Legal Separation Mediation: What Is It?
In this way, legal separation mediation is similar to divorce mediation – allowing you and your spouse to negotiate and resolve complex matters of marital assumptions without the need for protracted and highly adversarial legal actions. However, while the mediation process leads most couples to the dissolution of their marriage, legal separation does not. Therefore, separating couples often engage in the mediation process hoping to create legally enforceable agreements that will govern their lives until divorce becomes necessary or their relationship is reconciled. While many couples find that mediation ultimately improves the way they communicate with one another, this is often particularly crucial for separating couples. Because a "trial separation" does not dissolve a marriage, "trial separation mediation" is frequently employed to help couples grow accustomed to their new lives and to help them decide if and when divorce is a possibility . For those who have committed themselves to the possibility of saving their marriage, separation mediation can be extremely beneficial. Every separating spouse will find themselves times when emotions run high and the thought of communicating with their spouse in any capacity seems impossible. While lawyers and judges only become involved in the divorce process itself, separation mediators are able to assist separating couples in communicating effectively through weekends, holidays and even vacations. Adding to legal separation mediation’s overall benefits, it is completed and enforced according to a couple’s timetable – rather than according to that of a court. This means that separating couples can take the time they need to process their changing lives before enacting their pre-existing agreements.
Mediation during Legal Separation: Benefits
Mediation is quick and effective in comparison to how cases are handled in a court. Mediation allows a couple to make decisions before heading to court. Maintaining some control gives couples more confidence in the final outcome. Because, ultimately, you have the power to make decisions as a couple and you do the work with guidance. You’re creating your own destiny in a way that creates a win-win situation. Also, mediation is quicker because it is empowered by the couple, while decisions that are made in court are by a judge, who doesn’t know the family and its needs at all. Again, you’re doing the work and empowering yourself as a couple to arrive at a settlement. Plus, unlike court, mediation can be completed in one session with time for a short break in the middle. Otherwise, mediation is done in three 1-hour sessions to create a complete marital settlement agreement. Plus, the cost of having an attorney represent each party as you face mediation is much higher than the flat fee charged for legal separation mediation. There are added costs for the attorneys if you go through litigation or invite the attorneys to mediation. Bottom line, if you are empowered with control over reaching a workable separation agreement in mediation, then you don’t need representation by an attorney. It is simply not needed. Finally, mediation is a confidential environment when compared to the secrecy of a court proceeding. You can keep the details private and keep legal fees down. Emotional fees remain lower when mediation precedes divorce. A litigious action, such as a long-winded legal battle in court, will only increase everything from mental capacity to emotional levels. You’ll feel drained in many ways.
The Ins and Outs of the Mediation Process
The mediation process is not very well known. Most people have heard of it, and if they have any knowledge at all, they think it is a ‘sit down’, ‘go around the table, or offer your opinions’ type process. So, I thought I’d discuss the process here so that you understand it better. The first step is to talk to your attorney about referring the matter to mediation. Different attorneys have different experiences with the mediation process, thus you need to find one that has positive experience with it. After you get the referral to a mediator, you will call them up, and generally, they will have a phone consultation with you. You can google "mediators in [your area]", or "mediators to do a legal separation near me", and it will give you a ton of information and contact information. After the mediator determines they want to take your case, they will send you an intake package (homework). You fill out their paperwork, and then wait for them to call you back. Once the mediator has received the intake papers, and has spoken to both parties, they will set up a session (or sessions) to talk over the issues. Often, it is 3-4 sessions, but that is not specifically set in stone. Many times, if you are able to get to an agreement quickly, that is what happens. If you are still unable to reach an agreement, it is possible for you to have to have as many sessions as necessary to come to a conclusion. One of the most important things to keep in mind is that the mediator is neutral and cannot give you any legal advice. For example, if you say that you want to settle that dispute over son’s braces. The mediator cannot say, "yes" or "no", to whether or not that is a good idea. The mediator will instead focus on making sure that the parties are communicating, and have a plan moving forward. They have the ability to answer questions about the process, and about stipulations, but they cannot give you advice, or even legally tell you that you should do something. After a number of sessions, and a plan has been made, the mediator will draft an amicable, and balanced separation agreement. Once the separation agreement is all signed, the mediator can either file the signed Divorce Decree, or end up just sending you the paperwork that you can file yourselves. It’s extremely easy to file a legal separation in Wisconsin, as opposed to the more complicated divorce.
Finding the Best Mediator
A critical component of the legal separation process is the decision to mediate the matter. While couples can attempt to mediate their separation agreement independently, it is usually advisable to obtain the help of a third party mediator. Mediation can bring order to your otherwise tumultuous separation process. A couple with minor children should consider mediation to provide for their needs via a child support and custody agreement.
The answer to when should a couple hire a mediator is not an easy decision to make. The decision to use a mediator is not to be made hastily and there are many issues to consider. The first thing to consider is who you trust to help you through the process. The mediator you choose is not an attorney and cannot give you legal advice. Since the mediator is trying to get the parties to work together, it is best if the parties trust the mediator.
The next thing to consider is whether you have the right mediator for your particular situation. Couples with complex assets such as business, real estate, and investments may need a mediator with the financial know how to sort through the assets and maybe even divide them in a way that neither party feels like they got the short end of the stick. As financial advisors are usually the professionals to call upon to divide complex assets in a marriage, so it might be helpful to consider having an accountant or other financial advisor to help with the separation.
Family dynamics and age of the children are also important issues to consider before hiring a mediator. A mediator should have years of experience handling family law matters and a proven track record with clients who share similar family situations. A mediator may have the experience with custody issues and family structure of younger families with small children, but not with a blended family where the children are away at college. One family may need a more therapist type of mediator while another may prefer a lawyer type, both who will see marriage as irretrievably broken.
One thing which may impact your choice of mediator is whether you want to keep your family law confidential, or want to share your entire story with the world. With some judges, the very act of filing for divorce or separation is like ringing the bell, a loud signal that your family’s problems will become public fodder. So, you may want to find a mediator that can keep your issues between you and the mediator.
Potential Topics To Discuss In Separation Mediation
Both spouses must consent to be legally separated. A person may file for separation or legal separation during the pendency of a divorce. This person may be the Plaintiff or the Defendant. The spouse who desires to obtain the divorce may file for separation to prevent the other spouse from dissipating any assets. In Pennsylvania there is an automatic protection of assets during the pendency of a divorce by statute. Some of the issues that may be addressed by a mediator during the separation period are as follows:
Child Custody: Legal and physical custody issues.
Child Support: A mediator may draft a Child Support Agreement that can be filed with the Domestic Relations Section.
Division of Assets including:
a. Marital Home: Where will the parties live and what will be the amount of the mortgage payment , who will pay the mortgage, real estate taxes, and utilities.
b. Investments, retirement funds, and other monetary assets or accounts that can be easily divided.
c. Pensions
d. Vehicles
Spousal Support: A spousal support agreement may be drafted by the mediator to assist the family with cash flow needs.
Payment of debt, bills and expenses: The payment of expenses during the separation period will be addressed at this time.
Find a Separation Mediator with Experience
When it comes to hiring a mediator for legal separation in Pennsylvania, it is essential to choose someone who has experience mediating matters that are similar to your own. This is a highly sensitive time for both you and your spouse, and having a mentor will help.
Tips For Preparing For Legal Separation Mediation
Going through legal separation mediation can be a significant step toward establishing cooperative arrangements between you and your spouse, while also planning for a smooth transition into life after separation. However, when preparing for mediation, it is important to understand what to expect. In legal terms, the process of mediation refers to all of the formal and informal communications between you and your spouse during legal proceedings, including questions that might come up about your financial situation and creating a plan for moving forward. Legal separation mediation discussions are legally binding once they are filed with the court, meaning you can’t suddenly change your mind about something you agreed to and try to convince the court to change your custody terms or asset division results.
During legal separation mediation, you and your spouse are expected to answer questions and understand any issues that may be in play as you attempt to work out a plan for your separation. To prepare for this process, go over the following list of tips to establish clear objectives and mentally prepare for the work ahead.
In addition to getting a clear idea of your priorities and personal needs for the next chapter in your life, you need to get organized – and fast! Look through your bank statements and paperwork so you have all of the information you need in one place. The following is a list of basic documents you may need to view before your first legal separation mediation meeting:
Being mentally and physically prepared for legal separation mediation increases the chances you will successfully control your own divorce process. Approach this process as a constructive discussion about how to move forward with the next chapter of your life. Going into the sessions with a workmanlike attitude, rather than a combative one, makes it easier for you and your spouse to understand where you both stand.
When Mediation Is Not The Right Option
While mediation is often the preferred mechanism for resolving issues of separation, it may not be appropriate in every situation. It is not likely to be successful or effective if:
• there has been domestic violence or abuse; or
• a party has a severe substance abuse problem or has a limited understanding of their role within a marriage.
In these circumstances , a mediator is not likely to be able to build the trust and respect necessary to engage with both parties in an effective manner. Still, should both parties have recognized issues such as substance abuse, whether the issue is yours or that of your spouse, we strongly recommend contacting an attorney experienced in family law to assist you in your decision-making process.