Mediating Your Divorce from the Start
Mediation is an alternative to litigating a divorce. Anyone can take this route, as long as clear that it serves the parties’ respective interests and the best interests of the children in the family. In most cases it probably will. Mediation, should not only be seen as a last resort in the midst of litigation, but rather explored as an imperative start to the divorce process.
Mediation is generally a short-term, structured, task-oriented, and hands-on process. In mediation, the disputing parties work with a neutral third party, the mediator, to resolve their disputes.
A couple can start a divorce mediation process, from before, or from the time the actual decision is made to uncouple, rather than after starting the litigation process. However it is always important to consult with a family law attorney at the outset, especially if there are trust issues pertaining to safety and potential property alienation.
When pursuing a process it is best to fully research and understand what it entails, and to be assured that your chosen mediator is adept at helping you to navigate any or all of the following:
Children of the marriage:
- Custody, visitation and child support issues
- Parenting plans dealing with co-parenting issues – includes medical, schooling, religion, extra curricular, behavior, discipline, etc.
- Transition plans and issues
- When and how to tell the children
- Age appropriate custody and calendar plans
- Dealing with college age children and their needs
- Children who are disabled
- Guardianship and considerations in case parents become deceased
Issues of spousal support:
- Who receives spousal support
- Is the marriage a long term or short term marriage
- How your circumstances impact alimony in the short term and the long term
- When to terminate the Court’s jurisdiction to award spousal support
Community property and separate property:
- Full disclosure and assessment of all assets and debts
- Pension Plans requiring division – qualified Domestic relation Orders (QDRO)
- Ownership and division of real estate
- Business interests and ownership
- High or low debt and who is responsible
If your financial picture is complex or involves significant community or separate assets, debts, and/or high income on the part of either party, it is important to ensure that the mediator is capable of assisting you to navigate toward a fair agreement. A good mediator will ensure that both parties are equally protected with the requisite legal advice from consulting or representing separate attorneys and other professionals, as the case may require.
While mediation may not work in every instance, it is likely to work in most cases, and often serves to settle aspects of cases. Certainly at some point and is absolutely worth exploring. Even if you are experiencing an antagonistic divorce, where you think mediation may not be possible - one never knows that a mediator may be talented and creative enough to help hone the conflict into a more productive process.
In all instances, one must first be aware of one’s rights and duties. To ensure mistakes are not made, it is important to get separate legal advice from an attorney. In some cases, especially where the level of trust is low, or one spouse has more control over the family finances than the other, it may be important to file for divorce and serve the summons and petition immediately. A mediator or family law attorney should steer you in the right direction.
In California, for example, the filing and service of a divorce summons triggers automatic restraints which serves to prevent the alienation of property, including other protections, such as preventing a spouse from cancelling insurances. A competent mediator will help ensure that if the necessary protections are yet to be secured, at least the parties are aware of such and that they enter into an immediate understanding that they will act accordingly – that they will not make any significant decisions affecting community property or children, without the written consent of the other.
Mediation should help a couple circumvent the negative attributes of the adversarial system. Fueled by the motto, “divorce should not be the defining trauma of your life or your child’s life,” I believe couples, and especially those who are parents, must do all possible to minimize the inevitable conflict brought on by divorce.