the mediator about assets and debts. The Equitable Distribution Chart is used during the mediation to facilitate full financial disclosure and informed decision-making about the distribution of assets and debts between spouses. Please click below to see a full list of documents needed for the Equitable Distributuion Chart.
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