Divorce does not have to be a long, drawn out, courtroom battle. In fact, many couples opt to avoid the drama, cost, and emotional stress of a court-based divorce process by pursuing either mediation or a collaborative divorce.
These out-of-court options for divorce in New York are excellent options for nearly every couple looking to separate. This is true even if you and your spouse are not very amicable because, for these options to work, the main item you need to agree upon is that you both want to keep control over what happens to your children; rather than giving up control to a judge in a court based process.
In addition to affording the parents the ability to continue making decisions about what is best for their children, mediation and collaborative divorce allow parents the ability to dissolve their marriage, without suffering through the stress, significant cost, and emotional drama tied to a court-based divorce.
Mediation and Collaborative Divorce: An Overview
In a nutshell, mediation and collaborative divorce are both out-of-court divorce options designed to help couples negotiate a settlement without the interference of a judge.
During mediation, couples sit down with a third-party individual (called a “mediator”), who sits as a neutral, and assists the spouses in discussing and resolving the important issues in their divorce. These proceedings are confidential, and non-binding, meaning, that if it fails, nothing can be used against you in court at a later date.
Collaborative divorce is very similar to this format as it is an out-of-court process designed to help spouses resolve their divorce without heading to the courtroom. It differs from mediation in that, in collaborative divorce, the parents each retain their own attorney to help guide them through the process.
Mediation: The Basics
Mediation is a very popular option for many couples. In mediation, the parents hire one mediator who meets with the spouses, jointly, to help them reach resolutions on the important issues in the marriage. The mediator may be an attorney or they may be a non-attorney who has received special training in New York divorce laws and alternative dispute resolution. The parents attend a series of mediation sessions with the mediator where they go issue by issue and work to settle all matters associated with their marriage.
Right to Legal Counsel
During the mediation process, the parents may choose to hire their own attorney – who could provide them independent legal advice – or they may forgo an attorney. If a parent chooses to hire an attorney, the attorney would not attend mediation sessions unless all persons involved consent to that arrangement. Instead, the attorney and parent would meet individually, either before or after each session, to discuss the issues, status of negotiations, and help the parents create a plan for the next mediation session. The attorney would also answer any questions the parent has about the law and their options; with the goal of helping the parent feel more comfortable attending the mediation session and advocating for themselves.
Keep in mind, there is no obligation for parents to hire an attorney during the mediation process. It is, though, a very good idea for a parent to at least speak with an attorney during the mediation process and get a solid understanding of their rights so that they can be educated and feel empowered while in mediation.
The Mediation Process
As mentioned above, mediation is an out-of-court option for divorce. While each mediator may have their own way of approaching mediation the mediation sessions, the process generally remains the same. First, there is an introductory call with both parents (either individually or jointly). Thereafter, the mediator outlines the topics that the parties need to address and you move issue by issue through these topics until you have a full and complete agreement. Once you have a full agreement, the terms you agreed upon will be placed into a Separation Agreement, reviewed by you and your spouse, and then signed by you both.
The mediation sessions may be held in person or via Zoom (or similar video-conference platform). The benefit to an online mediation is that the parents do not need to be in the same room as each other, which can help ease tensions and related fears. Another benefit to online mediation is that the sessions occur wherever is convenient for you. There is no driving, fighting traffic, finding parking or other similar headaches you receive.
Proving Income, Assets, & Debts
The term “financial disclosure” means each side disclosing any and all information that is relevant to the topics being discussed. In mediation, the parents will decide what information will be provided. For example, parents may exchange bank statements, retirement account statements, pay stub, tax returns, and other similar documentation.
Mediation is a voluntary process and, for it to be successful, the spouses need to feel that they have been provided reasonable documentation upon which to trust that the financial resolutions they are basing the Agreement on will not come crumbling down around you.
What is a Separation Agreement and Who Drafts It?
In New York, a Separation Agreement is a contract between two spouses that outlines the terms you and your spouse agreed upon for the following topics: child custody, child support, spousal support, property and debt division, and counsel fees. The Separation Agreement is a legally binding contract. Once you sign the Separation Agreement, you become eligible to apply for an uncontested divorce in New York.
If your mediator is also an attorney, they have the ability to draft the agreement for you. You and your spouse would then attend a joint session with the mediator to review the agreement and sign the document. Once signed, you become eligible for an uncontested divorce in New York.
If your mediator is not an attorney, then your mediator will draft a “Memorandum of Understanding.” The Memorandum of Understanding is not a legally binding contract. Instead, it acts as a summary of the terms agreed upon in mediation. One of the parent’s then takes this Memorandum of Understanding to an attorney who would draft a Separation Agreement and provide a copy of it to the attorney representing the other parent. The proposed Separation Agreement should be reviewed by both the attorney who drafted the document and the other parent’s attorney. If all appears in order, you would sign the document and become eligible for an uncontested divorce in New York.
What Happens After We Sign?
You can choose to live under the Separation Agreement for a period of time or move forward to an uncontested divorce.
There can be benefits and drawbacks to deciding to live under the Separation Agreement. One reason to do so could be the ability to continue receiving health insurance under a spouse’s health insurance plan. However, a drawback to living under the Agreement is that you are still considered married in the eyes of the state and federal government. The decision of whether you should living under the Agreement – and delay the Judgment of Divorce – is one that should be thoroughly discussed between spouses and mediator, and where appropriate, outside legal counsel.
If you choose to move forward to an uncontested divorce, and your mediator is an attorney, then your mediation may be able to help you handle the uncontested divorce. If your mediator is not an attorney, then the attorney who drafted the Separation Agreement can likely handle the uncontested divorce. Be aware that the uncontested divorce process can take a few months but does not require court conferences or any significant amount of work on your part.
What is the Uncontested Divorce Process?
In its simplest form, an uncontested divorce is merely a series of papers filed with the Court in a certain order. Once the judge reviews the papers, they will sign off on the Judgment of Divorce which officially converts your Separation Agreement into a Judgment of Divorce.
Collaborative Divorce: The Perks
One way to think about Collaborative Divorce is that it is “mediation plus.” Meaning, it is similar to mediation in that you have a neutral who helps guide parents through the collaborative matter. However, the “plus” comes into play in the following way: in collaborative divorce the parents each hire their own attorney to provide independent legal advice and guidance throughout the process.
Here’s a look at a few of the other characteristics that make collaborative divorce different from a non-collaborative divorce or the typical mediation process.
When parties enter the collaborative divorce process, they sign a document known as the “Participation Agreement.” This agreement provide a lay of the land, so to speak, and explains that all negotiations will be in good faith, with full disclosure, and full participation of the collaborative team (which is the attorneys, the neutral, and any other professionals who may be necessary; more on that below). This agreement helps to ensure that everyone understands what is expected of them and provides a bit more structure to the process than an agreement to mediate.
In this contract, each party agrees to:
- Disclose all relevant information (including financial documents, and other obligations, accounts, money, and property);
- Proceed in good faith, and not take advantage of any honest mistakes made by the other side;
- Respect the other party’s goals and interests during negotiations; and
- If the matter breaks down, and an agreement cannot be reached, then the agreement requires a 30 day “cooling off” period before commencing litigation (there is an exception for an emergency); and
- To preserve the confidential nature of the discussions, the parties agree that if the matter breaks down they will fire their collaborative counsel and hire a new attorney for the litigation.
A Team Effort
Another distinguishing feature to collaborative divorce in New York, is that the parties have a “Collaborative Team” who work together with the parties to address their matters in prompt and cost-effective ways.
A typical Collaborative Team consists of the attorneys for the parties and the neutral. The neutral is often called the “family professional” and is typically a therapist with special training in childhood development and needs. From there, the core team can add in professionals to help on specific issues as the team and the parties agree. For example, if one parent owns a business that needs to be valued, the team would agree upon a valuator and bring that person in to value the business in an open and transparent manner. The professional could sit in on any meetings, as the parents or team needed, to help discuss potential resolutions. Once their task is complete, they terminate their involvement.
Another key way the team approach is a significant benefit is in the area of child custody. There, the family professional (who is often a child therapist) will sit with the parents and work to resolve the parenting time schedule and other child related issues. This is a very economical and streamlined process for resolving custody which is a tremendous benefit to the family. It also, though, provides parents the ability to create their parenting time schedule with the help of a trained therapist – a benefit not found in any other dispute resolution method.
Family Goals & Values
Another defining attribute to Collaborative Divorce is that every collaborative matter starts with the determination of “family goals and values.” This is a process whereby the family professional helps the parents discuss and agree upon the 3-5 concrete family goals and values that will help to guide them through this process. The idea is that all terms of the agreement will in some way support those family goals and values to make sure the agreements reached are tailored to the needs of the family.
These goals and values also have another benefit – they can help break any logjam that the parents run into. For example, if a family goal is having a home base for the children during the week and the parents get stuck arguing about schedules that wouldn’t create that home base then revisiting the goals and values may help move the parties back on the track they originally on.
What happens if it doesn’t “work”?
Of course, it’s easy to say you’ll play nice before the process has begun. However, once the collaborative meetings begin you will be discussing sensitive topics that may trigger tense responses. This is normal…and, more importantly, it does not mean that collaborative cannot work for your situation. But, there are times when a collaborative matter reaches an impasse that logic, and re-direction to family goals cannot break. In those instances, something else is needed.
Enter: the proper motivation.
One of the most brilliant aspects of collaborative divorce, is its insurance policy. In order to encourage both parties to bring their best selves to the table, each collaborative divorce agreement includes an termination clause. This section states, that, in the event a resolution cannot be reached, both sides will be required to scrap their attorney, and start preparing for litigation with new representation.
Naturally, having to start over with a new attorney would be a lot of work and a significant expense — which is exactly why this clause is so effective. Once agreed to, it locks both parties into an outcome of either mutual success, or mutual destruction (figuratively speaking, of course), giving everyone a vested interested in making collaboration work. Moreover, it makes the attorneys just as committed to the process working as it does the parents.
Why You Should Choose an Alternative Divorce Method
Hopefully you didn’t let that bit about “mutual destruction” in the previous paragraph scare you away from collaborative divorce. While the threat of having to get new representation isn’t optimal, it is rare that a case cannot reach a full resolution.
Still, whether you choose mediation or collaborative divorce, both methods offer a wide variety of benefits to clients, including:
- A setting that places more weight on your individual opinions and concerns;
- More control over your final outcome;
- The flexibility to reach an agreement that better suits your specific family needs;
- Less financial stress, since both cost far less than traditional litigation; as well as,
- Peace of mind, in knowing they’re choosing an option that will help everyone — especially young children — transition into the family’s new normal without the toxicity of a long, drawn-out court battle.
In light of all that, if the worst that can happen is that you have to start over with a new attorney, there really is no reason not to at least try.
Lauren L. Hunt: New York Divorce Attorney
Just as the needs in every relationship are different, no two divorces are the same, either, and for many couples, litigation just isn’t the best option. Mediation and collaborative divorce are both great ways to execute an efficient, frugal, and much more agreeable end to your marriage…and they are available to you even if your relationship is tense / occasionally hostile.
If you have more questions about these out of court divorce options in New York, and how they can be applied to your situation, I want to hear from you. Schedule a consultation by calling the offices of Lauren L. Hunt at (518) 282-7300, or, make an appointment online, and together, we can figure out which type of divorce will work best for you.
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