The choice between using a mediator or an attorney isn’t always easy – a consultation with each can give the client some basic information of what to expect. The use of mediators has increased in recent years as people are looking for a more peaceful way to divorce. I have a mediation certificate as well as a law license, so I have knowledge of both and can describe the different processes.
In New York, divorce was traditionally a grounds state, requiring a reason for the split. In 2010, however, New York added a new ground irretrievable breakdown of the marriage, essentially a no-fault divorce. This way, no one has to be the bad spouse. Plaintiff and Defendant positions are still required, but no one has to be blamed for the end of the marriage.
Whether using a mediator or attorneys, the Plaintiff has to file an action in the Supreme Court of the County and the Defendant must be served with the action. The Plaintiff usually files in a County where one of the parties’ lives. If the defendant has already hired an attorney, the attorney can accept service on the behalf of their client. Otherwise, a process server needs to be utilized.
If a client decides upon a mediation, the hired mediator can help the divorcing couple come up with solutions to issues of custody, support and equitable distribution. The mediator does not represent either party. I believe a better result will be had from a mediator who has been trained in mediation and also has knowledge of New York divorce law. This is important so that any agreement reached complies with the law and can actually be enforced. Should the parties be unable to reach an agreement, the mediator cannot continue with either side. If an agreement is reached, then each party should have their own attorney review the agreement. Minor changes can be made before the final divorce papers can be drafted, executed and filed with the court.
By contrast, the parties can each hire an attorney and still have a fairly amicable divorce. Often, the parties will have a meeting together with their respective attorneys to discuss an agreement. Divorce attorneys call these types of meetings four ways because there are four people at the meeting. Frequently the parties will exchange some financial information prior to or during the meeting in the form of a document called a statement of net worth. The document details each of the parties’ income, debt, assets and liabilities. This ensures that the parties are making decisions based on facts about each of their financial situations. The attorneys will base their positions on the facts of the case and the financial disclosure and how it might be decided if it went to trial. By negotiating an agreement based on the likely trial result, the parties can be spared the time and expense of having a trial. Moreover, important issues such as child custody and visitation will be decided by the parties rather than a Judge. The parties are in a better position to make decisions about their children that they will feel comfortable with than having a stranger making those decisions. Should an oral agreement be reached at the meeting, typically one attorney drafts the agreement and the other attorney drafts the final divorce papers such as the findings of fact and conclusions of law and the divorce judgment itself. The papers together with the agreement are then submitted to the court where a judge eventually signs the judgment.
In cases involving extremely litigious parties, they would each benefit by having an experienced matrimonial attorney on their side. That being said, there are many cases that start out heavily litigated with each side filing motions and wind up settling because the parties realize after several months or years of fighting it out in court that they are spending a fortune and they would be better off compromising.