If you are facing a divorce, you are facing a rocky road ahead, and you likely want to make it as easy on yourself and your children as possible. One great option is divorce mediation, which has wide-ranging benefits and is well-suited to many divorcing couples. Better understanding the basics as they relate to mediation can help you make the right decisions for you.
Divorce Mediation
You have likely heard of divorce mediation, but you may not have any idea about how it works, and that is ok. Mediation is a very straightforward process that can be adapted to suit your needs. For example, if the ebb and flow of the pandemic leave you needing social distance, mediation can be conducted on a video conference platform. The basic building blocks of divorce mediation include:
A professional mediator who is a neutral third party will help you and your divorcing spouse find a middle ground on those divorce terms that you have been unable to resolve.
You and your divorcing spouse will both be accompanied by your experienced divorce attorneys.
The mediator will go back and forth between you and your divorcing spouse – helping you bridge the divide on those unresolved terms.
The mediator will employ his or her professional experience and knowledge to help you understand how the court would likely rule if your case did go to court.
The mediator will help you explore your best options and consider compromises that might be a good fit for you.
If you settle the divorce terms that remain unresolved and sign off on that settlement, it becomes binding, but you are not required to reach a settlement or to sign off on anything.
If you are able to resolve your divorce terms at mediation, you are ahead of the game and can move forward toward having your divorce finalized.
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The Terms of Your Divorce
At mediation, you will have the opportunity to pin down any terms that you and your spouse are unable to reach an agreement regarding. While your divorce will be unique to your situation, the basic terms you will need to address are the same (as applicable) as those addressed by every other divorcing couple.
Your Child Custody Arrangements
In Texas, child custody is now called conservatorship, but the meaning remains the same. Custody is divided into both legal custody and physical custody. Legal custody has to do with who will be making important decisions on behalf of your children after your divorce, and legal custody relates to how you and your ex will be dividing your time with your shared children. Both forms of custody can be either sole or joint.
The Division of Your Marital Property
Those assets that you acquired during your marriage are marital assets, and upon divorce, they must be divided between you in a manner that is deemed equitable (or fair under the given circumstances). Those assets that you bring into the marriage with you and that you are able to keep separate will remain your separate property, but maintaining this distinction of separateness generally requires careful attention to the matter (attention that is often lost over the course of a marriage). The division of marital property is often one of the most complicated and contentious divorce terms to resolve.
Child Support
Child support is in place to help ensure that both parents continue to contribute to their shared children’s financial support, and the payments are calculated in accordance with state guidelines. While a variety of factors can affect child support, the primary concerns include who the children will be living with the majority of the time (if you divide your parenting time this way) and each parent’s income. Generally, even if you split your parenting time evenly down the middle, the parent who is the higher earner will pay child support to the other.
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Alimony
Alimony is called spousal maintenance in Texas, and it refers to payments made when one spouse experiences a financial downturn with divorce, and the other spouse has the financial means to help. Factors such as the length of your marriage and each spouse’s earning potential help determine the length and duration of alimony.
Any of these terms that you are unable to settle prior to mediation will be addressed at mediation, and if you are able to resolve them at mediation, you can bypass the court’s intervention.
The Benefits of Mediation
Mediation can have wide-ranging benefits that most divorcing couples appreciate.
Privacy
If you hammer out your divorce terms in mediation, the results are private. If, however, your divorce goes to court, it becomes a matter of public record. Divorce is a private matter that most couples would prefer to keep private.
Expense
Mediation is less expensive than litigating your divorce in court. Your attorney will not need to prepare for court, which can shave off considerable legal costs.
Time
When you go to mediation, you are not tied to the court’s docket, which tends to be very clogged. If you are facing a divorce, the goal is to get through it (with your parental and financial rights upheld), and mediation can help you with that.
Control
Mediation allows you to maintain control over your divorce and to keep the decision-making power between yourselves. Most divorcing couples would prefer that a judge who does not know them at all does not make critical decisions about their post-divorce lives for them. Further, you will not be making those decisions without professional legal counsel – your respective divorce attorneys will be there with you (helping you make the decisions that are right for you).
Open Communication
The atmosphere at mediation is far less formal and much less intimidating than going to court, which can facilitate open communication between both sides (instead of simply allowing a judge to rule). Some couples find that working together in this way helps to encourage more open communication post-divorce as well.
Options
At mediation, you can explore all your options, and you may find that you are better able to compromise with one another than you thought. Further, your mediator will help you explore wide-ranging options that you may not have even considered. Once you have a pretty good feel for how the judge would likely rule in your case, it can make seriously exploring your options in mediation seem like something both of you may be more amenable to trying.
Mediation Is Generally a Good Option
If you and your divorcing spouse are both open to the idea of mediation and are both willing to give it an authentic try, you are good candidates for divorce mediation. While there are no guarantees when it comes to divorce, being committed to the mediation process is typically half the battle. The benefits of mediation often outweigh anything you give up in the process, and you can count on your divorce attorney to help ensure that your parental and financial rights are protected throughout the process.
When Mediation Is Not Likely to Work
There are certain situations when mediation is not a great option – either because it is not likely to work or because it will probably be more harrowing than it should be.
Domestic Abuse
If your spouse has engaged in domestic abuse in the past, putting yourself in a situation in which you have to negotiate divorce terms with him or her is not likely to be in your best interest. Your emotional well-being is far more important than anything else, and this is a situation in which the court’s controlled atmosphere and the judge’s intervention can serve you well.
Fault-Based Divorce
If you are seeking a fault-based divorce, you are unlikely to achieve this at mediation. Sometimes, the matter of fault is very personal and plays a significant role in one’s post-divorce emotional recovery, which means that you should weigh the matter carefully with your divorce attorney and do what is right for you. To achieve a fault-based divorce in Texas, you will very likely need the court’s intervention (unless your spouse is willing to sign off on the matter). It is important to note that the vast majority of divorcing couples obtain no-fault divorces in Texas (and across the nation).
Untrustworthiness
If you suspect that your spouse is not on the up and up regarding your marital assets and finances, going to mediation is not likely to protect your financial rights. If you have seen signs of duplicitousness or you simply do not trust your spouse to be honest (due to past experience), it is a good idea to give mediation a pass. Mediation is intended to help couples who are genuinely committed to the process, which includes being open and forthright with all relevant financial documentation (and all the information related to every other matter that is being resolved).
Stalling Tactic
If your divorcing spouse is attempting to stall the divorce and drag it out as long as he or she possibly can, mediation may be just another opportunity to do that. If you have a distinct impression that your soon-to-be-ex would rather your divorce never be finalized, it is a good idea to bypass mediation.
Vindictiveness
If your divorcing spouse is more interested in hurting you than in resolving anything, mediation is not likely to get you very far. When a divorcing spouse chooses to take things in a contentious direction, there is very little the other person can do about it other than taking the most direct route to court.
FAQ
Having the answers to some of the most frequently asked questions related to divorce mediation can help you proceed with greater confidence toward your own mediation.
Do I really need an attorney?
While you can go to mediation without an attorney, there is so much riding on the outcome that it is not advisable to do so. Your parental and financial rights are too important to leave to chance, and there are factors such as the tax implications of your terms that can be very difficult to address adequately without the professional legal guidance of an experienced divorce attorney on your side.
How do I prepare for mediation?
There are several important steps you can take to help you prepare for your divorce mediation, including:
Prepare yourself for the fact that mediation is all about compromise, which means that meeting every condition you would like to be met is unlikely to happen.
Make sure that you are well acquainted with your financial information so that you will be able to fully participate in the negotiation process.
Go into mediation with an open mind and be prepared to consider wide-ranging options that may work for you.
One of the most important steps you can take to prepare for your mediation, however, is prioritizing your goals. When you recognize what matters the most to you, it allows you to take a focused approach to negotiate terms – rather than a scattershot approach – and can provide you with considerable leverage.
What if we are not able to negotiate terms that I am willing to sign off on?
You are not bound by the mediation process itself. If you do negotiate terms that you do sign off on, those terms are legally binding. If, however, you are unable to find a middle ground on the terms you need to resolve – or if you change your mind before you sign the settlement agreement produced – you will continue on to court. You cannot be pressured into resolving your issues via mediation.
An Experienced Killeen Divorce Attorney Can Help
If you are facing a divorce, mediation may be a good option that can save you time, money, and even considerable heartache. Brett Pritchard at The Law Office of Brett H. Pritchard in Killeen, Texas, is a practiced divorce attorney who has a wealth of experience successfully guiding cases like yours through the mediation process and toward beneficial resolutions. For more information about what we can do to help you, please do not hesitate to contact us online or call us at 254-501-4040 today.
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