Q&A

Divorce

Where can I go to find out my state’s specific divorce laws?

Divorce laws vary greatly from state to state. You can find a general overview of individual states’ divorce laws basics, such as residency and filing requirements and reinstatement of former surnames here: Divorce Law Basics by State

What is a Marital Settlement Agreement?

A Marital Settlement Agreement is a document describing the terms of a divorce. It is negotiated and written by the divorcing parties or their planners, but becomes a court mandate when accepted by a judge. These agreements can cover a wide variety of topics; including plans for children, disposition of assets, division of debt, and details of spousal support.

Marital Settlement Agreements are not required, but filing one may provide a number of benefits:

  • The agreement can greatly reduce uncertainty for both parties.
  • The spouses may not have to go to court. If the agreement covers all the material elements of the divorce and is written appropriately, a judge may honor the agreement.
  • The agreement may speed legal settlement as it can provide all necessary details and demonstrate that the parties have considered all key aspects of their divorce.
  • The document can specify behavioral aspects of the agreement that go beyond simple disposition of assets or responsibility.
  • Having created it themselves, the spouses may feel greater investment and satisfaction in the agreement than they would in a legal order.

Generally, a Marital Settlement Agreement is created before the divorce is brought before a court and accepted at the final judgement. It is possible that the agreement could be subject to legal scrutiny prior to being ratified by a judge. This is particularly the case where a spouse is receiving government assistance.

Custody

What are the types of child custody?

While the specific details of custody arrangements vary by state, they fall into some standard classes based on what responsibility they entail and whether it is shared by both parents. Custody arrangements that describe who has responsibility to make decisions for the child is called Legal Custody. Arrangements that describe who the child lives with on a regular basis is called Physical Custody. Custody arrangements are further described by whether a single parent is granted custody (Sole Custody) or both parents share custody (Joint Custody) of the child.

What is joint custody?

There are as many different joint custody arrangements as there are families living with them, but they do share certain similarities. Parents usually work out a schedule that best fits their circumstances. These arrangements have to consider the parents’ location, housing, and careers, in addition to the children’s unique needs. When parents voluntarily make these arrangements, they will often be specific in a Marital Settlement Agreement. When they are unable to agree, it is not unusual for the schedule to be imposed by a court.

Joint custody schedules can follow a variety of patterns. A common schedule involves spending weekdays with one parent and weekends with another. Other patterns may involve spending alternating months, half year periods, or whole years with each parent. It is common for these schedules to change as children get older and their need for stability and routine changes.

What is “Bird’s Nest Custody”?

“Nesting” or “Bird’s Nest Custody” is a term for a joint custody arrangement where parents alternate living in a family home and caring for their children. While one parent stays in the family home the other will spend their time in alternate housing.

What is legal custody?

Parents with legal custody have the right and responsibility to make decisions about children’s upbringing. This includes a wide variety of concerns, including medical care and education. In most jurisdictions, courts default to awarding joint legal custody. In these circumstances parents share in decisions about their children, regardless of which parent the child is living with. Parents with joint legal custody are obligated to communicate with one another and cooperate in making decisions.

What are the pros and cons of joint custody?

Joint custody offers a number of advantages for parents and children. Sharing responsibility for childcare helps alleviate the burden on each parent and assures that children have continued contact with both parents. Most courts consider this best for children’s well-being and will default to awarding some form of joint custody. In many ways, children with multiple homes has become the “new normal” in modern society.

However, there are a number of disadvantages to joint arrangements. They don’t work well in situations where parents display significant animosity towards one another. Making important decisions about childcare, which is a shared task under joint legal custody, is difficult for parents who get along well. Divorce rarely makes this easier. There is a burden to shuttling children about for joint physical custody arrangements even when parents cooperate well. Of course, animosity exacerbates this as well. Joint physical custody can also be expensive, as it generally involves maintaining two homes for children.

What is sole custody?

In some cases, one parent is granted sole physical and/or legal custody of children. This is particularly common when a court deems one parent to be unfit for reasons such as mental illness, substance abuse, or a history of violence. In other cases, one parent may waive the right to joint custody.

Outside of these cases, it is becoming less common for courts to award sole custody. The tendency toward granting joint custody serves to protect the best interests of the children affected by divorce. In many cases, sole physical custody may be granted along with joint legal custody. In these cases the noncustodial parent will usually have a generous visitation schedule and be actively involved in making decisions about the child’s upbringing. When parents sharing legal custody have difficulty agreeing on issues of importance to the child, a court may impose an agreement.

What is physical custody?

A parent with physical custody has the right to have a child live with him or her. Some jurisdictions grant joint physical custody, where children spend significant periods with both parents. This is usually reserved for situations where the parents live close to one another as it is otherwise difficult for children to maintain a regular schedule. More commonly, one parent is granted sole or primary physical custody. The other parent, generally referred to as the noncustodial parent, may have some sort of visitation rights.

Mediation

What is mediation?

Mediation is a process whereby a divorcing couple hires an independent third-party to assist them in communicating with one another for the purpose of creating an agreement regarding their divorce. It is a collaborative process driven by both spouses’ interest in ending their marriage as amicably and cost effectively as possible. Decisions resulting from mediation, generally in the form of a Marriage Settlement Agreement, may cover every issue surrounding the dissolution of the marriage.

There are two broad types of mediation – Private and Court-Ordered. Private mediation is voluntary and generally covers every aspect of the divorce. Court-ordered mediation, on the other hand, is a mandatory aspect of the legal process for divorce in certain jurisdictions and usually limits itself to issues involving children. Both types involve the mediator using techniques from the realm of counseling or coaching to foster communication and agreement, but leave final decisions to the divorcing couple. As a result, mediation can fail to achieve its goals if the parties are unable to come to an agreement.

Mediation is favored by many divorce professionals because it can be faster and cost less than hostile litigation. It can have less impact on the well-being of children and the spouses themselves, allow for a more satisfactory agreement regarding property or financial matters, and set the stage for future cooperation.

Why would we choose mediation?

Mediation can be simpler, less expensive, less hostile, and more satisfying than other ways to organize the end of a marriage. A mediator provides the divorcing couple with professional assistance in communicating their wishes, usually with the goal of creating a Marriage Settlement Agreement. Generally each party will be receiving additional advice from financial and/or mental health professionals. Private mediation is confidential and can speed the entire divorce process.

In mediation, the spouses retain control of the final decision, creating a greater sense of involvement and setting the stage for future collaboration on issues like childcare and dissolution of financial interests. Divorcing couples who communicate reasonably well and wish to resolve their divorce through a collaborative agreement may choose to leverage mediation. Other professionals, such as experts in child well-being or divorce financial planners may recommend mediation for certain parties.

How does the mediation process work?

Mediation is not a completely standardized process and will differ somewhat by practitioner and situation. The process focuses on promoting communication between the divorcing parties. It shares certain characteristics with therapy or counseling, but has a different goal. Some mediators prefer to meet with each spouse separately, whereas others will always have group sessions. It is a good idea to ask about the nature of the process when seeking referrals for a mediator. It is also important to discuss expectations with the mediator prior to beginning.

The goal of mediation will generally be the creation of a Marital Settlement Agreement or similar outcome. In every case, the mediator will act as a neutral third-party. A mediator does not work for one spouse more than another. While the mediator will seek to hold each person responsible for commitments made during the process, they will leave all final decisions to the divorcing couple.

Is a mediation better than using an attorney?

This is highly dependent on the circumstances. A successful mediation will almost always result in a better outcome than litigation. The process is generally faster, less expensive, and results in a better ongoing relationship between the parties. However, there are some situations that make the mediation process undesirable or unlikely to succeed.

In some cases, the personal situations of one or both spouse precludes successful mediation. This includes circumstances involving violent behavior, substance abuse, mental illness, or simple unwillingness to participate in the process. Mediation requires the active cooperation of both parties to be successful, even when court-ordered.

It’s also important to note that mediation doesn’t preclude the involvement of a lawyer. Many divorcing couples hire counsel on a limited basis to advise them outside of the mediation and/or to review the completeness of any agreements that result from the process.

How long does mediation take?

The time taken for divorcing parties to come to an agreement through mediation may vary significantly. It is possible for the process to be completed in a single session, but it is more likely that mediation will be spread across multiple sessions. A time constraint may be agreed upon at the beginning of the process.

Most estimates suggest that mediation is dramatically faster than litigation, but this is not a certainty. Additionally, while it speeds the last stages of divorce significantly, coming to an agreement through private mediation does not complete the divorce process or create a final decree.

How does court-ordered mediation differ from private mediation?

Beyond the simple fact that private mediation is completely voluntary whereas court-ordered mediation is mandated by a judge, there are a number of differences between the two. In general, court-ordered mediation focuses on custody issues and visitation rights. In some jurisdictions it is mandatory when these issues are at stake. Private mediation will include financial matters and division of property along with these issues. Whereas private mediation is confidential, the details of court-ordered mediation will be reported to the court. Additionally, court-ordered mediation is sometimes provided free of charge whereas private mediation involves an hourly or per session fee.

How does mediation differ from arbitration?

In mediation, the spouses ask a third-party to organize and direct their communication, but they retain the responsibility to make a final decisions. In arbitration, the spouses give the third-party the power to make those decisions. Both mediators and arbitrators are neutral parties working for both spouses to help with their divorce, but they are charged with different tasks and can produce different results. Mediation is a process where each side retains control, but it can fail to produce a final outcome if the parties don’t come to an agreement. Once entered into, arbitration will come to an enforceable conclusion.

How much will mediation cost?

Mediation will almost always be less costly than adversarial litigation, but it’s actual cost may vary significantly. Mediators generally charge an hourly or per session fee. Depending on their reputation and where they practice, this fee may be greater than $100/hour. Since each divorce is unique, the total time or number of sessions will vary as well.

Community mediation services offering reduced cost for couples in need exist in some areas. These services are often preferred for court ordered mediations.

How do we find a good mediator?

The best way to find a mediator is through personal referral. The field of divorce mediation is fairly new and some research is often required to locate a good mediator. Divorce planners and other professionals specializing in assisting with life transitions can also be a source of referral.

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