Perhaps you've noticed that Divorce Mediation has become more mainstream in the last few years. Why is this?
As the public becomes more aware of the various alternatives available, Mediation, once primarily the province of social workers and psychologists, begins to attract better educated and computer savvy couples looking to save time, emotional turmoil and lots of money.
How does Mediation accomplish this? To begin with, Mediation is a process where a couple sits with a Mediator who acts as a "guide" in an attempt to structure a binding settlement agreement which dissolves a marriage.
Currently, there is no regulation on Mediators, and basically any one can hold themselves out to be a Divorce Mediator. However, in order to draft a legally binding Agreement, the person who drafts the Agreement must be an attorney. Often, social workers, psychologists, or other non-attorney mediators will draft a document called a "memorandum of understanding". They draft this because they don't hold a law license, and don't want to run afoul of the state laws that prohibit practicing law without a license. A couple who concludes Mediation with a memorandum of understanding first has to go to an attorney to have a legally binding settlement agreement drafted, often using the memorandum of understanding as a basis for the final settlement agreement. The problems that often arise in this scenario, however, is that the momentum is lost from mediation to final agreement, the lawyer charges additional legal fees to draft the final agreement, and both parties' interests are not represented during the drafting stage, since the attorney is only legally allowed to represent one party.
Using a Divorce Mediator who is also an attorney is far more practical and economical. Instead of going through the process twice, the Attorney who acts as a divorce mediator will mediate the dissolution and draft a legally binding agreement. The only prohibition the lawyer has is in the final submission to the Court for the processing of the final paperwork for submission for a divorce. There is no prohibition in filing a separation agreement with the County Clerk's office , however, and the mediator will provide this service, for the couple, typically at no charge.
Various para legal services have recently sprung up up in recent years. These organizations will submit the paperwork on behalf of the couple for a nominal charge, typically one to three hundred dollars.
The Divorce Mediation Center of Suffolk, Inc.., processes over twice the amount of separation agreements than divorce agreements. The reason for this is that typically, there is only one advantage for a couple to enter into an agreement for an immediate divorce: the ability to get remarried within one year. Quite honestly, most of the couples who come through our office are so fed up with being married that getting remarried is the furthest thing from their mind.
The "convenience" of an immediate divorce and the mental closure associated with it, often confuses couples who perceive this as an advantage. Instead, it would often be more beneficial (financially) to obtain a legal separation by negotiating and signing a separation agreement.
The advantages to a separation agreement are many, most of them financial. First, as a separated couple the same family health, hospitilization, medical and dental plans can be kept intact. The cost of a family plan is usually the same to one spouse whether the other spouse and children are covered or if the children are covered without the other spouse.
While COBRA (the congress' omnibus act to allow former employees of a company or their spouses to be continually covered after a termination or divorce) is usually available, it often costs in excess of three hundred dollars a month- money that can be saved by using a separation agreement.
Filing joint tax returns is another decisive advantage to getting a separation agreement. Joint filings often benefit spouses who earn joint income; and for spouses where one spouse earns a lot and the other a little or nothing. Because the tax law changed (include cite here) to give the custodial parent, or the primary custodial parent) the tax exemptions for the children, filing jointly often more fairly distributes this very beneficial tax advantage.
Finally, if a mistake is to be made, it is always better to err on the side of caution. Legally separated spouses must each wait a full year from the signing of the separation agreement to file for a divorce. Using the separation agreement as "grounds" for a divorce eliminates the typical "faulted" complaints (the legal paperwork that accompanies a summons in a law suit for a divorce) which require one spouse to blame the other for some unacceptable behavior, i.e. abandonment, cruel & inhuman treatment, etc.
So why don't attorneys encourage their clients to enter into separation agreements? Well, when the facts are in favor of it, some good attorneys do. But there isn't anywhere near the money for the lawyers in negotiating separation agreements as there is in litigating divorces. By definition, separation agreements mean the parties must "agree". Lawyers are more trained in the art of advocacy, and zealously advocating the rights of their clients, than they are as peacemakers.
The whole concept of mediation is to structure a workable agreement to which both parties have worked on, and given their input. The mediators are specially trained in conflict resolution, and are often able to resolve problems to which the parties were at a standstill. The divorce mediator who is also a lawyer is able to intertwine his or her expertise in conflict resolution with his or her knowledge of the law to facilitate a workable legally binding agreement by which the parties can separate or divorce, and abide by the terms designed by both of them.
Divorce Mediation, it's time is now.
For further information or to schedule a mediation session call 631 462 3100.