Divorce Mediation is an alternative way to resolve disputes. Traditionally, opposing parties in a lawsuit retain two lawyers to initiate the resolution process. In a divorce scenario the opposing parties would be a husband and wife. After many months or even years and tens of thousands of dollars later, the dispute may be finalized, but with great economic and emotional strife. In a divorce, this can be extremely devastating to a family and in particular, the children.
The good news is there is an alternative choice to the traditional adversarial divorce process. And that is to choose a divorce mediator. Although I am a lawyer, as a divorce mediator I do not represent either party individually. Rather, I act as a facilitator for the parties and we work together over a period of two or three months to formulate a final settlement agreement. We create the agreement without two lawyers and ultimately the agreement is filed in the court using what we refer to as a review attorney. In a sense, this is the complete opposite of the traditional method and the end result is the same.
At the free consultation I explain to couples you can divide the entire divorce process into three areas: Child Custody-Visitation/Division of Assets and Liabilities/Support.
In this article I would like to demonstrate examples how decisions related to the children and the family and marital residence were resolved. The following are actual fact scenarios from two separate cases I mediated and finalized. (The parties’ names have been changed):
Child Custody and Visitation: Dan and Sue decided to separate and begin the divorce process. They had three children aged 7, 11 and 14. Their primary concern and goal was not to up-root the children from their home, school, friends and neighborhood. The central question was how this would be possible when Dan and Sue became divorced. Traditionally and in most cases, the family residence would be sold if the couple could not come up with an alternative plan. The sale would take place, Dan and Sue would find separate homes and the children would take turns visiting each parent on designated days and times. Keep in mind, when agreements cannot be reached, the courts and judges will direct the outcome. The beauty of mediation is self-determination. The husband and wife decide what is best for their family, not a third party.
In mediation, we can formulate creative and open minded solutions. One of these solutions, related to custody and visitation is known as “nesting”. Rather than the children visiting Dan and Sue, the marital residence would not be sold and the children would stay in the house. Dan and Sue would each find an alternate residence for the nights they are not at the house and Dan and Sue would come and go on alternative nights, as agreed. In many cases, couples may stay with his or her respective parents or friends when not at the family residence. I have even worked on cases where the couple leased a small apartment they could share (although not on same nights) and take turns going back and forth to the children. Then when the youngest child graduates high school, the family residence would be sold and the proceeds split. Often when I describe “nesting” to couples, their first reaction is “can we do that?” My response is always the same: you can do anything you like. It is your life and your divorce. Courts and judges step in when you can’t agree or when a situation is not in “the best interests of the child”.
Division of assets and liabilities: as is the case with custody-visitation, the marital or family residence is typically the central issue of discussion and concern. In this fact scenario, Dan and Sue decided Sue would keep the marital residence and Dan would find his own residence; perhaps a townhouse or a small house close to the marital residence. The children would stay with Dan on alternate weekends and they would come to Dan’s home one or two nights per week for dinner and possibly to sleep over.
Most of the couple’s equity is in the marital residence. Dan and Sue agreed to use an independent appraiser and the value of the home was determined to be $380,000. There is one mortgage on the property with a balance for $120,000. The agreement the couple settled on, in mediation, is that Sue will refinance the home, the deed will be in Sue’s name only and Sue will obtain a $285,000 mortgage. Dan will receive $130,000 which is half the equitable value, when the new mortgage closing takes place.
In summary, these decisions were reached in one, or two, two-hour mediation sessions. The total cost per two hour session is approximately $350.00. In a traditional two attorney/non-mediation setting, the two decisions outlined above could take several months and cost several thousands of dollars, at best.
If you considering a divorce or separation please consider mediation first. Contact us today!