Divorce can be a disorienting experience.
To help you navigate the mediation process, we have created this road map to follow, step by step, along with worksheets and resources so you can do much of the work on your own.
Mediation sessions are designed to provide a safe environment to ask questions and negotiate a divorce agreement. You can make the most of your sessions by learning on your own and, if you are comfortable doing so, discussing some of the issues with your spouse in advance.
The following steps are those we suggest as a guideline for the mediation process:
Step 1: Get Ready
When you have decided to start, we will send you our confidential Intake Form and an Agreement to Mediate. To make the most of your first mediation session, we ask that each of you complete and return the Intake Form. We will also send you a copy of the Agreement to Mediate which we can review and sign at our first session.
Step 2: Kids
If you have children at home, this is where we usually begin. No children, or grown children? Move on to Step Three.
In this step, we talk about child custody (decision making), parenting time and child support. We will go over all of this at our session, but you can make the session more productive if you review the following:
Step 3: Spousal Maintenance
We will discuss whether one of you will pay maintenance (alimony) to the other, how much that will be, and for how long. Here are some resources:
Step 4: What You Own and What You Owe
We will talk about "equitable distribution" - how to divide up property in divorce. This includes real estate, stocks and other investments, retirement accounts (401k, IRA, etc.), pensions, and personal property. We will also talk about how to handle debts. This is one of the places where Family Law Software will be very useful. Here is some information about what equitable distribution is and how it works in divorce:
Step 5: Budgeting and Planning
Our process is leading to negotiating your divorce agreement. Before committing to anything that may have been discussed, or even tentatively agreed, you need to be certain that it all fits with your future budget. If you have input information into Family Law Software, we can generate detailed budgets.
Step 6: Negotiation
This is the crucial step where we put everything together. In mediation, you can negotiate an agreement that works for you as opposed to one dictated by a court. Child Support, Maintenance and rules regarding equitable distribution are important guide posts but it is up to you to negotiate a deal you and your spouse can live with. At this point, many people find it valuable to bring on a review attorney to coach them, as well as to review the eventual agreement. Once you have negotiated the important terms, we draft the Settlement Agreement.
Step 7: Settlement Agreement
Once most of the major deal points are negotiated, we draft the Settlement Agreement. This can take the form of a Separation Agreement (if you are getting separated now and divorced later), or a Settlement Agreement (if you are getting divorced now), or, in New Jersey, a Marital Settlement Agreement. Whatever the form, the issues are the same. Once we send you the first draft, we recommend that you review the agreement carefully. If you have a review attorney, you should ask for them to review and give you comments. We normally schedule a mediation session to review the agreement and negotiate any final changes.
Step 8:Divorce Papers
Even if your divorce has not been litigated, the papers need to be filed as if it were. One of you needs to be the "plaintiff" and the other the "defendant". It doesn't make any substantive difference, but some people prefer being one or the other. The divorce papers are far less substantive than the Settlement Agreement, but should still be reviewed carefully. If we draft and file these papers for you, we are not functioning as your lawyer and are still not "representing" either of you. In New York, we customarily file these papers for our mediation clients. In New Jersey, the custom and practice is that mediators do not file divorce papers. One of your review attorneys can do the filing or we can refer you to a law firm which can do the filing at reasonable fee.