What is Mediation - And When Can It Help

With some counties pushing mediation as prerequisite to ever seeing a courtroom, I getting asked more questions about mediation and articles like What is Mediation do a good job of explaining the process. I suggest following the link and reading the whole as well as my excerpts

Divorce mediation is about you and your soon to be ex-spouse deciding your own divorce and what is best for the both of you and most importantly, your children. In mediation, you and your spouse meet with a neutral third party, the mediator, and with their help, you work through the issues you need to resolve so the two of you can end your marriage as amicably and cost effective as possible.
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In mediation, the couple, with the help of the mediator, works out agreements on the above issues. Sometimes agreements come easy, sometimes they take time and a lot of work. When agreements are hard to reach, that is when the mediator intervenes. It is the mediators job to keep the lines of communication open, brainstorm ideas, reality test the couple, teach empathy and assist the couple in their decision making process. Mediators help keep the couple focused on the issues at hand, trying not to get them off track. When divorcing couples get off track and away from the above issues during mediation, arguing, name-calling and bad prior memories are brought up.

I do have a long-standing philosophical problem with mediation. Cases exist where no amount of persuasion will lead to a change of positions. In those cases the need exists for a person to say that this or that will be done by the parties. Those people we call judges. Therein also lies the basic difference between mediation and litigation.

I do have a criticism to make - which may describe more the difference between Indiana and Illinois rather than any error by the writer - of this paragraph:

In 2008, the average mediated case cost $3000 and was settled in 90 days. In turn, the average litigated case in the courts cost $15,000 and took 18 months to settle. Keep in mind, the litigated cases led to more spite and frustration between the divorcing couples, usually leading to a lose/lose situation for both. Not many people walk away from a litigated divorce feeling satisfied. On the other hand, couples who went through mediation felt satisfied with the agreements they had reached and both walked away feeling that they had gotten what they had wanted. Who would you rather have decide what happens with your children and assets after a divorce, you during mediation or attorneys and judges during a divorce in the courts? Who knows more about you, attorneys, judges or you? Why have people who know nothing about you tell you how you are going to live the rest of your life.

My criticisms are:

1. I know Indiana has does not have any statistics on the costs of litigation versus mediation but I cannot think that the average in Illinois greatly higher than Indiana - or what I am billing!
2. Do read this paragraph with the assumption that a lawyer can be done away with if you do mediation. Unless the parties prepare the necessary petitions and waivers, there is still the need for a lawyer.
   

Mediation without a lawyer?

Recently, the wife and I were having a conversation about a friend who had left her husband. She told me that they decided to have a mediator and skip the lawyer.  The idea was to save money.  I recall rolling my eyes and shaking my head.

Which lead me to post a questiion on Twitter - that only got one response and was about the same as my response.

Let me be clear:  in and of itself, mediation is not a bad thing and settlement is never a bad thing. What I am not so sure about is the selling of mediators as an alternative to lawyers.  Let me give an example from TheDivorceHelpClinic.com's Divorce Mediation page:

Divorce Mediation is an alternative to litigation (where attorneys fight one another for what their clients want.) Mediation, on the other hand, is an informal meeting with a neutral mediator and the couple working together cooperatively, calmly and fairly.

Not so very clear but this seems to imply no divorce lawyers are needed.  Which raises the question for me:  who is filing the divorce petition and preparing the Decree of Dissolution?

The mediator cannot unless they have a waiver from the parties of any conflict of interest (and assuming the mediator is a lawyer).  This leaves the task to either the parties or a lawyer.

If the mediator is not a lawyer, then the mediator cannot even advise the parties how to file.  Unauthorized practice of law, see?  For a lawyer-mediator, back to the conflict of interest problem.

If you plan on using a mediator to work out a divorce settlement, that is a good thing.  Just be aware that a dissolution of marriage is a legal proceeding which just means you need to be able to get that mediation agreement before a court.  Make sure you know how this last step will be done.

By the way, I do not think it any great difficulty to find a lawyer who will charge just for the necessary documents.  Just explain to them the need. 

Let me repeat that any settlement is generally a good thing and I would like to point out this paragraph from

TheDivorceHelpClinic.com:

According to the National Conflict Resolution Center, “Research shows that when you compare couples who have mediated their divorce with couples who go through an adversarial divorce, mediating couples are more likely to be satisfied with the process and the result, likely to take less time and spend less money, and are less likely to go back to court later to fight about something.”

New Divorce and Family Law Blogs

Bankruptcy and divorce, two subjects existing closer than will please many is the subject of The Interplay Between Bankruptcy and Divorce Law in Virginia. Not exactly a zinger for a blog name but spot on accurate for its content.  The posts concentrate on Viriginia, naturally.  Which does not mean it lacks value for Indiana - just check its bankruptcy reports against our Seventh Circuit.  (I do not expect many differences but what differences exists will probably be significant.)

I found interesting what differences exist between Indiana and Virginia in its Top Ten Costly Divorce Mistakes to Avoid During a Recession (as well as good points for Hoosiers, too):

1. Adultery may eliminate spousal support in Virginia.

Even if our temporary maintenance equals their spousal support, there is no support for this in our statute.  On the other hand, I think our economy and the closeness of income between parties makes maintenance (temporary or otherwise) difficult to get.  For more on Indiana maintenance go my archived articles.

2. Be aware of formulas and guidelines for determining support in Virginia: child support guidelines are the presumptively correct starting point for support; pendente lite spousal support: w/child – 28/58%, w/o child – 30/50%.

This is true for Indiana, too.  Diverting from our Child Support Guidelines means having a very good reason.

3. Alimony: request it, reserve it, or lose it.

Not got alimony in Indiana but maintenance we do have.  Request a provisional hearing and ask for temporary maintenance and save permanent maintenance for the Final Hearing.  But go back and see my comment to 1.

4. You have 2 years to file for an annulment and you may lose your right by cohabitation after knowledge of the facts.

Looks like annulment may be as hard to get in Virginia as in Indiana.  Cohabitation is also a defense in Indiana.  This did point out to me that there is no explicit statute of limitations for annulment in Indiana under the Indiana Code (and certainly none mentioned in any of the available cases).  I suppose that our general statute of limitations on fraud may apply.  For more about annulment in Indiana, follow this link to the annulment articles archive.

5. Do not delay the filing of a motion to modify support upon a material change in circumstances.

Damned good advice.  This applies everywhere.  Even when there is not a recession.  Do not say that you cannot afford a lawyer - find one that will unbundle services or one that takes payments.  Getting behind in your child support means contempt, which can mean jail.  You figure out which is cheaper - a lawyer or jail time.  For my articles on contempt, go here.  For my atricles on attorney fees go here, and for child support articles follow this link.

6. Judges are hostile to the concept of separating under the same roof in Virginia.

Never seen this problem in Indiana.  Especially locally with our post- General Motors economy, judges can have no problem with two people living together who do not want to be married any longer.

7. A suit for a divorce from bed and board can be filed immediately in the Circuit Court. You may be able to obtain pendente lite relief for temporary support, attorney’s fees and costs, protective orders, temporary custody and child support, exclusive use of the marital residence, or a freeze on assets.

Take out the "from bed and board" and add after Circuit Court "or Superior Court", and  take out "protective orders" and , and you have a good description of what Indiana courts can do.  Protective orders need filing separately here.  I have an arichive of my aticles on our courts and an archive on protective orders.  I put in these links so that more specific information is can be gotten to, please use them to get at this information.

8. Consult with your tax advisor concerning the tax consequences of spousal support, allocation of the dependency exemption, exclusion of gain from sale of marital residence, etc.

Another good idea that applies here as well as Indiana.

9. Be careful about leaving the marital residence without a separation agreement.

I do not think this is as a lethal in Indiana as it appears to be for Virginians.   That any agreement is a good thing, I will not deny.

10. Consider the possibility in your agreement that one spouse may file for bankruptcy relief.

Always, always consider the fact of bankruptcy.   Maybe it is all my years when I did practice consumer bankrutpcy law but I am a bit surprised by lawyers who do not think of bankruptcy.

McLean County Divorce comes from Illinois lawyer, Jon D. McLaughlin, with me having a bit of concern over the two months from his last post.  However, Hoosiers still might learn from his Change of Child Custody and Simple Divorces (we have a better procedure here). I have some quibbles with his Suggestions for Fathers going through a divorce but on the whole, it is a good collection of suggestions for Indiana fathers.  Let us hope that Mr. Mclaughlin continues to publish his blog.

Okay, it is Canadian but Collaborative Practice Canada does a more than adequate job of promoting colllaborative law.  I cannot say that anything specifically applies to Indiana but that has is not quite the point either.  If the general public wants a less adversarial approach to family law cases, then the general public needs to know that an alternative not only exists but why it is preferable.  That said, give a look at Collaborative Law - in the interests of families and children..


 Another family law blog, this time from California's Orange County.  Hence the name being Orange County Family Lawyer Blog. It looks fairly new but the articles are clearly written and succinct.  Still fairly new and may interest those who want to contrast Indiana's courts with another state.

What is an Uncontested Divorce?

Florida Divorce * Child Custody * Domestic Violence Law Lawyer describes what it is in Florida with So What Exactly is a “Florida Uncontested Divorce“?

At a minimum, those issues include:

1. property division, technically called “equitable distribution” of marital assets and debts
2. alimony, technically called spousal support and, if the spouses have children together,
3. parental responsibility (in the sense of decision-making authority) (the term custody is now obsolete in Florida)
4. timesharing (formerly known as “visitation”) and
5. child support.

Okay nothing different with Indiana but I probably would have started here:

But the point is: if one spouse is unwilling to sign a marital settlement agreement (or the desired marital settlement agreement) resolving these issues then, with the two possible but very unusual exceptions cited above, the divorce is not uncontested.

No matter how much the other spouse would like it to be. No matter how unreasonable the refusal to sign may be.

Period. End of story.

Uncontested means agreead upon and agreed upon takes two.

Last week I had a meeting where I tried to explain to a person that an agreement can be arranged at any point:  before filing the dissolution; after filing and before the provisional hearing; or between provisional hearing and Final Hearing.

I also tried to explain that lawyers or a mediator can help in reaching an agreement.  We can be useful - so long as the clients have a meeting of minds on an agreement.

Note to non-lawyers - do not be surprised if your lawyer suggests a settlement.  Question those lawyers who will not attempt to settle a case. 

Alternative to Divorce: A Post-Nuptial Agreement

I read The New Jersey Family Law Blog's If you want to divorce but cannot afford to due to the depressed housing market, then a post-nuptial agreement may be worth considering with some interest. The post suggests post-nuptial agreements as an alternative to divorce. Well, sort of:

"If the economic crisis has put strains on your marriage such that a divorce is likely at some point in the future then consider a post-nuptial agreement while you ride out the current economic crisis. This agreement would allow you to work out the financial terms of any future divorce and at the same time focus the parties on constructive ways of handling money and assets until then.

However, some people will still want to divorce and while money is something that can always be replaced, time cannot. For those that decide to cut their losses and go ahead with a divorce, think carefully about the financial aspects but don't let that deter you if that is what you want to do. Attorneys, financial planners and other professionals are available to offer advice and counsel."

You can find other articles here on post-nuptial agreements by following the link below this post to the post-nuptial agreement archive. Yes, I do this work. I have not had an opportunity to do so outside of a divorce being filed (we call these an uncontested divorce - and I also have articles on the subject on this blog). I may need to rethink what I wrote here about legal separation.

The article has me thinking if we will not see more legal separations if the economy continues its unraveling. I may need to rethink what I wrote in Indiana Alternatives to Divorce: Legal Separation.

Why Get a Lawyer for an Uncontested Divorce?

I have tried to make this point before on this blog (follow the ink below that reads "Uncontested Divorce), but maybe I have not made the points as this post from Divorce and Family Law in Tarrant County, Texas, I Want an Uncontested Divorce:

1. The Good: True uncontested divorces are cheaper and faster than contested ones, by a longshot. They are also less destructive to family relationships, which is very important when kids are involved. Uncontested divorces can be a great way to get what you want, rather than leave the decision up to a judge who doesn't care about you.

2. The Bad: The parties, or one of them, may agree under duress from the spouse. The result is sometimes an unreasonable deal because of pressure, threats, guilt or a desire to save the marriage by being generous in settlement. Obviously, some of the pressure comes from the spouse or other family members, and sometimes it is self imposed. The problem is that once the deal is done, and the situation changes, the deal can't be undone.

3. The Solution: Not surprisingly, the best step is to get professional help. An attorney may be needed, a financial expert might be beneficial and a counselor may help a party make rational decisions. Unless there are no children involved and there's insignificant property and little or no debt, the parties should get help. When there are significant assets or liabilities, there is enough at stake to at least warrant a consultation, and full representation is advised. Spending a little time and money to protect your financial future is a wise decision. A good attorney will ask questions about the issues and agreements when you come in and will follow that with advice on how to reach a settlement. You can save time, money and grief, even with an attorney involved, but be sure you choose carefully. Make sure the attorney's experience and approach match up with how you want to proceed. It's your choice.

Expectations for a Divorce Proceeding

Let’s face it, there is no such thing as an “easy divorce.” This can be one of the most painful times a couple can experience, especially when children are involved. Going through a divorce usually involves arguments over property distribution, the custody of the kids and even who gets the family dog. To ease the agony of this proceeding, educate yourself on your rights as a spouse and/or parent.

The “D” Word
Divorces can generally be categorized as contested or uncontested. An uncontested divorce means just that: there are no contested issues between the parties. In such a circumstance, if the parties can reach an agreement, leaving no contested issues, they can finalize the divorce without every having to go to Court.

Contested divorces, on the other hand, do require the intervention or assistance of the Court to finalize the divorce. Sometimes, the Court’s task will be fairly simple, such as making a disposition of the parties’ debts. Some divorces are complex, involving complex issues, such as custody disputes over minor children, or division of a family owned business. In Indiana, there is a mandatory 60 day waiting period before a divorce can be finalized, commencing on the day the petition for dissolution is filed. In complex divorces, however, it is not uncommon for a divorce proceeding to last a year or more, depending upon the complexity of the issues, and the time needed for trial preparation. In any case, if there are minor children of the marriage, the Court will require that the parties complete a “coping with divorce” class before it will grant the divorce, whether the divorce is contested or not.


Building a New Life

The divorce process can be long and drawn out, and take an emotional and financial toll on both parties.

Starting over can often be an overwhelming feeling. Help is available through local churches, community centers and support groups. Also, by educating yourself on the issues concerning divorce, you can fight for the rights you deserve and begin life anew.


I suggest reading my post Tips for a Better Divorce. Then if you are wanting more information on divorce, follow the "Divorce general" link below to more articles on divorces.

If you need an Indiana lawyer for your divorce case, give me a call.

You Want To Save Money on a Divorce by Getting One Attorney?

Don't even think about it. You are not really saving a dime.

Getting one attorney does not mean that both you of have an attorney. Representing both sides of a divorce is clearly a conflict of interest. Only if the lawyer has both sides sign off on a waiver of the conflict do both sides have a lawyer.

This post follows up on a comment left here. Anonymous described his situation like this:

When doing your property settlement, make sure that you do not trust your ex-spouse's attorney or even county government on any single filing. Verify, verify, verify, verify, verify. My current situation is a case in point on this. As part of my property settlement, I was required to provide proof of ability to refinance. She was to quit claim the property to me. Anyway, I tried some months ago and was turned down on the only FHA program I could afford simply because the quit claim was "too fresh". I was told I had to wait six months.

I wish I could say that was a new story. Too often, I am cleaning up a mess caused by a client who thought they shared a lawyer with their now former spouse. Sometimes the client's desire to pinch pennies causes the mistake, and other times it is caused by a silence on the part of the attorney about his representation of the parties, and other times it has been the persuasiveness of the now former spouse, and often enough it is some combination of the all these.

Now that you know that you should not have one attorney and probably cannot have one attorney, do not be persuaded to do anything else but getting your own attorney.

What if you have? I assume for the next two paragraphs that the divorce is uncontested, that there is an agreement that ends the marriage. If you are not divorced, then get a lawyer to review the agreement for you. Quit being scared of attorney fees. Call some family lawyers in your area or drop me a line, and ask about the fee for reading the property settlement agreement.

If you are divorced, you better expect trouble like that suffered by Anonymous. Be prepared is the Boy Scout motto and it will work for you here. I say, again, get a lawyer to read it over and see what problems there are for you. It may be that the agreement may be set aside or it may not.

How to file for divorce

Assuming you have decided to handle your own uncontested divorce, what do you do after you have prepared your paperwork?

Go to your local courthouse with all the papers (and these depend on if you have children or not) and locate the Clerks Office. At the Clerk's Office, tell them you wish to file a Dissolution of Marriage. You will need to pay the filing fee with cash or a money order payable to the Clerk of Delaware County. (It would be a good idea to call the Clerk's office to find out what is the current cost of filing fee - the Indiana General Assembly keeps changing them).

A Deputy Clerk will give you a case number. You will need to add this number to all of your forms . Make sure you have enough copies for the court with a spare for yourself:

1. 5 copies of the Petition for Dissolution of Marriage,

2. 5 copies of the Appearance Forms,

3. 5 copies of the Waiver of Service of Summons.

All these forms need stamped with the Clerks the stamp. The Deputy Clerk will give you a receipt for the filing fee.

Nothing else needs filed until 60 days after your filing date. Then you will need to file the following:

• Original and three copies of the Property Settlement Agreement;

• Original and three copies of the Waiver of Final Hearing; and

• Original and three copies of the Summary Dissolution Decree.

If you have children of the marriage, you will also need the following:

• An Income Withholding Order;

• Child Support Worksheet; and

• Child Support Set Up Card.

Be sure that the mailing addresses shown on the orders/Decrees are still accurate. You should receive signed copies of the papers in the mail within a few days. If you don't, contact the Court to check the status.

Uncontested Divorce: Comparing Nevada and Indiana

I know of the old reputation of Nevada as a destination for quickie divorces and I have to wonder if that explains what I found on the Ciciliano Law Blog. Indiana makes a big deal about promoting agreements settling divorce cases but Indiana does not specifically recognize a joint divorce petition and still requires the 60 day cooling off period - even if the parties have agreed to everything including the divorce. (See IC 31-15-2-13).

Reading UNCONTESTED DIVORCES shows things are a bit different in Nevada:

...The Joint Petition is the document in which the parties lay out the terms of divorce that they have agreed upon (including all financial and child custody issues). A Decree of Divorce can be submitted to the Judge for signature once the Joint Petition has been filed....

IC 31-15-2-5 does not forbid a Joint Petition, but I have held the opinion that representing both parties in a divorce creates a potential for a conflict of interest.

When I have an uncontested divorce, I prepare the following documents: Petition for Dissolution of Marriage, Waiver of Summons, Waiver of Final Hearing, and the Property Settlement Agreement. My client signs the Petition only, the client's spouse signs the Waiver of Summons, and both parties sign the other documents. I then file all of them with the County Clerk. After the sixty day cooling off period ends, I file a Decree of Dissolution. The Nevada procedure sounds like I can file the Decree as soon as I file the Petition and my other documents.

It would be interesting to know how this works with children. Madison County and other counties have their parents-going-through-divorce seminars. Non-attendance by the parents can result in penalties. On the other hand, delaying the Decree until the seminar is completed makes more sense with uncontested divorces than the sixty day cooling off period,

Collaborative Divorce Knowledge Kit

I am getting older. The older I get the more convinced I am that our family law system is terribly ineffective at dealing with the problems of families.

That statement annoys quite a few of my fellow attorneys and not a few judges. It also confuses potential clients. As I have consistently put it for years, divorce is traumatic enough without lawyers making it more so.

Which bring us to collaborative divorce. I have written before on the subject and those posts can be found in the archives. Mostly importantly, people need to understand collaborative divorce as a tool and not a panacea.

Which leads me to this post from Domestic Diversions Blog:

The International Academy of Collaborative Professionals wants you to discover the collaborative process and whether collaborative divorce is right for you. To that end and for a limited time, the IACP has created a kit that answers many of the common questions about collaborative divorce and has the kit available for download.

I suggest anyone interested check this out soon.

Family Divorce: Healthy Divorce: a myth?

I found this post, Family Divorce: Healthy Divorce: a myth?, at the Family Divorce Blog. Generally speaking, I found the post interesting but other than the post being dated for November 27, 2007, I have a bit of a problem with the following paragraphs:

Tesler: Collaborative divorce is now available in nearly every state in the US, and in many foreign countries. For a referral to collaborative professionals in or near your area - attorneys, coaches, and financial advisors - contact the International Academy of Collaborative Professionals.

Er, I can say that Madison, Tipton, Grant, Delaware, and Henry County have no such formal program. I know there was a seminar in Hamilton County on this subject years ago. What I found at the International Academy of Collaborative Professionals site is one firm in Bloomington. I have said this before on this site and I will repeat it again: usually nothing is gained from an adversarial divorce. Lawyers know this. Clients need to learn it, too. Those exceptions to a confrontational approach prove the rule.

I also want to make clear that the numbers in the following paragraph do not reflect Indiana:

'In my part of the country, a traditional family divorce for a middle class client with a house and two children can run from $30,000 to well over $100,000,' says Tesler, author of 'That’s only for one partner.' Americans now spend well over $4 billion annually for the 1.1 million divorces reported by the National Center for Health Statistics. In the last few years, more than 80,000 people have chosen this process over litigation."

I believe in sensible litigation - the kind where my client's interests are protected without forcing them into bankruptcy. I suggest reading the article at Family Divorce. If you are looking for an attorney in Indiana, please give me a call.

Post-nuptial agreements - new appellate court case

The Indiana Court of Appeals handed down a new opinion on post-nuptial agreements. Remember, post-nuptial agreements are agreements entered into after marriage (and prenuptial agreements are made before marriage).

The new case turns on the issue of modification. The parties agreed on the souring of the marriage, they created an agreement that included a provision about insurance and the beneficiary of that insurance, and then the husband filed for divorce in Indiana. During the divorce, husband requested that the court change the insurance beneficiary from his wife (as in the Agreement) to their adult children. The trial court made this change. The trial judge makes the wrong decision.

The trial court gets reversed because the husband failed to show "'fraud, duress, and other imperfections of consent, . . . or with manifest inequities, particularly those deriving from great disparities in bargaining power....'"

The Court of Appeals provides selections from the Agreement in the opinion and it may be worth checking out for that purpose, too.

The case, and a link to it, is Marie B. Augle n/k/a Marie B. DeLuca v. William H. Augle.

Indiana Uncontested Divorces

Uncontested divorce means you and your spouse have settled all of your differences before filing the divorce petition. This procedure allows you and your spouse to part ways in a more friendly manner than if we let a judge decide all the issues. Judges may not decide to divide things the way you and your spouse may like.

An uncontested divorce allows you and your spouse to avoid the time and stress of appearing in court. One of the documents we prepare at the start of a case is called a Waiver of Final Hearing. That means both sides agree that there is no need for a hearing because all issues have been agreed to by you and your spouse.

A document called a Property Settlement Agreement contains your agreement with your spouse. Another document prepared for you is a Waiver of Summons. This is so that your spouse does not need to have a summons served on them. The Decree will approve the Property Settlement Agreement and include the terms of the Agreement into your Decree. Essentially, your Property Settlement Agreement becomes your Decree of Dissolution of Marriage.

Sixty days after filing the Petition and the other documents, a Decree of Dissolution gets taken to the court for signing by the judge. This ends the case.

It is possible for you and your spouse to do these things on your own. The Indiana Supreme Court has the forms for divorces online. However, these forms are not geared towards an uncontested divorce as outlined above.

Should you hire an attorney for an uncontested divorce? Here are the situations where I think you must get an attorney:

1. There are minor children with child support and Parenting Time issues.
2. You have real estate.
3. There are pensions or other retirement issues.
4. Any and all combinations of the above.

Why should you hire an attorney? Putting the matter bluntly - you can pay a little now or pay a lot later when something you did needs fixed. Err with a deed in real estate and the costs will surprise you. Some courts will not approve a Decree unless the child support issues are dealt with properly. Financial prudence is a good thing, but being penny wise often leads to being pound foolish. I suggest that you take a look at my fees for uncontested divorces here.