Guest attorney Carmina K. Tessitore specializes in family law and complex civil litigation. She’s an experienced divorce and family mediator, and is also a member of the Rocket Lawyer On Call® network.
It’s a long and difficult road leading up to the decision to divorce, but once you’ve decided, you’ll need a detailed plan to help you move on to the next chapter of your life in the smoothest way possible.
Mediation can help.
The goal of mediation is to reach an agreement that works for your life—without spending your children’s college fund on costs and attorney fees, or spend significant time and stress in court.
You’ll both have to make a lot of decisions during the mediation process, so here are five tips to help you and your spouse prepare.
1. Agree to mediate
Divorce mediation is voluntary in most states. The only way you can put all issues on the table is to first agree to come to the table in good faith.
Does that mean you and your spouse have to be buddy-buddy in order to mediate effectively? No. But it does mean that you should have a meaningful conversation about it.
Go over the pros and cons of mediation, as opposed to other methods. Whether it’s in person at a coffee shop, over the phone, via text messages, or through email, the first step is to agree to participate wholeheartedly. Strong-arming your spouse might get him or her to the table, but the mediation won’t be effective and you’ll end up wasting time and money.
Both spouses have to want to be there.
In those initial conversations, you’ll also want to talk about logistics. Will you split the fees? If your mediator won’t help you with the necessary court filings, who will handle them? What dates and times can you commit to the sessions? Deciding at the start will help later.
2. Do your homework
Once you’ve decided to mediate, you have to get organized. The mediator can’t help you figure out what to do with what you have if you don’t know what you have.
To ensure you cover everything, create a master list of all your assets and possessions—regardless of whether an item is thought to be yours or your spouse’s. The master list should include all real property (house, rental properties, vacation homes), personal property (books, DVDs, furniture, artwork, jewelry), vehicles (including boats, motorcycles, ATVs), bank accounts (joint and separate, checking, savings), credit cards, retirement accounts, life insurance policies, annuities, stocks and other financial products. Account for everything you own.
You’ll also want to gather records for all income sources: paystubs, self-employment profit and loss statements, pension disbursements, social security, alimony and child support payments received. As for expenses, you’ll want to list your recurring expenses as well as ongoing liabilities, so that all mortgage payments, car loans, health insurance costs, food, utilities, student loans, credit card payments, etc. are known.
Most state courts require you to submit a financial affidavit during the dissolution process. Be sure to check your local rules or consult with an attorney. It’s paramount to complete your financial affidavit accurately, as that information can be held against you later. Creating a rough draft early in the information-gathering process will ensure that your final version will be error-free. It also serves as a roadmap of the financial factors to cover during mediation.
3. Set goals
Once you know what you have, the next step is to figure out what you want to do with it.
This process can sometimes be difficult. You’ll need to spend considerable time trying to determine what’s truly important to you, and what you can live without. Making lists here will help as well.
Just like in traditional negotiations, you’ll need to figure out your range of acceptable terms—from everything you hope to get and the things you absolutely will not walk away without. In between those two extremes are variables that can shift during the negotiations. Decide on your bottom-line goals.
If you have children, make sure you keep the parental access decisions separate from the financial decisions, and do not use one to influence your position on the other. People sometimes try to use custody or visitation wants in exchange for financial wants, whether or not it’s in the child’s best interest.
Also, draft your budget as it is now, and also a projection of what your budget will look like post-divorce. This will help you get a sense of your current financial picture and what you’ll need going forward.
4. Think about your kids
Children are resilient, but divorce is hard on them. You can help your children cope by minimizing the negative impact.
Regardless of your children’s ages, you need to communicate about what’s happening, since it affects their lives too. Agree to talk to your kids together. Agree on how it will be done, where it will be done, and what you will say. Present a united front and try to answer their questions as well as possible, without divulging unnecessary adult information. Kids are smart, and they probably already know something’s up. They deserve to hear that their parents will continue to love and support them and that everything will be ok.
Remember that although your marriage is dissolving, your role as parents will continue. Be patient with your children throughout the process, as their emotional reactions will vary. Do your best to provide a stable, positive and loving environment, and together explain whenever a change in routine or living arrangement is to occur.
Do not disparage the other parent or talk about adult business within earshot of your children. You have to find a way to co-parent that supports and serves your kids’ best interests.
When discussing issues concerning custody parental access, think about where your kids will spend most of their time: where they go to school, where they take dance and karate and other extra-curricular activities. Think about whether they have any special needs and how you’ll care for them, how you’ll cover any private school or college costs, and where they’ll spend birthdays, holidays, and special occasions.
Remember that even though your children may be small today, as they grow up your roles as parents will change. You may have to consult with each other on important life decisions such as medical needs, or see each other at milestones like graduations, weddings, and the birth of your grandchildren. Learning to effectively co-parent early on will help you years down the road.
Most states require parents in divorce, custody and visitation matters to attend co-parenting education courses prior to a court judgment. Check your local rules or consult with an attorney.
Trained family mediators can help you build communication and conflict resolution skills during their sessions so that post-mediation, you can co-parent effectively in the future.
5. Research mediators before you hire
Did you know not every person who holds him/herself out to be a mediator has been trained in mediation?
Virtually anyone can hang out their shingle, take your money, and hear about the intimate and confidential details of your life—without any mediation training whatsoever. Many states have no laws, mandates, or regulations in place to monitor mediators or hold them accountable.
How can this be? Maybe it’s because mediation has only recently gained real traction.
Mediation as an alternative to litigation or other forms of dispute resolution has gained tremendous popularity over the last decade, but until then it was sort of taboo.
You see, the legal arena was inherently adversarial in nature. The view was that if one party proposed mediation or another form of dispute resolution, they were admitting that their position was weaker and were afraid they might lose in court. So people avoided bringing it up as an option unless a judge suggested the two sides talk.
We’ve come a long way since then. Over time people have recognized the many benefits of mediation, and it’s common to consider alternative forms of dispute before filing of a lawsuit.
It’s also likely that the unstable economy has contributed to mediation’s growth as well. Many people struggle to afford an attorney, and some end up representing themselves or not pursuing their legal needs at all.
Mediation offers a perfectly balanced alternative: it’s affordable, confidential, and achieves results.
With demand for mediation growing, more and more people are offering mediation services, but regulations have not caught up. So, buyer beware. Don’t just rely on whether a prospective mediator has a J.D., a Ph.D., an LLM—or any number of other alphabet soup credentials after his or her name.
Ask questions such as:
- Have you completed a basic mediation course? Advanced courses in family mediation? How many hours of training were required?
- Are you certified in basic mediation, family mediation, and/or any other areas?
- What firm, agency, or organization is your certification from? Ask to see a copy of the mediation certificate(s).
- Did your training include an apprenticeship or co-mediation period?
- How many cases have you mediated, and in what kind?
Divorce is never easy, even with mediation. But the more prepared you are, the more productive your mediation will be. Remember to stay flexible during the process. You’ll be surprised by how often what you thought you wanted early on changes over time.