DIVORCE MEDIATION; DISSOLUTION OF A MARRIAGE OR DOMESTIC PARTNERSHIP

Understanding the Divorce or Dissolution Process

Divorce is a process rather than an event. While dissolution of marriage and dissolution of domestic partnerships are legal terms, the legal divorce or dissolution is only a small part of the process, which generally unfolds in stages. In Stage 1, for any number of reasons one or both spouses begin to question whether the relationship is viable and sufficiently supportive of their life goals. In Stage 2, he or she begins to actively consider the possibility of divorce or dissolution. In Stage 3, one or both partners become convinced that the marriage or partnership, for all practical purposes, is over, though they may not tell their partner or take legal action for months or even years, particularly if children are involved. In Stage 4, partners separate and begin to re-negotiate their boundaries with each other as they take stock of the new realities in their lives. FOR MORE INFORMATION ABOUT THE EMOTIONAL ASPECTS OF DIVORCE, CLICK HERE. Stage 5 is the legal process, further described below, which may overlap in time with stage 4. In Stage 6, partners begin to settle in to their new lives. When children are involved, they also test how cooperative and flexible they are able to be and how well their legal agreements regarding parenting and ongoing financial obligations work for them under the new circumstances. Most people feel some relief when the legal process is completed regardless of whether they initially wanted to dissolve the marriage or partnership, and many couples who were not able to be truly intimate as partners do extremely well as co-parents, raising healthy, well-adjusted children. For couples who remain bonded in what psychologists call “negative intimacies,” conflict may continue or even increase at this stage.

Stage 5, The Legal Process and Options. Divorce or dissolution of marriage or domestic partnership requires a court order, a “judgment and decree” signed by a judge in order to be effective and enforceable in the United States. State law requires the order to address a number of substantive issues. The big three categories are: (1) Property Division; (2) Parenting (if applicable) and (3) Financial support (child support and expense sharing and spousal maintenance, if applicable). There are a number of additional issues as well, some of which are optional. There are many paths to the court order.

The Traditional Adversarial. In the traditional adversarial process, one spouse hires a lawyer or uses court forms to draw up the opening “pleadings” and “serves” the other spouse to get the legal case started. They then either negotiate on their own or through their lawyers, and file motions to resolve issues in court that they are unable to resolve through negotiation. Depending upon local rules, they may be required to appear in court periodically to report upon their progress or be referred to alternative dispute resolution (ADR) forums. Even for those using the traditional adversarial process, only about 2% ultimately go to trial. Negotiations in the traditional process are often done through lawyer communications, typically focusing on legal analysis and likely outcomes in the event that the issues were decided by a court. Generally, this is the most expensive process option, although court forms are available for those who are able to represent themselves.

Mediation

Divorce mediation sessions generally take place in two-hour blocks of time separated by days or weeks, depending upon the homework needed to prepare for the next session as well as the schedules of all involved. When children are involved, it generally takes three to five sessions to complete the process. If participants disagree on fundamental issues or if the valuation and division of their assets is complex (for example, if one or both owns a significant business), more mediation sessions may be required. As a mediator, Rebecca Picard emails the participants a summary of agreements made to date, along with homework items after every mediation session. Assuming agreements are reached on all issues, the final summary provides the information lawyers or parties need to draft and file the court pleadings.

The Role of Lawyers in Mediation. The role of lawyers during the mediation process varies. Parties are encouraged to get legal advice from lawyers. Some people consult lawyers at the beginning and/or end of the process; some consult them in between some or all sessions; some have their lawyers attend and actively participate in the mediation sessions. Once agreements are reached on all issues, one party’s lawyer drafts the packet of documents to be filed with the court based upon the mediator’s final summary or memorandum. The other party’s lawyer reviews those documents on behalf of that party. Because the role of the lawyers is very focused, the legal fees are generally substantially less than what they would be in the traditional process.

The role of other experts. A number of other divorce professionals can be helpful to the process, depending upon the needs of the parties. These include:

Coaches, who may work with the partners individually or together to assist them in maintaining a resourceful state of mind during the process, making sense out of their emotions, reducing reactivity, developing and maintaining constructive communication, supporting their parenting and co-parenting goals and keeping them focused on their “big picture” goals for a healthy post-separation life.

Financial Neutrals, who assist participants in understanding the financial and tax implications of various options, analyzing budgets and sometimes providing future income projections.

Appraisers and Actuaries, who provide expert opinions about the value of various assets.

Neutral Child Specialists, who meet with children whose parents are going through a family law proceeding and provide feedback to the parents about the children’s needs and how they can adjust their parenting or communication with the children to best respond to those needs. Neutral child specialists can assist parents in developing their parenting plan if they initially disagree about their children’s needs.

Benefits of Mediation. At a time when you are likely to feel a distinct loss of control, mediation hands back the control, because both parties have veto power and can determine the schedule and standards used for decision-making. Many divorcing couples in mediation honor agreements made during the marriage or domestic partnership whether or not they are consistent with the likely outcomes if they were to go to court. Mediation can be tailor-made for your needs both in terms of the process and the outcomes. Mediation is a human process in which all perspectives can be expressed. It offers an opportunity to be supported in articulating your viewpoint and understanding your spouse’s. Mediators assist participants to avoid “positional bargaining” in favor of identifying the needs, priorities and emotions behind their demands and proposals. In the absence of a mediator, these needs and priorities are often overlooked. More than 80% of partners dissolving their legal relationship through mediation reach agreement on all issues; of those who do not, many reach agreement through their attorneys shortly after mediation.

Mediation also focuses parents on the needs of their children and helps them distinguish between their needs and the needs of their children. Research has shown that even five hours of mediation can produce a dramatic increase in the amount of contact a nonresidential parent has with the children twelve years after a divorce as compared with the contact of a nonresidential parent who resolved parenting issues through a court hearing. See section below on Impact of Divorce on Children.

Costs of Mediation. Mediation services are charged on an hourly basis for both parties, so it depends upon the degree of conflict and the complexity of your issues. Mediation through MEDIATED SOLUTIONS, LLC, is often under $3,000 for both spouses, and couples without children may be able to resolve all issues for half of that amount.

Mediation is not for Everyone. Mediation requires participants to actively participate in the process, speak up about their needs and perspectives, and take responsibility for getting any advice they may need to make informed decisions. Should the level of conflict or intensity in a mediation interfere with anyone’s personal safety or ability to focus on the issues being considered, the process may be suspended unless and until an effective safety plan can be implemented. Participating in a free orientation with your spouse or partner offers an opportunity to get some feedback about concerns you may have and to decide if this process is likely to work for you.

Other Processes for Reaching a Negotiated. Many divorcing couples are able to work out their own agreements; these are sometimes referred to as “kitchen table divorces.” Every county in California has a Family Law Facilitator and forms available for spouses and partners who represent themselves. With the exception of short-term marriages and domestic partnerships without children or real property, dissolutions involve legal consequences with powerful effects on the lives of all concerned. If you have children or significant property or need financial support, even if you represent yourself and fill out your own forms, having a lawyer look them over on your behalf is a good idea. While parenting provisions and agreements regarding financial support can be modified, most courts give a lot of weight to existing orders. With rare exceptions, property division cannot be modified. If you represent yourself, make sure you understand what you are signing.

Another alternative to the traditional process is Collaborative Law or Collaborative Practice. The process is governed by a Collaborative Participation Agreement stating that, while each of the lawyers represents one of the partners, neither lawyer will go to court or use court processes on behalf of the clients other than filing the final agreements and court order. Sometimes Collaborative Teams are used. Collaborative Teams include lawyers, one or two coaches, a neutral financial specialist and a neutral child specialist (assuming minor children are involved). The goal of collaborative law is similar to that of mediation — that is, to focus on the needs of the children and the family structure as well as the individual spouses through a significant life transition, to keep the decision-making in the hands of the participants and to honor their unique history, sense of fairness and priorities as they develop agreements. Mediators may also be used to facilitate the collaborative process, and when unrepresented spouses use mediation, a mediator may recommend that they consult with collaborative lawyers. Note that some family law attorneys practice exclusively collaborative law, while others use the collaborative process with some clients and the traditional process for others.

Some lawyers in the traditional process commit to using collaborative principles without the requirement that the lawyers withdraw in the event that clients want them to use traditional court processes. Sometimes this is called “Cooperative Law.”