Choose your process

The first thing most people want to know is whether they can mediate their divorce without hiring a lawyer first.

The answer is “yes,” but it is recommended that each spouse have a lawyer review any proposed mediated agreement before it is signed.  A written mediation agreement that is signed by both parties is a binding contract and can be enforced by either party.

Mediation can also take place when both parties have lawyers present.  This can be helpful when specific legal advice is requested.  A mediator is a neutral party and is prohibited from giving legal advice to either party (even if the mediator is a lawyer).  Having a lawyer present can keep the mediation moving forward by providing answers to legal questions in real time.

Often mediation involves only the spouses and the mediator.  This is sometimes called “private mediation” and is described in more detail below.

Although every mediation is unique, most mediations follow a similar pattern.  Typically, you each will speak with the mediator in advance of the day of mediation and provide background information about your marriage, family and the issues to be mediated. You may also be asked to complete a questionnaire and financial affidavit prior to mediation.  When advance communication is not possible, this information will be gathered at the outset of the mediation.

At the start of the mediation the mediator will explain what you can expect from the process.  For example, the mediator may tell you that everyone will be in the same room for the entire mediation or that you will sometimes meet in separate sessions so that the mediator can hear your views or positions privately. The mediator will also ask you to sign an agreement that says that everyone in the mediation will keep what is said during mediation confidential and that you understand that the mediator can’t disclose any of what is discussed or done in mediation if there is a court proceeding later on.

After the mediator has gone over the basics, you will have an opportunity to make a statement about your situation, as will your spouse.  After each of you has had a chance to speak, the mediator is likely to ask some questions to clarify or get more information about what you have said. The mediator may also reflect back what you have said in order to be sure that both the mediator and your spouse have understood all of your points.  The same process will apply with respect to your spouse.

The next step will be to assess where you and your spouse agree and where you need some work to reach an agreement.  Once you have a sense of what needs to be accomplished, you, your spouse, and the mediator will plan how you are going to proceed.  It is possible that you will need to gather more information, especially if you are dealing with significant property issues and/or child custody questions.  The mediator will help you figure out what information you need.  

At the outset of the mediation, the mediator might suggest that you deal with simpler issues first.  This might feel like “beginning at the end” but an early agreement on some issues will help the mediation to get off on the right foot.  The mediator will help you stay on track and brainstorm options and possible solutions.  

The mediator also will encourage you and your spouse to express your opinions, positions, and what is important to you, and will help you listen to each other in ways that will make a resolution more likely.  The most important things you can do to make your mediation successful are to be open to compromise, to listen to what your spouse is telling you about what is important to them, and to respect your spouse’s point of view.

Understanding your spouse’s position does not mean you have to agree with it.  But it is possible that once you do understand what your spouse’s real concerns are, you will have new ideas about how to resolve things.  Your efforts to understand your spouse’s underlying interests will often encourage your spouse to do the same, and you are more likely to reach a solution that works for you if your spouse really understands what is important to you.  Being open to compromise means that you are not attached to a particular solution – a compromise that works is one that satisfies some of your interests and some of your spouse’s interests.

Once your negotiations are finished and you have agreed on solutions, either the mediator or one of the lawyers, if present, will write an agreement and, in many cases, a parenting schedule or parenting plan.  These documents will be incorporated with the rest of your divorce paperwork and will become part of your divorce judgment.  Your agreement, once signed, will be binding.

Mediation is a very flexible process.  For example, a mediation does not have to happen all at one session. Often both parties will agree to mediate for 2 or 3 hours and then take a break and reconvene on another day.  Work or school commitments may make longer mediation sessions impossible.  Also, mediation can be emotionally draining, and parties recognize that their ability to make good decisions can be compromised if they are stressed or distracted by the emotions associated with divorce or separation.

The mediator can also put together summaries of issues or prepare partial drafts of agreements during the time between mediation sessions.  These can help spouses focus on what issues remain unresolved or additional information that needs to be gathered.  This will make the next mediation session more productive and avoid wasting time discussing issues which cannot be resolved immediately.

“Filing for divorce” is essentially the same procedure as suing your landlord for property damage from a leaky pipe.  You are suing your spouse for divorce.  Whenever you sue someone you start a process called litigation.

The rules for litigation are designed to move a case toward a trial which will determine who is right, who is wrong and what remedy is appropriate.  The rules are fairly complex and offer attorneys a myriad of opportunities to use them for delay and harassment of the other party and their lawyer.  The court is committed to moving each divorce case forward because there are thousands of divorce cases filed each year.  

Below is a quick summary of the steps and timing of the stages of litigation in a divorce case:

1. Filing the Complaint for Divorce

The Complaint for Divorce asks the court to grant one spouse a divorce.  Most divorce complaints look pretty much alike and address only the issues which the court can legally resolve in a divorce.  For example, a Complaint for Divorce involving minor children will generally ask the court to award the filing spouse’s an equitable share of the marital property and all of the filing spouse’s separate property, and determine the amount of child support to be paid, a determine the amount of alimony to be paid, and to award the filing spouse with legal and physical custody of the minor children.

2. Answering the Complaint for Divorce

The Answer must be filed with the court within 30 days after the Complaint for Divorce was filed.  The Answer is the other spouse’s opportunity to dispute any statements in the Complaint and make any counterclaims.

Temporary Hearing – Depending on the facts and circumstances, there might be temporary issues which need to be resolved while the case is pending.  Typically, these issues are setting a parenting time schedule, setting an alimony amount, and setting a child support amount.  If either party needs support during the divorce process or wants set time with the children, they file a motion asking the judge to order what they have asked for.  The other side files a response to that motion, a hearing is held where attorneys argue both sides and the judge makes a ruling that will usually stay in effect until the divorce is final.

3. Discovery 

Discovery is the legal process allowing each spouse to ask questions which the other spouse must answer under oath.  This procedure allows each side to build its factual case against the other party.  In a divorce case, discovery requires spouses to exchange information related to their own economic, financial, and personal situations.  Discovery can be a simple, informal exchange of documents and information.  Discovery can also be conducted by each spouse using the tools of formal discovery – Requests for Production of Documents, Interrogatories, Requests for Admissions and Depositions.

Requests for Production of Documents require both spouses to make available all documents that relate to the divorce, the marriage, their separate property, and income.  Both spouses have the right to see most documents, even those that seem to be only tangentially related to the divorce.  

Interrogatories are questions designed to determine what the other spouse’s version of the facts is and what facts the other spouse will be using to support his or her demands. 

Requests for Admission ask a party to admit or deny certain facts pertaining to the divorce and related issues.  There are very few areas that are off limits – questions about finances, communications, relationships must be answered under oath.  Providing a less than truthful answer is perjury – lying under oath.

Depositions are in person examinations of a spouse or other person which provide sworn testimony which can be used as the divorce litigation proceeds.

There are very few areas which are off limits during discovery, and if there are disputes about whether something is “discoverable” or whether one party is adequately responding to discovery, one party can ask the judge to hold a hearing and resolve the dispute.  Often one spouse’s lawyer will object to certain questions the other spouse has asked or to certain requests for documents the other spouse has made.  These objections will delay the discovery process and increase the cost to the parties. 

4. Preparation for Trial and Trial

The ultimate outcome of a divorce case is really never in doubt – the parties will be divorced.  But the trial should be taken seriously because at trial the judge will be making final decisions about critical issues that will affect how the spouses and their families live for years to come.  The judge will decide how marital property gets divided, how much child support is paid, how much alimony, if any, is paid, and what the parenting plan will be for the children.  

Trial preparation is something lawyers must take very seriously and, therefore, spend a lot of time on.  Both spouse’s want their lawyer to be prepared to present their case as coherently and forcefully as possible. By the time trial preparation begins, it is likely the divorce case has been underway for almost a year so neither spouse will be easily dissuaded from the belief that their positions are the right ones.

5. Paying for the Divorce

Who pays for the cost of a litigated divorce? 

The short answer is everyone in the family pays.  Every dollar spent on litigation is one less dollar available after divorce.  

The longer answer is it depends on who has the ability to pay.  Typically, a fully-litigated divorce will cost anywhere from $75,000 to $150,000.  Often one spouse has access to more disposable income than the other spouse.  In situations where one spouse earns significantly more income than the other spouse, the higher earning spouse will be able to pay more in attorney’s fees as the case progresses.  The lower earning spouse is still entitled to legal representation so it is possible that the judge will order the higher earning spouse to pay some or all of the other spouse’s unpaid legal fees.

It is important not to let the discussion about Husband’s attorneys’ fees or Wife’s attorneys’ fees distract from the fact that in most divorces the money that is being paid to the lawyers is marital property – meaning it is wealth accrued during the marriage and both spouses should receive an equitable share of it.  To the extent that either party pays lawyers’ fees, the total amount of marital wealth available is reduced.  More importantly, every dollar spent on lawyers’ fees is a dollar less that is available for the support and education of the couple’s children.  In divorces not involving children, it is a dollar that is no longer available for retirement, a mortgage down payment, returning to graduate school, taking a vacation… the list goes on.