Divorce is sometimes the first experience a person has with the American court system. The thought of fighting over assets and custody of the children before a judge and a courtroom full of witnesses is frightening, but many family law cases never see the inside of a courtroom and are settled through a process called divorce mediation. Each method has its advantages and disadvantages; so first, let’s look at them separately. If you have any questions about the content in this article, do not hesitate to contact us!
How Does Divorce Mediation Work?
When couples agree to divorce mediation, a neutral third party is chosen to meet with both sides to guide the parties to a resolution. Some couples decide on their own that they want to mediate while a judge can also order mediation. In rare cases, the divorcing spouses will want their attorneys with them in the meeting with the mediator, but in most cases, the couples will meet without individual attorneys. In addition to it being more cost effective to meet without the attorneys, if and when an agreement is drawn up, each party may take it to their respective attorneys to review.
Both parties have to agree on who the divorce mediator will be. It is best to retain/hire a mediator that is an attorney who practices matrimonial and family law and is familiar with the then-current laws pertaining to the issues at hand. and one who is certified, having taken at least the 40-hour course for certification.
Once a mediator is chosen, the time and location are selected for the initial session. During the session, both parties have an opportunity to present their side. The mediator listens to both sides but does not make decisions. The mediator is there simply to guide the spouses to a resolution. During the process, the divorcing spouses can determine:
Both parties have to agree on who the divorce mediator will be. It is best to retain/hire a mediator that is an attorney who practices matrimonial and family law and is familiar with the then-current laws pertaining to the issues at hand. and one who is certified, having taken at least the 40-hour course for certification.
Once a mediator is chosen, the time and location are selected for the initial session. During the session, both parties have an opportunity to present their side. The mediator listens to both sides but does not make decisions. The mediator is there simply to guide the spouses to a resolution. During the process, the divorcing spouses can determine:
- The custody arrangements if any children are involved;
- Child support payments or alimony payments, amounts, and duration; and/or
- How all marital assets will be divided.
When the parties agree to a resolution, they must enter into a written and notarized agreement that is then filed with the court along with uncontested divorced papers.
What is Divorce Litigation?
Litigation is more contentious. Both parties retain separate legal counsel; a Summons with Notice or Verified Complaint, etc., is filed and served on the defendant, and then an Answer is served and filed. The parties then go into the discovery process — demands for financial documents are served and responded to, motions may be made to the court for relief in the interim, while the case is going on, a request that the court become involved in the matter may be filed, a Judge is assigned and then appearances are mandated by the court for the parties and their attorneys. Each appearance may cost thousands of dollars and may result in a simple scheduling order, a temporary order regarding custody or support, or an order appointing experts in forensics in accounting or in connection with mental health issues.
During the litigation process, the parties and the attorneys prepare a case to present before a judge. This may be to determine support, who gets what asset and who will have primary or legal custody of any minor children of the marriage. The attorneys may seek evidence against the other spouse that may include:
During the litigation process, the parties and the attorneys prepare a case to present before a judge. This may be to determine support, who gets what asset and who will have primary or legal custody of any minor children of the marriage. The attorneys may seek evidence against the other spouse that may include:
- The mental, physical and/or financial fitness of the other parent
- Allegations of physical and mental abuse
- The ability of the parent to provide a stable home for the children
- Assets and/or income that one spouse may have wanted to hide
- Each attorney may also subpoena witnesses to back up their claims against the other spouse.
Gathering evidence is a lengthy process that can take even longer if one of the spouses demands psychological assessments of their former spouse, requiring a full accounting of assets or other evidence to back up their case. A court date is also dependent on the judge’s calendar and in some smaller New York counties, it can take months/years.
After a trail, the judge will take some time to make his or her decision. The judge’s decision is final unless one of the parties files an appeal.
After a trail, the judge will take some time to make his or her decision. The judge’s decision is final unless one of the parties files an appeal.
Why Choose Divorce Mediation over Litigation?
For the most part, divorce mediation is the better choice. The parties have to be willing to at the very least negotiate through a 3rd neutral and independent person and they have to be willing to compromise, but it is less stressful and less costly. If each party, or even if one of the parties, is unwilling to negotiate or compromise and is set on having everything their way, that may make divorce mediation impossible. If one spouse refuses to settle without a court hearing, or the couple has a large amount of assets and cannot agree on their distribution, divorce litigation and a court battle is the only way to go. If the parties want to spend less money on attorneys and have their case handled quicker, then mediation is the right choice. In short, divorce mediation gives you these benefits:
- Divorce mediation is confidential
- Divorce mediation is less costly than litigation. (An attorney will spend more hours on litigation that will be billed to the client. Additional court costs are also involved in litigation.)
- Divorce mediation takes less time than litigation. (The divorcing spouses can set the time and may resolve all of their issues in one meeting.)
- The divorce mediation process is less contentious and less stressful than a court battle.
If you are going through a divorce, or thinking that you may need to, soon, you don’t have to do it alone. Contact Weisman Law Group and discuss your best options. Weisman Law Group has extensive experience with both divorce mediation and divorce litigation and we highly recommend that you read more about what we have to offer. If you think you are ready to learn more by speaking with an attorney, do not hesitate to contact us.
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