FREQUENTLY ASKED QUESTIONS
We appreciate that this is an overwhelming time, and that there are so many questions to ask a divorce mediator. Here, we have attempted to answer some of the most common questions about divorce mediation in general as well as divorce law in New York state. Please call Divorce Mediation Professionals to schedule a free consultation with one of our divorce mediators, at which time the two of you will have ample opportunity to ask any other questions you may have.
WHAT IS DIVORCE MEDIATION?
In its simplest terms, it is a process to help the two of you address and successfully resolve the problems that you now find yourselves faced with. However, unlike an adversarial divorce proceeding, it will not commit you to a long, bitter and costly struggle. Nor will it make adversaries of you, which will be of no help at all. Rather, it will provide you with a mediator who, acting as a neutral third party, will help the two of you address all of the questions concerning the custody and care of your children, the division of your assets, support, and the many other issues that should properly be resolved in your ultimate agreement. Just as importantly, its aim will be to leave you with an agreement that both of you feel you can live with, not an agreement that only meets the needs of one of you, as is so often the case when couples turn to the winner-take-all world of adversarial divorce proceedings.
HOW LONG WILL IT TAKE?
As we all know, concluding an agreement in an adversarial divorce proceeding can take forever. In some instance, it can even take years. In divorce mediation, however, it only takes a fraction of that time. In fact, most couples will get to the point where it is possible for an attorney to prepare the initial draft of their agreement after three to five sessions.
WHAT IS THE COST?
As we all know, getting a divorce today can be very expensive. If the two of you turn to adversarial legal proceedings, it can cost a fortune. In fact, it is not uncommon for each spouse to spend tens of thousands of dollars in a litigated divorce. And they can spend that amount even if they are not wealthy. Divorce mediation, on the other hand, does not cost a fortune, which is one of the reasons why more and more divorcing couples are turning to it. In most instances, it will cost only a small fraction of what an adversarial divorce proceeding will cost. Nor will there be any retainers to pay. In fact, the retainer charged by most divorce lawyers will be equal to or greater than the entire cost of a mediated divorce. Just as importantly, there will only be one fee for both of you, not two.
Of course, every situation involves different issues. For that reason, cost is generally a function of time, and the fee will be commensurate with the time it takes for the two of you to conclude an agreement, and with the level of complexity of that agreement. During the initial free consultation, after your mediator has an opportunity to meet with the two of you and to get a sense of the complexity of the issues involved, he or she will be able to give you an estimate of cost.
WILL I BE LEFT WITH A LEGALLY BINDING AGREEMENT?
Yes. Agreements are binding upon people because they sign them, and because they are executed in the manner directed by the law. They are no more binding because they were concluded in an adversarial divorce proceeding, where they were each represented by separate lawyers, than they are when they are concluded in mediation, where they are assisted by one lawyer.
DO WE OWE IT TO OUR CHILDREN?
Everyone knows that divorce is a traumatic experience and of course, your divorce is going to be difficult for your children. However, going to war over your divorce will not make it easier for them. It will only make it more difficult. When all of what you are now going through is over, it is essential that the two of you are able to deal effectively together, at least where your children are concerned. Your marriage, and your relationship to one another, may be over.
But your relationship with your children as their common parents is not. All of the studies on the effects of divorce on children have come to the same conclusion. It is not the fact of your divorce that will do permanent damage to your children. It is how you go about it. Did the two of you sit down in a common effort to address the issues that your divorce left you with and to make as much sense of it as you could? Or did you go to war over it, your and your attorney’s only object being to get as much as you could and to give as little as you have to?
Yes, you owe it to your children not to go to war.
WHAT IF I’M NOT HAPPY WITH MEDIATION?
Unlike a judge, a mediator has no power. He (or she) does not have the power to make any decisions in your life. (Unlike a judge, he doesn’t even have the power to make you attend the meetings.) That being the case, you are free to stand up and leave at any time. Thus, you do not have to worry whether your worst fears will be realized, or that the mediation will go in a direction that you do not like. Should that occur (and it very unlikely that it will), you are always free to terminate it. All that you have to do is stand up and leave.
The same is not true with an adversarial divorce proceeding, however. To be sure, you may have all of the power to start it. However, once it has begun, it takes on a life of its own. Moreover, rather than being the principal players, as you will be in divorce mediation, the two of you will be but bit players from the sidelines of the drama that you have set in motion.
As those who have turned to adversarial legal proceedings will tell you, you will literally have no control over those proceedings. On the contrary, it will become like a runaway train, and it will be almost impossible for either of you to stop it.
The question that you really should be asking yourself, therefore, is what you will do if you are not happy with the adversarial divorce proceedings that you have set in motion? Unfortunately, since you will have lost all control of those proceedings once you have started them, there is no answer to that question. That is very frightening.
HOW DO I CHOOSE A MEDIATOR?
Choosing a divorce mediator is perhaps the most important decision that a divorcing couple has to make. But how are you going to make that decision? Divorce mediators are very different. They do not even come from the same professions. Some are lawyers, some are mental health professionals, and some are neither. Nor do they have a license from the state attesting to the fact that they have completed a certain course of study. There is not even a test that they must take or pass in order to become a divorce mediator. Worse, while many mediators will display certificates on their wall, those certificates really evidence nothing more than the fact that they have paid for, and completed, a very short course on the subject.
How then should you choose a divorce mediator? There are a number of things that you should consider.
- What is the professional background of the mediator in question that qualifies him or her? What is the quality of their education and previous experience? How long have they been engaged in the practice of divorce mediation? How many cases have they handled?
- Is the person engaged in the practice of divorce mediation on a full time or part time basis? In other words, is divorce mediation something that he (or she) does “on the side” or is it his principal vocation?
- What services does the mediator provide? Divorce mediation consists of three things: helping a couple conclude an agreement; preparing their agreement and seeing to its execution; and, finally, getting them a divorce. Most mediators do not and can not help a couple do all three of these things, however. That can substantially increase the time and the cost to complete the process.
- What is the divorce mediator’s reputation in the community?
- How comfortable do you feel with the mediator? Do you feel that he or she is intelligent and knowledgeable, and conducts him or herself in a professional manner? Do you feel comfortable and secure in his or her presence? Does he or she strike you as a caring person? Does he or she instill confidence in you?
Without question, there will be another consideration in your mind, as well. That is cost. Money is important, particularly now that you are separating. Nevertheless, you must be careful. Divorce mediation takes a great deal of knowledge, skill and experience.
As in most professions, not all divorce mediators are the same. Rather, their ability varies tremendously. So don’t be fooled into thinking that it doesn’t make any difference who you use. It does. Just as you would want the best divorce lawyer to represent you were you to turn to adversarial legal proceedings, you want the best divorce mediator to assist you if you turn to mediation.
WHAT ARE THE GROUNDS FOR DIVORCE UNDER NEW YORK DIVORCE LAW?
Under New York Domestic Relations Law, there are seven grounds for divorce; four fault-based, two separation-based, and one no-fault based grounds. The grounds are:
- Cruel and inhuman treatment (fault based)
- Abandonment (fault based)
- Imprisonment (fault based)
- Adultery (fault based)
- Living separate and apart by judicial separation judgment or decree (separation based)
- Living separate and apart by separation agreement(separation based)
- Irretrievable breakdown (no-fault divorce)
These are references in Domestic Relations Law Section 170.
WHAT IS NO FAULT DIVORCE?
Prior to 2010, the only way to get a true “no fault” divorce was to enter into a separation agreement and wait one year to file for divorce (known as a conversion divorce). If a couple did not want to wait one year, that meant they would have to agree to use one of the other “fault” grounds in order to get a divorce…READ MORE
WHAT IS AN UNCONTESTED DIVORCE?
An uncontested divorce occurs when the couple has come to an agreement that there will be a divorce and has agreed on all related issues, including custody, spousal support, child support and the division of marital property…READ MORE
HOW IS MEDICAL INSURANCE COVERAGE HANDLED IN A DIVORCE MEDIATION?
Couples facing legal separation or divorce must consider the implications of that process upon their family’s health insurance coverage. Commonly in marriages, one spouse relies upon the health benefits of the other party, either those received through the other’s employer or which their spouse obtains privately…READ MORE
HOW IS CHILD SUPPORT DETERMINED?
One of the first questions that a couple with children will ask a divorce mediator is how child support is determined? New York State has guidelines to determine the appropriate level of child support based upon the combined incomes of both the “custodial” and “noncustodial parent”…READ MORE
WHAT IS THE DIFFERENCE BETWEEN A DIVORCE ATTORNEY AND A DIVORCE MEDIATOR?
The main task of a mediator is to act as a neutral voice assisting a couple in coming to an agreement that both parties can agree to, one which is in the best interest to both of them. A divorce mediator provides information and a constructive environment to help the parties communicate, and understand their individual and common interests so that they can explore reasonable options and make practical decisions that benefit their family…READ MORE
WHAT ARE MY OPTIONS FOR LEGAL SEPARATION IN NEW YORK STATE?
The most common method of obtaining a legal separation in New York is by entering into a Separation Agreement. Although legal separation can also be obtained by decree of judicial separation, this is not something that is commonly done…READ MORE