Advantages of Mediation
Control Over Outcome:
Mediation allows couples to have greater control over-the divorce process and the decisions made. By actively participating in negotiation of their divorce issues, the parties can control the outcome of their divorce on terms that are satisfactory to both, rather than a judge making the decisions for them.
Faster Resolution:
Generally, mediation is much faster than seeking court intervention to resolve conflicts. The parties have more control over the process and can schedule sessions at their convenience as opposed to the delays associated with court appearances.
Cost-Effective:
Generally, mediation is less expensive than going to court. The process involves fewer or no court appearances, reduced need for motion practice and other court proceedings and less attorney involvement in negotiations. As a result, the overall fees paid to an attorney will generally be less than the cost of pursuing a contested divorce.
Preservation of Relationships:
Mediation focuses on resolving conflicts amicably and fostering communication between the parties. Couples that use mediation as a tool to resolve the issues involved in their matrimonial case are more likely to maintain a respectful relationship, which is especially beneficial when children are involved.
Disadvantages of Mediation
Imbalance of Power:
In situations where one party exerts power over the other, in any manner, mediation is not an ideal option. In these cases, often one party will dominate the negotiation process or intimidate the other party, which will inhibit effective communication and compromise, and will lead the more passive party to agree to terms based upon fear or to get relief from the negotiation. Similarly, if one party is more skilled at negotiation or has greater knowledge of the relevant legal issues, there is a possibility for an uneven outcome. This can result in one party feeling disadvantaged or coerced into accepting terms that may not be in his or her best interests.
Inability to Resolve Complex Legal Issues:
Some divorce cases involve complex financial, property or child custody issues that require detailed legal or expert analysis. Often, mediation is not ideal for couples when there are intricate matters that require expertise in a particular area.
Lack of Enforcement:
Agreements or MOUs reached through mediation are typically not legally binding until they are converted into a legally binding agreement that is signed by both parties. This means that you may go through the entire mediation process, pay the mediator for his or her time and preparation of the MOU, and then have one party decide that they do not agree with the terms. If this happens, you are at the same point that you were prior to starting the mediation process, and you have needlessly spent your time and money.
You should consult a matrimonial and family law attorney to determine if mediation is appropriate for you.
Collaborative Divorce
Collaborative divorce is an alternate dispute resolution method where the couple works together with attorneys and other professionals to reach a mutually acceptable agreement on the issues involved in their divorce, Tn addition to their attorneys, parties may include a variety of other professionals, such as financial experts, financial advisors and mental health professionals to provide guidance and support.
With collaborative divorce attorneys participate and advocate for their respective client’s interests, but within the collaborative framework. The attorneys retained for the collaborative divorce strive to ensure that their client’s concerns are addressed and that their objectives are met without disparaging the other party. Attorneys may also assist clients in assembling their-collaborative team with other professionals.
As with Mediation, there are advantages and disadvantages to collaborative divorce. The advantages and disadvantages of Collaborative Divorce are:
Advantages of Collaborative Divorce Process
Maintaining Control:
In collaborative divorce, both parties have greater control over the outcome of their divorce. They actively participate in negotiations and decision-making, working together to find solutions that meet their unique needs and priorities. This can lead to more satisfying and personalized agreements compared to decisions imposed by a court
Reduced Communication:
Collaborative divorce promotes open and respectful communication between the parties. It encourages cooperation and problem-solving rather than escalating conflict. By focusing on effective communication, the process can help to preserve or improve the relationship between the divorcing spouses, which is especially important when there are children involved.
Cost-Effectiveness:
Collaborative divorce can be more cost-effective compared to litigation. Since the parties work together and share the cost of professionals involved in the process, such as attorneys, financial experts, and therapists, it can often be less expensive than engaging in a lengthy court battle.
Efficiency and Timeliness:
Collaborative divorce can generally be resolved more quickly than traditional litigation. By avoiding court delays and the need to adhere to court schedules, the process can save significant time and allow the parties to move forward with their lives sooner.
Emphasis on Long-Term Solutions:
Collaborative divorce encourages the parties to consider their long-term goals and the best interests of everyone involved, especially children. By focusing on mutually beneficial solutions, the process aims to create sustainable and durable agreements that can provide a foundation for future co-parenting and post-divorce relationships.
Disadvantages of Collaborative Divorce Process
Can be Expensive:
While an uncontested divorce is widely seen as the most expensive option when a couple goes through a divorce, a collaborative divorce can be expensive as well. In addition to each party paying for an attorney to represent him or her in the collaborative process, parties will often be expected to retain other professionals as well, including mental health professionals and financial specialists.
Not Suitable for all Matters:
Collaborative divorce is generally not suitable in cases involving power imbalances between the parties or where there is a history of physical, mental or emotional abuse. Additionally, collaborative divorce may not be appropriate in cases where there are complex financial issues, such as the valuation of business interests.
Challenges to Agreement:
In order for a collaborative divorce to be successful, both parties must be willing to negotiate to reach a mutually beneficial agreement. If one or both of the parties are uncooperative during the collaborative divorce process, then the process can become drawn out, which leads to more aggravation and increased costs.
Withdrawal from Collaborative Divorce Process:
If one or both parties decides to terminate the collaborative divorce process and pursue litigation, then often the attorneys involved in the collaborative process are unable to represent the parties in the litigation process. Therefore, both parties need to retain new attorneys.
Contested or Litigated Divorce
In New York State, a contested divorce refers to a divorce case where the parties are unable to agree on one or more issues involved in their divorce, including equitable distribution (i.e. division of assets and debts), maintenance, child custody and visitation or child support. In this situation, one of the parties commences a court proceeding before an issue or issues is resolved. The issues will ultimately be resolved through further negotiation and the assistance of the courts.
The thought of having to go through a contested divorce can be frightening, especially to those who have little or no experience with the court system. An experienced matrimonial attorney can advise you through this process.
Methods to Approach and Resolve a Divorce Action
Matrimonial cases, often referred to as divorce cases, can be handled using one method or a combination of methods. The most common methods are: (1) Uncontested Divorce, (2) Alternative Dispute Resolution or (3) Contested Divorce. It is important that you speak with an experienced matrimonial attorney to determine the approach that is beSt for you. This section discusses the three most common approaches to resolving a divorce action.
Uncontested Divorce:
In New York State, an uncontested divorce is when the parties are able to agree on all key issues that affect their divorce. These may include (I) economic issues of equitable distribution of marital property, (2) the payment or waiver of spousal support, (3) the payment of child support, (4) the payment.of counsel and experts' fees and expenses and (5) custody and visitation of the children of the marriage.
An uncontested divorce in New York is generally the quickest and most cost-effective way to obtain a divorce. If you and your spouse are able to agree on the issues involved in your divorce, then typically one spouse will retain an attorney for the purposes of drafting a formal agreement that memorializes the terms agreed upon by the parties.
An attorney or attorneys may also be retained in an uncontested divorce to help the parties negotiate and resolve issues that the parties cannot agree upon between themselves prior to commencing an action for divorce.
While it is recommended that both parties retain their own attorneys to negotiate, draft and/or review the written agreement, it is not necessary. It is important to note that in New York State, one attorney cannot represent both parties. If both parties want representation, they will each need to retain their own and separate attorney.
After the agreement is drafted and reviewed by the parties and/or their attorneys, then a divorce action is commenced. Additional documents will need to be prepared and signed by both parties, however, the terms of your agreement will be incorporated into the Judgment of Divorce. Typically the parties do not need to appear in court for an uncontested divorce.
Alternative Dispute Resolution
Two common methods of Alternative Dispute Resolution (“ADR”) that are used in divorce cases are mediation and collaboration. Parties choose a method of ADR when they are willing to negotiate and they desire to reach a mutual agreement outside of court. ADR can be less costly than proceeding to a contested divorce, however, that is not always the case.
Alternative Dispute Resolution is not suitable for all cases. If both parties are not vested in negotiating outside of court, then ADR will prove to be merely an exercise in futility and a waste of time and money. Further, ADR is not appropriate in cases where there is a history of domestic violence. You should consult with an attorney to decide if ADR is a good option for-your specific situation. The two most common forms of ADR in New York divorce cases are:
- Mediation and
- Collaborative Divorce.
Mediation
Mediation is where a neutral third party, who is a trained mediator, helps assists the parties in reaching a mutually acceptable agreement. The role of a mediator is to facilitate communication and negotiation between the parties, striving to assist them in reaching a resolution to their divorce issues without the need of judicial intervention.
Each mediator has their own way of conducting the mediation process, but their goal is the same, which is to assist a couple in reaching an agreement. During the mediation process, the mediator will typically meet with both spouses together and sometimes separately.
The mediator will help identify the issues in dispute, clarify each party’s interests and concerns and promote a cooperative environment for furthering a settlement. A mediator should not make decisions for either or both spouses, but rather assist them in reaching their own solutions to the unresolved issues.
If the parties have been able to reach an agreement on most issues, but not all, then mediation may be helpful for limited issues as well. For example,
if the parties have children, and they have agreed upon everything except for a parenting schedule for the minor children, then a mediator may be retained by the parties to resolve that one outstanding issue.
Typically, if an agreement is reached through mediation, the mediator will prepare a Memorandum of Understanding (“MOU”), which will be provided to the parties. The MOU will outline the terms of the agreement reached between the parties.
Once an MOU has been received by the parties, one or both parties will retain an attorney to review the MOU and draft a formal written agreement for the parties to sign and subsequently incorporate into the eventual Judgment of Divorce.
As with any decision in life, there are advantages and disadvantages of using mediation. Some of the advantages and disadvantages of mediation are:
What to Expect in A Contested Divorce
Each divorce case is different and the approach taken, even within the context of a contested divorce, will vary from each case. As repeated throughout this guide, it is always important to retain an experienced matrimonial and family law attorney to advise you through this process. Negotiation and search for resolution will continue throughout the contested
divorce process. Just because you or your spouse is seeking a contested divorce does not mean that negotiations are over and you have to go to trial before a judge. While trial is always an option, a high percentage of contested divorce cases are eventually resolved through agreement.
Below is a general outline for the course of action that a person can expect in a contested divorce action.
File a Petition: To commence an action for divorce, the party seeking the divorce files an Application for Index Number and a Petition, also referred to as a Pleading, with the office of the county clerk. In New York State, the pleading that must be filed to commence a divorce action is called a Summons with Notice. Commonly, a Verified Complaint will also be filed with the Summons, but it is not required. The date that the Summons with Notice is filed is referred to as “the date of commencement.” This date, “date of commencement,” will be referenced throughout the divorce process.
The spouse who commences the divorce action is referred to as the Plaintiff The other spouse is referred to as the Defendant. Generally, it does not matter which party starts the divorce action, however, there are situations where it can be important. You should discuss this with an experienced matrimonial attorney.
Petition Served on Spouse:
After the petition has been filed, it is necessary to serve it upon the Defendant. In New York State, the Plaintiff has one hundred twenty (120) days to serve the Defendant, however, most individuals seek to have their spouse served as soon as possible to avoid delay. Service can be accomplished in a number of ways. If the Defendant is known to be represented by an attorney, often times the attorney representing the Defendant will agree to meet with the Defendant and serve him or her with the pleadings. If the Plaintiff does not have knowledge that the Defendant has retained an attorney, then, often times, a process server is hired to serve the Defendant.
In certain instances a party does not know where their spouse is living, and they have not had communication with him or her in months or years. If this is the case, there are other methods provided by the court to serve the Defendant, however, they are rather complicated and it is advisable that you retain an experienced matrimonial attorney to assist you in this process.
Answer the Petition:
Once the Defendant has been served, they have limited time to file an Answer to the Petition, generally twenty (20) or thirty (30) days depending on the method by which they were served. Often times, the Defendant will file a cross-petition, referred to in New York State as a “Counterclaim.” As a general rule, it is in a Defendant’s best interest to file a counterclaim at the same time that the Answer is filed.
Request Judicial Intervention:
A Request for Judicial Intervention (“RJI”) is typically filed by the Plaintiffs attorney shortly after an Answer has been received. The RJI is a form document that needs to be completed and filed with the county clerk’s office. This form essentially requests a judge to be assigned to your matrimonial case.
Disclaimer
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