Can Older Children in Divorce Pick Which Parent to Live With?

This article was written by Hance Law Group associate attorney Jonathan James.

 

Recently, some clients have asked me about an oft-misunderstood element of the Texas Family Code. They believe that once a child turns 12 years old, he or she can select which parent to live with, and that’s not quite the case. When a child in Texas turns 12, he or she can (with a parent advocating for the child) initiate a process that asks a judge to rule on who should be the primary parent. But to say that the child can pick which parent to live with is an oversimplification that deserves some clarification.

 

The Texas Family Code allows a child whose parents divorce to interview with a judge, discussing which parent the child would like to be the primary parent with respect to parenting time—what is sometimes defined as the custodial parent.

 

The way the law is written, a child 12 or over shall get an audience with the judge when a parent requests it, whereas a child under 12 whose parent requests it may get a similar audience with the judge.

 

The first thing that’s important to know in this situation is that the judge rules on primary custody, and not sole custody. Provided that a parent isn’t being abusive or doing anything to call parental rights into question, both parents will still be granted parenting time in whatever ruling the judge makes.

 

It’s also important to know that the judge will still make a final determination based on what he or she believes to be best for the child. The child might provide information in the interview that the judge will use in determining each parent’s status, but the judge can certainly rule against the child’s wish to change the status quo.

 

My experience is that judges are not particularly eager to be involved in these interviews. Some will follow a specific script, while others might just ask the child about the weather or other innocuous topics. The law doesn’t make any specific requirements as to what the judge can ask or not ask; it’s up to the individual judge’s discretion.

 

While a lawyer for one of the parents can request both lawyers of the parents to be present at the interview, this is generally not encouraged, and based on the excellent advice I’ve received from past and present mentors, it’s not something I’d normally want to do (except in very unique circumstances). Similarly, a lawyer can request that a court reporter be present to record the interview, but this is also not encouraged by family lawyers experienced enough to have been involved with these kinds of cases.

 

Some of the interviews might actually reveal sound, logistical reasons that custodial status should be switched—perhaps a high school student wants to be closer to school for sports or other activities, and Dad lives closer to the school than Mom. But it could be a situation in which Dad isn’t as strict about a boyfriend staying over as Mom is, to a which a judge might rightly say, “This isn’t what I’m here to do.”

 

I know of one Collin County judge who keeps a “magic wand” in his office for just these kinds of interviews. He will ask the child if he or she could be granted one wish, what that would be. Nine times of ten, the child responds, “I want my parents to stop fighting!”

 

As children get older and become more independent, it’s important for them to advocate for themselves, but I think that parenting time issues work best when parents can negotiate them—with children’s insights and input integrated into the final decision—without a judge stepping in.

 

While some situations ultimately require a judge’s involvement, you should remember that a judge will rule according to what he or she thinks is best for your children (based on the evidence presented to that judge), and you should never agree to something in a divorce decree thinking that a judge will change it in your favor. And you should never agree to a custody agreement with the idea that your child will be able to independently change it with your encouragement later, because that simply isn’t true.

When Does a Same-Sex Marriage in Texas Begin?

This article was written by Hance Law Group associate attorney Jonathan James.

 

With the possibility of same-sex marriage now a reality in Texas (and all other states), there’s an interesting debate that might come up as the possibility of same-sex divorce in Texas becomes more and more real for some couples.

 

The question is simple yet could be potentially, legally complicated: When does a same-sex marriage begin?

 

For a man and a woman who get married, the start date of the marriage is pretty simple to prove, and in a divorce case, acknowledging when the marriage began is an important initial step in the divorce proceedings and in determining which marital assets are community property.

 

In common-law marriage cases (known as “informal marriage” in Texas), which Larry Hance has written about in the blog before (here and here), disputes come up because one party is challenging the idea that the couple was married.

 

But in same-sex marriage cases, things aren’t so cut and dried. Texas law holds that a couple who isn’t legally married can’t be divorced, but doesn’t factor in the life events that might call a couple’s marital status into legal dispute down the road.

 

Let’s create a not-so-far fetched example involving a same-sex couple in Texas. They decide to live together in 2005 and represent themselves to the world as a married couple. Because they can’t legally be married in Texas yet, their relationship can’t be considered a common-law marriage, but everything else about their living arrangement and how they present themselves to the world ticks the common-law marriage definition boxes.

 

Then, in 2015, the Obergefell v. Hodges ruling made same-sex marriages legal across the U.S. The couple in our example subsequently has a tumultuous year after that and decides to get separated. Let’s say, between 2005 and 2015, one member of the couple ran a successful small business that he sold for a significant sum of money prior to the marriage in Texas, while the other member was in more of a homemaking role.

 

Would the money earned prior to the to the Obergefell ruling be considered separate property belonging to the small business owner exclusively? Or would it, as it would in a common-law marriage ruling, be considered community property?

 

The first question to determine this would be whether or not the parties are married under the common-law marriage laws in Texas? And if so, when did that marriage begin? Did it begin in 2005; or, did it begin after the Obergefell ruling in 2015? My gut tells me that the couple’s prior history would factor in and they’d be ruled a couple since when they first started living as one. But my gut does not establish legal precedent in Texas—it’ll take an official ruling on a same-sex divorce case like this, which we don’t yet have, to create one.

 

Another example of this uncertain area would be when you have a same-sex couple that married in California in 2008, but now lives in Texas, would want to divorce. Since same-sex marriage was not recognize in Texas until after the Obergefell ruling, would a Texas court consider the marriage to have begun (and community property to accrue) since 2008 or 2015?

 

As a lawyer who is interested in the evolution of family law, I’m fascinated to see how this will develop as precedent-setting cases come before Texas judges. But as a lawyer who wants everyone to be treated fairly, I also hope that there will be a precedent-setting ruling sooner, rather than later, giving same-sex couples the same considerations as heterosexual couples when it comes to divorce.

Why Interest-Based Negotiations are Best

This article was written by Hance Law Group principal Larry Hance.

 

Collaborative divorce has its roots in the idea of interest-based negotiation. There’s a foundational 1981 book, Roger Fisher’s Getting to Yes, that forwards the idea of “principled negotiation.” When you have an idea of what is a fixed need and what is a flexible need, you can go into a negotiation knowing what’s absolutely necessary to you. You then, thereby, have a better sense of what acceptable solutions might be in a negotiation, for each of the parties involved.

 

It’s an idea that became fundamental in the foundations of collaborative law. In an earlier blog article, I discussed the story about two people fighting over an orange, and how the best solution for the parties might not be to cut it in half.  This is a perfect example of interest-based negotiation.

 

Interest-based negotiations work best in collaborative divorces, as there’s a framework to support them in which both lawyers are committed to solving issues without taking them to court. But after collaborative divorce practice introduced lawyers to the interest-based negotiation concept, we quickly learned that mediation and even litigation can benefit from an interest-based approach.

 

In litigation, interest-based negotiation techniques can help avoid court by showing the parties that there is a solution which meets both of their needs. Not everyone who opts for a family lawyer who only does litigation wants to go to court.  A good mediator will also use interest-based negotiation to help the parties find a solution they might not have thought of.

 

In some litigation cases, I’ve been able to go to the other party’s lawyer and say, “Does it really make sense for these folks to hash these issues out in court? Tell me why your client wants these particular requests.  Maybe there’s another way to get them than the way she is asking.” From there, it’s a matter of seeing what’s important to the other party, to get some basis for an interest-based negotiation. Then, my client and I can determine what he or she wants, and we have a starting point.

 

That process can often reveal solutions that we weren’t thinking of at the outset because we didn’t know what it was that the other party really wanted. There’s actually a danger that if we move ahead and proceed with litigation, we might “win” cases while getting our clients something that they don’t actually want.

 

The lawyers at Hance Law Group will get a general sense of a client’s interests from the very first visit, and then once we’re hired, we start with an intake questionnaire that collects information on the client’s interests, needs, and wishes. From there, we can determine how to best reach those goals. And while collaborative divorce allows us the most flexibility to address them, we can work toward those goals in whichever arena the case is to be resolved.

Is a “Kitchen Table” Divorce a Good Idea?

This article was written by Hance Law Group principal Larry Hance.

 

I recently ran across an article in the Texas Paralegal Journal, from Austin attorney Hillery Kaplan, entitled, “The Pitfalls of Kitchen Table Divorce.” It’s a good read for someone who is contemplating negotiating divorce terms with his or her spouse directly, rather than going to court or looking at an alternative form of dispute resolution.

 

She makes some good points about what couples who enter into a “kitchen table” divorce need to remember. These break down into two major categories: not involving your attorney appropriately through the process, or agreeing to something you may later regret, due to being in an emotional state that makes negotiation difficult.

 

I believe that if couples can work out divorce terms between themselves, it can be a good thing, but it’s such an important, life-changing process that it shouldn’t be done without an attorney’s guidance. I’ve seen more than one couple attempt a kitchen table divorce, only to make a mistake that could have been avoided if they’d involved an experienced family lawyer.

 

For each client looking for help to get a kitchen table divorce completed, I advise at least one consultation at the start of the process in which I can learn about the situation and let my client know what rights and protections he or she has. I also advise checking in with me during negotiations, before agreeing to anything, to make sure that it’s really the best way to proceed. “Let me think about this and get back to you” is sometimes the best thing to say in divorce discussions.

 

I’ve seen, for example, people who don’t understand the difference between community property and separate property, and who might be willing to give away something that shouldn’t even be on the table. I’ve also seen people bring in legal information brought in from the Internet that is either from a different state or is just plain wrong, and try to apply it to their situation.

 

For some couples, the kitchen table route is not only the quickest way to a divorce, but also the best-suited for a couple’s finances and temperament. I think it’s a great solution in some cases – but not all of them. I’m with Hillery Kaplan in pointing out these kind of divorces have their pitfalls, and I’m happy to help my clients navigate those pitfalls.

Child Support: How To Modify

This article was written by Hance Law Group associate attorney Jonathan James.

 

There are specific guidelines in Texas for modifying child support. According to the Texas Family Code, a child support order can be modified if:

 

  • It has been three or more years since the order was established or last modified and the monthly amount of the child support ordered differs by either 20 percent or $100 from the amount that would be awarded according to child support guidelines; or
  •  

  • A material and substantial change in circumstances has occurred since the child support order was last set.
  •  

    Those material and substantial changes aren’t just limited to a decrease (or an increase) in income; if an obligor becomes legally responsible for additional children, or if the children’s medical coverage and/or living situation has changed those count.
    Child support can be changed either in the courts or through what’s called the child support review process. The latter is a faster method, but it requires both parents to agree to the change in a meeting at an OAG office.

     

    The child support amount doesn’t change until the court officially changes it, even if a request for modification is underway, regardless of circumstances. And if parents do agree in the child support review process, it still does have to go to a judge for a final signoff, which the office will do.

     

    Some people who are paying child support might have questions about whether the money being used to truly support their children as intended. Most child support in Texas consists of men turning over part of their earnings to their ex-wives. Some of those men have great co-parenting relationships with their exes, who are also the mothers of their children. But some don’t, to put it bluntly, and might be suspicious of what their exes are doing with the money.

     

    So how do you know if the money you pay in child support is really being spent appropriately on your children? Most of the time, you don’t. If you suspect that the money is being misused, and that the children’s basic needs (food, clothing, shelter) might be compromised, it can be grounds for you gaining custody. (And if that’s granted to you, your ex would most likely be ordered to pay child support to you.) This isn’t the easiest thing to prove, but if you do honestly believe that your children aren’t getting what they need, it’s worth talking to a lawyer to see if you truly do have a case.

     

    It’s best, of course, to try to negotiate a reasonable child support payment fair to both parents and the children in the initial divorce settlement. In Texas, the income of the custodial parent doesn’t figure into child support calculations, but in a collaborative negotiation, alternatives to the guidelines can be determined, as long as each parent has sufficient resources to support the children.

     

    There is some new ground being broken with 50/50 custody arrangements. In some cases, both parents’ incomes will be taken into account, a child support amount would be calculated for each, and the parent with greater income would pay the parent with lesser income the difference in child support.

     

    As with many other areas of divorce, the collaborative approach allows for more innovation and a wider range of possibilities than the litigated approach when it comes to child support. But once a divorcing couple agrees to a child support amount, the modification process is set up to provide some level of stability for parents who receive child support.

    The Cost of Being Difficult

    This article was written by Hance Law Group associate attorney Beverly Via.

     

    If I could give one piece of advice to someone getting a divorce, it would simply be, “Don’t be difficult.” That’s not to say that you shouldn’t stand up for yourself, or that you should cave in during negotiations. You definitely should understand your goals following a divorce, and you and your lawyer should work toward those goals in settlement negotiations and/or trial preparation. But you can do that without being unnecessarily difficult.

     

    If there is no compelling reason to ask for sole custody and you make that request, your spouse will probably take that as an affront, and that will certainly sour any negotiations between you and your spouse going forward. Similarly, unreasonable financial requests can quickly shut down the conversation. I’ve seen couples even fight about the standard orders that dictate basic civil behavior during the divorce, because one spouse wants to amend a standard, straightforward document with unnecessary and unrealistic requests.

     

    One way that people are difficult in divorces is through unrealistic expectations during or following the divorce. And sometimes they do not intend to be difficult. Discuss your goals with your lawyer to make sure that you have realistic expectations and that you’re both operating with that understanding. If a lawyer is willing to entertain unrealistic expectations, he or she may be doing so under the guise of being a “pitbull” or “aggressive,” but might be more interested in racking up expensive litigation fees on your behalf than in actually fighting to achieve a good resolution for you. When deciding whether to hire a lawyer to take your case, I would recommend engaging in a discussion with the lawyer to help you determine what a realistic outcome is in your specific case and the most effective and efficient way to get that result.

     

    Some people are so invested in getting a divorce that they might think of it as “expensive, but worth every penny.” But there’s no reason to make it more expensive than it needs to be. Family lawyers see that all the time, though: People getting divorced shoot themselves in the foot, and then get mad when they have to pay lawyers to patch things up. We understand that people getting divorced are not at their best, but we also know that when people are unnecessarily difficult in a divorce, they put themselves at risk for costlier proceedings and less acceptable results.

     

    Another way people make things difficult for themselves is through their behavior. Operate with as much decorum as possible during the divorce, keeping in mind that you’re in the middle of legal proceedings impacting the rest of your life.

     

    Any romantic relationships in which you are involved or want to pursue should be put on hold until the divorce is final. Of course, that may seem easier said than done—particularly given the emotions involved in divorce. However, the presence of a significant other can cause talks to rapidly deteriorate as your spouse imagines you and your spouse’s children interacting with a new significant other, or learns about a romantic getaway that you enjoyed with someone else.

     

    Making money decisions is also an area that can be fraught with emotion. If one spouse is the sole or the primary wage-earner for the family, he or she can revert into thinking “it’s my money,” even if the Texas Family Code reinforces that Texas is a community property state and that all community property will be divided and shared, spousal support may be awarded, and if a couple has children, that child support will be paid in pretty much every case. And on the other side, a spouse who has opted to stay at home in the family’s best interest and who has depended on a working spouse for income, might understandably be very concerned about the future, but may not comprehend the lifestyle changes that typically come with a divorce.

     

    How can you help to not make money any more of a sticking point than it already is? Upon the filing of the divorce, follow the standing order. Consult with your attorney before making any changes that affect your assets or debts. Don’t do anything that will appear suspicious with your money. Moving assets and closing accounts might be something you believe to be strategic and advantageous and may eventually need to be done, but if your spouse sees you make one move that doesn’t look above board (even if it is), that could send your case down the discovery path where all your finances are scrutinized. If you are not forthcoming and complete about assets and debts at the outset, it will prolong your case and will become very expensive.

     

    As I tell some clients, I will work for you, but it’s your case. You will have homework to do, and you’ll need to be cooperative and forthcoming in order for me to do my best work. For the best results possible, heed the above advice and don’t make things more difficult for you by being difficult yourself. After all, divorce is hard enough as it is.

    Child Support: How It Can Be Litigated

    This article was written by Hance Law Group associate attorney Jonathan James.

     

    Your view on child support is most certainly defined by what side of the equation you’re on. If you pay child support to an ex-spouse, you can be concerned or even alarmed with how much you’re paying, and if you’re receiving child support, you might be similarly concerned or alarmed with how little you’re getting.

     

    The child support formula that the state of Texas uses is dependent on how many children the obligor supports; it’s a percentage of his or her net income (with a net income cap of $8,550 a month regardless of how much the obligor makes). If you want a look at the breakdown, and some other basic facts about how child support works, the folks at Collaborative Divorce Texas provide a good primer for that.

     

    When an obligor’s income is clearly known, child support is a rarely litigated area. But, when it is litigated, the disputes concern one of three areas.

     

    The first, and most common, is disputing what an obligor’s actual income is. If the obligor is a small-business owner, is self-employed, or has fluctuating income, it’s obviously harder to determine an income. Child support is determined from the net monthly income, not what’s on a paycheck stub, and in cases where income varies, the average net monthly income is typically calculated from a yearly gross income as the starting point.

     

    But business deductions and cash deals can complicate the question of the actual income. Litigation can include a discovery process in which the obligor’s business books are scrutinized.

     

    The second area concerns obligors who might be intentionally unemployed or underemployed at the time child support is calculated, in order to avoid a payment along the lines of what he or she might typically earn. For example, if a doctor suddenly leaves a practice and takes a job at a convenience store, he’s earning much less than he potentially could be. That, of course, is an extreme example—in real life, it’s much harder to prove that an obligor is purposefully working to less than potential.

     

    The third area comes up when one party wants to argue that the standard child support guidelines should not apply to his or her child’s particular case. These are typically cases where an obligor has a lot of money and the child has abnormally high expenses, such as when a child has a disability or medical condition. If the custodial parent is unable to work, or can’t work full-time, because of his or her role as the child’s primary caretaker, that strengthens the argument a lawyer could make in this case. (It’s also worth noting that a dependent with a disability can receive child support beyond 18 or high school graduation.)

     

    There could also be a case made if a wealthy obligor remarries, has children with the new spouse, and those children go to private school and receive other privileges compared to children from the first marriage. Could the ex-spouse from that first marriage argue that her children should get access to the same type of education as the children from the second marriage? I think it would be a hill to climb, but there’s enough merit to this argument to at least consider moving forward with a lawsuit.

     

    Which brings me to an important point. You want to make sure that, if you’re going to court over child support, that there’s a legitimate reason to dispute it. While those three categories allow for child support litigation, it’s best to talk an experienced family lawyer about your case to determine if litigation is viable and how best to proceed.

    Value Billing

    This article was written by Hance Law Group principal Larry Hance.

     

    People going into a divorce typically would like to know how much it will cost. For a great number of people, divorce is the most involved legal process they’ll undergo, and there can be some sticker shock on just how expensive it is.

     

    But when a prospective client asks me how much my divorce will cost, the honest answer is, more often than not, “I have no idea.” I can get a sense of what the client wants, what the obstacles might be, and how far apart the client and his or her spouse are from each other on the issues (at least from this client’s perspective). But once a case starts, any number of factors can either complicate the situation and require more billable time, or can bring the couple to a resolution quicker than anyone expected, including who the other party hires as an attorney, how complex the temporary issues turn out to be, and the mental health of the other party.

     

    We offer value billing to our clients in appropriate cases as a way to at least provide some idea of how much the divorce will cost. It’s an alternative to hourly billing that only a small percentage of progressive family lawyers offer their clients, and we provide it as an option for clients where possible.

     

    As our website points out in its page on value billing, “Recognizing that clients are obviously focused on getting a task completed, and would like for it to be done at a reasonable price in a reasonable amount of time, some lawyers have moved to more “value-based” billing. The lawyer and client reach an agreement that the lawyer will perform a certain task for a specific fee which client will pay. If the agreed upon fee “feels fair” to both sides, then it doesn’t matter what the billable hours would have been. Both parties have received the benefit of the bargain they negotiated, and both knew what they would pay and what would be received.”

     

    The concept of value billing hinges on the idea that clients are paying for value, not time. There’s admittedly some risk for both parties, in trying to predict ahead of time how many hours – from lawyers, legal assistants, and any of the specialists we might bring in – it will take to achieve a resolution of the case. It could take less time or more time than we predict, of course, but we factor in what each client is trying to achieve in making a prediction on any one case.

     

    One way that we mitigate that risk is to carefully define the scope of what we’ll do, and offer tiered billing based on phases of the case. If a case can be settled through negotiations without going to court, we would bill at one tier, and if the case requires court, it would be billed at a higher tier. In those cases, the client is incentivized to settle before going to court, and if the client does make the decision to go to court, it’s based on understanding that the extra expense is necessary and worth it. (And, rather than being a nebulous amount dependent in part of what the other legal team does, it’s one fixed price.)

     

    I find that people are generally more optimistic than they should be when they estimate how much their divorce will cost. They might be hopeful of an expedient and amicable divorce, only to find that it doesn’t go as quickly or easily as they hope for once they’re in it. With value billing, a client comes into the divorce knowing how much it will cost, and that can help a client focus on the best course of action to resolve a case, rather than making decisions based on worrying about what will add to the bill.

    Gray Divorces: A Growing Trend

    This article was written by Hance Law Group associate attorney Beverly Via.

     

    In recent years, we have seen first-hand a growing trend, referred to as the “gray divorce” phenomenon, involving couples who are at least 50 years of age. According to a Washington Post article from October 2014, divorce for couples over 50 has doubled since 1990, and one in four divorcing couples now fit this “gray divorce” category.

     

    A number of social factors are contributing to this rise in older couples determining that divorce – rather than carrying on in unhappy marriages – is an option, and for many in this situation, divorce is seen as something that is positive and freeing.

     

    But it also has its challenges. In most “gray divorce” cases, children from the marriage are at least 18 and so issues around custody and parenting time don’t factor in. Yet, financial issues can be more complex, as couples over 50 are more likely to have more assets, including those that can’t be easily liquidated. If one spouse hasn’t worked outside of the home for a number of years, spousal support (more commonly known as alimony) might need to be part of the overall settlement.

     

    Couples who decide to divorce under the collaborative process can bring a financial neutral onto the team, which is an effective option for any divorcing couple who needs to divide assets and debts. Having one shared financial professional encourages a full, honest disclosure of those assets and debts, and the collaborative process allows for a more creative range of options than the courts do.

     

    For instance, if one spouse started a business after the marriage, and the other spouse has the right to a portion of the value of the business, the courts might arrive at “sell the business” as the only option for splitting that asset. But through the collaborative process, the couple could arrive at some alternate form of compensation that leaves both parties satisfied and the business intact. It might involve future earnings, it might involve compensation through other assets in the marital estate – but it’s something that can be assessed and negotiated with more attention than the court might opt to give it.

     

    The creative approach can also help with the question of spousal support that might arise if one spouse has not been working outside the home. The courts may award spousal support in those cases, provided the marriage has reached the ten-year mark, but couples in collaborative negotiations often come up with more mutually-satisfactory solutions than the courts come up with.

     

    Health care costs are another major financial concern in gray divorces. If one spouse had the other on his or her policy linked to a job, the other spouse very possibly would opt for COBRA to extend that policy. But there still might need to be some bridge between when COBRA eligibility runs out and when Medicare kicks in – and health care can make up a significant portion of a household budget.

     

    If a couple doesn’t want to commit to the collaborative process, but wants to avoid court, each party should make sure his or her lawyer understands that intention before starting the process. There are a range of options available that don’t involve court – depending on how close both parties are, they might be able to address their needs through the limited scope services we offer or they might get to a settlement through a mediation session.

     

    The rise in gray divorces indicate that people aren’t as willing to “run out the clock” on their marriages, which reflects a society where people are living longer and are more active than ever as they approach and enjoy retirement. But if couples can avoid acrimony in their divorces – no matter what the age – it makes for a more hopeful beginning to this new, post-divorce chapter.

    Pre-Litigation Mediation

    This article was written by Hance Law Group principal Larry Hance.

     

    Texas is sometimes a state that marches to its own beat, and that’s certainly the case with mediation. Texas came into mediation fairly late in the game, and it was an option in civil cases before it was adopted for family law. As a result, the most common kind of mediation used in family law is a civil litigation model of mediation. In those cases, the husband and wife, along with their lawyers, come to the mediator’s office, sit in separate rooms for the duration of the mediation session, and the mediator goes back and forth – and ideally, by the end of the session, they’ve agreed on a settlement which can then be filed in court to finalize the divorce. This is normally done during litigation, as opposed to prior to litigation.

     

    But there’s another type of mediation that, while not so familiar to Texans, is more the norm for mediations in other states. It’s called pre-litigation mediation, and it typically involves a mediator who meets with the divorcing parties, together, in a series of short sessions to work out a settlement.

     

    We offer pre-litigation mediation as an alternative dispute resolution for divorce, and while it has some similarities to collaborative divorce, there are some key differences that couples should be mindful of in weighing their divorce options.

     

    One of the most important facets to pre-litigation mediation is the role of the mediator. The mediator acts as a true neutral in the case – it’s a conflict of interest for the mediator to act as the legal representative for either of the parties should they opt to go to court, or even to divorce collaboratively. And during the mediation process, the mediator is always neutral, and cannot give legal advice to the parties. The mediator is focused on getting the couple to a resolution, but can’t act as a lawyer for either party – so it’s in the best interest of anyone using mediation to have a lawyer, at the very least, look over the decree prior to formally agreeing to it.

     

    Though some pre-litigation mediations are fairly clear cut, I do advise a number of couples to utilize the experts I’d suggest for collaborative divorces: a mental health professional to help with communication, a child specialist for cases involving children, and a financial professional to help with asset allocation and any necessary valuations. They’re extremely helpful in bringing focus to the mediation, as well as providing expertise on the issues that are typically most difficult to reconcile.

     

    I set the tone for pre-litigation mediations in the same way that I frame collaborative divorces. I begin by asking the parties about their interests and goals, and I remind them of those when negotiations bog down.

     

    I’ve found that mediation is best for fairly cooperative couples. If it’s an acrimonious situation, it can be challenging to work out a settlement in a series of mediation sessions, even if the couple expresses initial commitment to the process. There is the danger of one party feeling like the mediator is siding with the other party, and if there’s considerable tension between the parties going into the mediation, that feeling can be difficult to overcome no matter how prudent the mediator is in his or her dealings with the parties.

     

    When it works well, it’s more streamlined and less expensive than other types of divorce processes. For couples who like what collaborative divorce offers, but want another cost-conscious option to weigh, pre-litigation mediation is a route worth exploring.