What is Divorce Mediation?

A couple choosing to Mediate their separation and/or divorce are opting for a highly cost & time efficient process whereby

the husband and wife, with the help of a mediator, can address all the issues surrounding their legal separation and/or divorce. This includes matters such as the parenting plan for their children, the distribution of their assets & debts, and whether or not one of them is going to pay the other any amount of alimony (or “spousal maintenance”, as it is also referred to in New York).

Is Collaborative Law the Same as Mediation?

Collaborative Law is definitely not Mediation. In fact, the Collaborative Law process is relatively new and conducted by attorneys who sign an agreement not to take the case to litigation, if the Collaborative process breaks down.

Though often marketed as similar to mediation, a Collaborative Divorce is typically much more expensive, as the couple still has to pay two lawyers, who have been trained as adversaries in an adversarial system, and are likely to behave as such. Which notoriously slows down the process, and in turn, can dramatically increase the cost of a Legal Separation or Divorce for the couple.

What are the Benefits of Mediation?

Fortunately, Mediation is typically a dramatically lower cost option than either Litigation or a Collaborative Divorce.

  • The Mediation process is almost always a much faster way to obtain a Separation Agreement and/or Divorce than the the other options mentioned.
  • In fact, Mediation sets the stage and offers a workable model for how the husband and wife will agree to decisions going forward after their Separation or Divorce, especially if they have children.

I often wonder: How can litigation work, when one spouse has to make the other look like a terrible person in court, who must then be punished monetarily, and have their access to their children limited?

Mediation was designed for and is about problem solving, fostering cooperation, and finding creative solutions. Mediation works so well, in fact, that the divorcing couple are far more likely to have a better/workable relationship going forward after their separation or divorce.

How Does the Cost of Mediation Compare With the Cost of Litigation?

In nearly every separation or divorce case, mediation is a fraction of the cost of Litigation.

As an example, statistically in Westchester County, a Litigated divorce costs a couple $10,000 to $15,000 each for a retainer and between $50,000 and $200,000 for the total cost. High asset clients pay a great deal more.

Whereas, in mine & my clients experience, a Mediated separation and/or divorce usually only costs between $3,500 to $7,000 in comparison, for about 90% of the couples I see. That means, on average, Mediation costs only 20 to 25% of the cost of Litigation!

What Does a Mediated Divorce Include?

Typically, one to three Mediation sessions with the couple.

  • The preparation of the couple’s Legal Separation Agreement by an attorney.
  • A review session with the couple explaining the provisions of their Separation Agreement.
  • And, the actual Divorce Action filing and the court fees.

How Long Does Mediation Take?

You might be surprised to learn that my Mediation Clients typically complete their agreements and are on their way in usually only 1 to 2 months (not years!).

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How Long Does Litigation Take?

Unfortunately, in New York, it is typical for a litigated divorce to take between 2 to 5 years. Many cases can take longer.

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What is the Difference Between Being Legally Separated and Being Divorced?

In creating a Legal Separation Agreement, you have decided all of the pertinent issues required for a divorce, before actually filing for a divorce.

One advantage to starting with a Legal Separation is that, generally, you can continue to cover your soon to be ex-spouse with health insurance during the period of time you are both living under a Separation Agreement. However, keep in mind that you cannot remarry without a Divorce Decree.

Does a Separation Agreement have a Time Limit? Does It Ever Expire?

Fortunately – no, a Legal Separation Agreement has no expiration in New York.

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Will We have to Go to Court?

Most divorcing couples are pleasantly surprised to find out that – no, they will not have to go to court or appear in front of a judge when they choose to Mediate their divorce.

Once the Separation Agreement is signed, all that remains to be done is the actual filing of the documents.

What Happens after a Couple Reaches an Agreement?

As your Mediator, I incorporate the terms of the agreement into a Memorandum of Understanding (MOU), which becomes the basis for the Legal Separation Agreement, which will be drafted by an attorney.

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Does that Mean We have to Get a Lawyer to Draft the Agreement?

Not on your own, no.

There are several attorneys that I have long-standing relationships with, that I use to draft your agreement, who, in fact, specialize in the drafting of Legal Separation Agreements.

After we File the Separation Agreement, How Long Does it Take to Get the Divorce Decree from the Courts?

The time it takes the courts in New York to process a Divorce Decree varies by county. In Putnam County, it could be as little as 6 weeks but rarely longer than 2 months.

In Westchester County, Divorce Decrees can take up to 6 months or more to process.

Do We Need to Bring any Documents to the First Mediation Session?

If it is an informational/consultation session, no, you would not need to bring documentation.

If it is a mediation session, I will email you a list of documents you should bring with you so we don’t waste any time, and are able to get down to business right away. All agreements are based on the full disclosure of both of your assets and debts, to each other.

Do We have to Come to Mediation with a Completed Plan of How We Want to Divide Everything?

Mediation is probably the best place to decide on how to divide your assets and/or debt.

It’s of course OK to discuss what is important to you in dividing the assets of the marriage prior to Mediation. But before determining a plan of asset division, it is important that you understand the difference between what is marital property and what is separate property. Hearing an explanation from your Mediator of marital interest in a retirement plan, pensions, or business(s) may cause you to change your mind about any pre-mediation plan you may have worked out. So it is best to start with a clean slate in the Mediation session.

If I Paid for the Down Payment When We Bought Our House with Money Earned Before the Marriage, Do I Get that Back?

You can, and some couples do.

Other couples choose to include all the equity in the home as a joint asset and, therefore, do not. In mediation, it’s your choice.

What About Inheritances? Separate or Marital Property?

Generally, inheritances are considered separate property.

During your mediation, I will explain how a court might view it if you have mixed it with other marital funds.

I Have a Pension. My Spouse Didn’t Work for It. Do I Have to Give Up a Share, and if so, How Much?

The portion of the pension earned during the marriage is considered to be marital property to be divided.

In mediation, you can choose to trade off the interest in the pension for the equity in the home, or perhaps the retirement plan, or even some other asset. Or, you can choose to waive the marital interest in the pension entirely. Keep in mind, however, that pre-tax retirement dollars, and equity dollars, are not the same.

Only One of Us has Worked. Do We Still Have to Divide the Assets Equally??

In a Litigated divorce, the non-working spouse might get more than half the assets because of spousal maintenance (alimony).

However, in Mediation, we try to divide assets in a way that is fair to both spouses.

We Want to Sell the House. Can We Go to Mediation Now or Do We Have to Sell the House First?

I would encourage you to go into Mediation before the house is sold.

This is because your Separation Agreement will detail which expenses will be paid by both spouses until the house is sold and which debts (fix-up costs, repairs, etc.) will be paid before the equity is divided. It is usually far better to have everything in writing as soon as possible.

Are Mediators Licensed?

Presently, in New York, there is no licensing for mediators.

But there are educational courses and emerging standards and even accreditation available for Mediators (see below).

So How Do We Choose a Good Mediator?

One way to evaluate a potential mediator is to see if they are accredited with the New York State Council on Divorce Mediation (NYSCDM.org) and/or the Family and Divorce Mediation Council of Greater New York (FDMCGNY.org).

Certainly it’s also a good idea to ask friends who have used mediation about their experience, and whom they worked with. Also, you can ask a potential Mediator how many couples they have successfully Mediated.

In my case I’ve been extensively trained, hold both of the accreditation’s listed above, and have successfully mediated with over a thousand couples.

Some Lawyers and Therapists Mediate Part Time and Have Multifaceted Practices. Do You Mediate or Arbitrate Other Types of Cases?

I specialize in, and focus solely on, Mediating couples getting separated or divorced.

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Is it a Legal Requirement that Lawyers Must Review the Separation Agreement Before we Sign It?

No, there is no legal requirement that a lawyer review your Separation Agreement. If it is a “plain Jane” agreement where you are using formulas for everything and not deviating from any of the statutes, it is likely unnecessary that an attorney need review the agreement.

In this example, I conduct an agreement review session with you, before you sign the Separation Agreement, so that there are no misunderstandings and everyone is clear about the terms.

If there are businesses involved and/or complicated assets, then I would urge a couple to consult with accountants, and get the businesses valued by a business valuation expert. I can provide you a list of accountants and business valuation experts that I trust.