WHAT IS DIVORCE MEDIATION?
Stated simply, divorce mediation is an alternative dispute resolution process whereby a disinterested and neutral third party (called a “mediator”) helps parties in a private and dignified manner work through the various issues of their separation or divorce and reach a mutually agreeable settlement. When parties have the desire to reach decisions that satisfy everyone involved (as opposed to just 1 person), divorce mediation is a sensible and practical approach.
WHAT ARE THE BENEFITS OF DIVORCE MEDIATION?
Divorce mediation has numerous advantages and many quantifiable benefits in comparison to divorce litigation. In virtually all instances, divorce mediation is dramatically less costly than litigation. Although experts, such as accountants and appraisers, are sometimes utilized in divorce mediation, there is only one professional mediator/attorney assisting the parties with the lion’s share of their issues as opposed to two or three separately retained attorneys when a case is litigated in court. As a result, the total cost of mediation is generally 40-60% lower than the cost of litigation. Another benefit of divorce mediation is that it is substantially faster then litigation, where extensive motion practice and numerous court appearances are routine. A further benefit of mediation is its non-binding nature that provides the parties with a non-adversarial forum to communicate in a respectful and productive manner. By virtue of being non-binding, either party is free to terminate mediation at any time and for any reason. Yet another benefit of divorce mediation is that the parties themselves are given a true voice and have direct control over their decisions and the ultimate outcomes achieved. By contrast, in litigation, parties are essentially silenced and rendered passive observers to their own case given the presence of multiple attorneys operating in an adversarial environment. Finally, given the amicable nature of mediation in comparison to its counterpart, it is of no surprise that the parties’ ability to effectively mediate and cooperate with each other frequently translates into a less acrimonious home environment for the entire family, and most significantly, the parties’ children.
ARE THERE SITUATIONS WHERE DIVORCE MEDIATION IS NOT RECOMMENDED?
Although the vast majority of divorce cases litigated could easily have been mediated, there are, however, certain instances where divorces are not suitable for mediation. For instance, where there is a history or fear of domestic violence between the parties or where someone’s capacity is impaired by drug or alcohol abuse/addiction or some other mental disability, mediation would not be recommended. Similarly, where one (or both) of the parties do not wish to be truthful and/or forthcoming in disclosing finances, extensive discovery tools would be necessary and, therefore, the case would not be a good candidate for mediation.
WHAT ARE THE COSTS ASSOCIATED WITH DIVORCE MEDIATION?
Given that the issues germane to each matter are unique, the costs associated with divorce mediation are entirely a function of the time it takes a couple (with the guided assistance of the mediator) to arrive at a mutually acceptable agreement. With that being said, the costs of divorce mediation pale in comparison to the costs associated with divorce litigation. In litigated divorces, each party retains separate counsel and most New York attorneys typically require advance initial retainers somewhere in the range of $5,000 - $10,000. For mediated divorces, the cost of the entire process (as opposed to just initial retainers for each attorney) is generally in the range of $4,500 - $7,500 from start to finish.
WHAT IS ENTAILED IN THE PROCESS OF DIVORCE MEDIATION?
The divorce mediation process is relatively straightforward. The first step is for the parties to schedule an initial consultation where an overview of the entire process is explained and the information/documentation required to effectively mediate will be discussed. This initial meeting is not only an opportunity for the parties to ensure they feel comfortable with the divorce mediation process, but it also ensures that the parties have a good rapport with their mediator. Following the initial meeting, the next step is for the parties to compile and provide the mediator with all of the initial information and documents requested. Once this has been completed, informed mediation sessions to discuss the relevant issues will be scheduled. Each mediation session typically is scheduled for one (1) hour. Although each case is different, most “typical” cases require 3-5 mediation sessions to resolve the parties’ issues. Once all of the parties’ issues have been discussed and resolved, the mediator will prepare a memorandum of the agreements reached for final approval by the parties. Once approved, the mediator will draft a comprehensive settlement or separation agreement for the parties to execute. This agreement not only is a binding contract between the parties, but it also gets filed with the Court (along with various other standardized documents) to dissolve the marriage and obtain a judgment of divorce from the Court.
WHAT ARE THE GROUNDS FOR DIVORCE IN NEW YORK?
In New York State, there are seven grounds for divorce pursuant to the Domestic Relations Law (four fault-based grounds, two separation-based grounds, and one no-fault based ground). The grounds are: (1) Cruel and inhuman treatment (fault based); (2) Abandonment (fault based); (3) Imprisonment (fault based); (4) Adultery (fault based); (5) Living separate and apart pursuant to a judicial separation judgment or decree (separation based); (6) Living separate and apart pursuant to a separation agreement (separation based); and (7) Irretrievable breakdown (no-fault based) (DRL Sec. 170).
WHAT IS NO FAULT DIVORCE?
Prior to legislative amendments that were implemented in 2010 in New York, the only way to obtain a divorce that was classified as “no fault” was for parties to enter into a legally binding separation agreement and wait one year to then convert their separation into a divorce. If a couple did not want to wait the one year to be officially divorced, the only option would be to proceed with a fault-based grounds for divorce. For a variety of reasons, in 2010 New York became the last state to allow no-fault divorce. No-fault means that you do not have to prove that the marriage is coming to an end because of something that is the other spouses fault. All that has to be proved and stated in your divorce papers is that the marriage has been “irretrievably broken” for at least 6 months.
WHAT IS A CONTESTED VERSUS UNCONTESTED DIVORCE?
When someone files for divorce it can be classified as either contested or uncontested. A contested divorce means that one or both of the parties disagree over certain divorce-related issues (i.e., child custody and support, division of marital property or spousal support). A divorce action is “uncontested” when all of the issues are resolved and the parties will allow the divorce to be granted by the Court without protest.
HOW ARE CHILD SUPPORT AND/OR MAINTENANCE DETERMINED IN NEW YORK?
Pursuant to the Child Support Standards Act, New York has specific formulas that are utilized to compute child support. Similarly, where spousal support/maintenance is appropriate, New York also has Maintenance Guidelines. The outcome of these calculations provides parties with a framework for discussing financial obligations relating to child support and/or spousal maintenance. At times, the parties may accept (“opt in”) the calculations. In other instances, however, parties may elect to deviate (“opt out”) from these figures where adjustments are warranted.