In New York, as avant-garde as we think we are regarding many social issues and being the economic hub of the United States, when it comes to divorce, New York is just breaking out of the Stone Age. This past year we added a seventh ground for divorce which is the New York No Fault Statute allowing a couple to file for divorce without alleging fault and accusing the other spouse of one of the previous six grounds for divorce which are:
- Constructive Abandonment
- Inhumane Treatment
- Imprisonment for three years or more
- Judicial decree (rarely used)
For years, mediation has been an alternative to a litigated divorce. In fact, in most states, mediation is court ordered by the judge before the couple can get divorced. However, New York is one of the few states that still doesn’t have court ordered mediation.
There are several forms of dispute resolution. The following is an explanation of some of the most common:.
In mediation, a neutral party speaks to both spouses at the same to discuss the issues and assists them in coming to a resolution. In New York, this is a two step process. First, the couple will need a separation/settlement agreement and then will need to file a divorce action. The separation/settlement agreement addresses the parenting and financial issues for any children of the marriage, the division of assets of the marriage, and whether there are the factors present for maintenance (alimony).
An arbitrator is like a judge. The arbitrator makes a ruling and issues an award based on the believability of the witnesses that are produced, the strength of the documentary evidence, and how the case is presented.
Arbitration is not used in divorce proceeding but more often in the securities industry, intallment contracts and credit card agreement disputes.
In Collaborative Divorce each spouse hires an attorney to represent him or her. The attorneys sign an agreement that they will never litigate the case no matter how it turns out. Despite the fact that it does not go to litigation, this process can be lengthy and expensive; less than litigation but much more expensive than mediation. Most attorneys are not mediators and while they might say that the Collaborative process is a mediation like process, it really is not.
Collaborative Law Group
With a Collaborative Law Group, each of the spouses has an attorney representing them, a psychologist, a coach, and sometimes other professionals such as CPAs. Each side has a separate set of professionals paid for by the couple to help them through the divorce process. The process can be quite lengthy and expensive. While similar to the cost of litigation, the benefit seems to be that you don’t have to appear before a judge, but the expense and the number professionsals involved does not make this a viable alternative for most people.
While not a form of dispute resolution, it is a fact of life that there are some cases that need to be litigated in a court of law.
In divorce proceedings, the couple appears before a judge and depending on how the judge rules, that is how the division of assets will go, child custody will go, how maintenance (alimony) will go, etc. You never know how a judge is going to decide, and that uncertainty is a problem. As good as the judges are and they’ve earned a lot of people’s respect, they have spent little time with the couple and don’t know them or their family, yet they are going to make important decisions about custody and division of assets, which will greatly affect their lives going forward. Judges rule as individuals so rulings can be quite different from judge to judge.
Because of the inconsistency in awards of maintenance, New York State is in the process of standardizing for how alimony is awarded. They are trying to create a set of guidelines so that people similarly situated, and going to courts through out New York State, will get similar alimony awards.
So what process should you choose? I can tell you from my experience as a mediator, my clients include lawyers and judges who are very familiar with how divorces are handled in court. I’ll let you draw your own conclusions, but what does it say when the divorce professionals often choose mediation?