Considering Divorce Mediation? What You Need to Know

Divorce

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Brett Pritchard Law

Updated on March 30, 2024

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.

If you are considering divorce mediation, contact a skilled Killeen criminal defense attorney for guidance throughout the process.

Both Parties’ Commitment to the Process

Before you begin your mediation journey, it's important to establish that you and your divorcing spouse are both committed to the process. If you are all in, but your spouse is ready to do battle, it doesn't mean that mediation isn't a possibility, but it may take far more effort.

Further, if your divorcing spouse is determined to make your divorce as difficult as possible every step of the way, mediation will likely serve no purpose other than making your divorce a more costly and time-consuming affair.

Mediation is not about compromising your rights but is, instead, designed to help you find a middle ground that you are both willing to sign off on – without the court’s intervention. If you and your soon-to-be ex are both open to this possibility, there is a very good chance that mediation will work 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 unresolved divorce terms and sign off on that settlement, it becomes binding, but you are not required to reach a settlement or 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. Your seasoned Killeen criminal defense attorney will help you navigate mediation with your rights intact.

Related Reading: Why Divorce Mediation Is Often a Good Idea

When to Begin Mediation

If you’ve decided to move forward with divorce mediation, it is important to know that mediation can come into play at several stages in the divorce process. Your knowledgeable Killeen divorce lawyer will help you determine when to begin mediation.

Mediation Prior to Filing

An agreed divorce is one in which you and your spouse determine your divorce terms prior to filing, and there is no need to agree spontaneously – mediation can help you get there. If you attend mediation before filing and are able to resolve all of your divorce terms, you can reach a divorce by agreement.

Mediation after Filing

It’s more common for divorcing couples to file for divorce, attempt to negotiate terms between themselves – with the guidance of their respective divorce attorneys – and then head to mediation when negotiations break down. At this point, you’ve resolved those terms you can and are ready to tackle what’s left in mediation.

The Terms of Your Divorce

At mediation, you will have the opportunity to pin down any terms that you and your spouse cannot agree on. 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.

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.

Your Child Custody Arrangements

Child custody is now called conservatorship in Texas, but the meaning remains the same. Custody is divided into both legal custody and physical custody. Both forms of custody can be either sole or joint.

Legal Custody

Legal custody has to do with who will be making important decisions on behalf of your children after your divorce. Your options going forward include the following arrangements:

  • Both of you continuing to make these important decisions together

  • Both of you continuing to make these important decisions together while one of you has the authority to cast the deciding vote when you're unable to reach a consensus

  • Both of you dividing these decisions between you according to the category of decision that needs to be made

  • One of you being awarded sole legal custody and making these important decisions on your own

The kinds of decisions that legal custody covers relate to the following parenting concerns:

  • Where your children make their primary home

  • Where your children attend school or daycare

  • The medical care your children receive

  • The religious education your children receive

  • The travel and extracurriculars your children participate in

Physical Custody

Physical custody relates to how you and your ex will be dividing your time with your shared children. Scheduling options are endless, but one of you will become the primary custodial parent, or you will both adopt a schedule that balances parenting time more evenly between the two of you. Adopting a schedule that accommodates everyone’s needs helps to set the stage for effective co-parenting.

The Division of Your Marital Property

Those assets that you acquired during your marriage are marital assets. Upon divorce, they must be divided between you in a manner that is deemed equitable (or fair under the given circumstances). This division is made in the context of factors like the following:

  • The length of your marriage

  • Each spouse’s contributions to the marriage, including in terms of homemaking and childrearing

  • The size of the marital estate and each spouse’s separate estate – assets owned prior to marriage and kept separate throughout the marriage remain separate assets

  • Whether either party artificially spent down or otherwise dissipated marital assets prior to the divorce

  • Whether either party is at fault for the dissolution of the marriage

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 generally requires careful attention (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. As such, it is always best to work through the process with a skilled Killeen criminal defense attorney at your side.

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.

Related Reading: Child Support: How It Works in Texas

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. Alimony is generally intended to help the recipient gain financial independence through further education, job training, or acquiring job skills.

Factors such as the length of your marriage and each spouse’s earning potential help determine the length and duration of alimony.

The Mediation Process

The mediation process follows several primary steps in Texas. While your mediation experience will be unique to your situation, the basic path forward varies very little from case to case.

Choosing a Mediator

A mediator is a professional who may have a legal background and is adept at helping couples meet in the middle on their divorce terms. Your mediator is in the unique position of being a neutral third party whose focus is helping both sides better understand how the law applies to their case and how the court is likely to rule, which can help inspire authentic negotiations.

Generally, each spouse’s seasoned divorce attorney suggests a mediator whom he or she has likely worked with in the past. From here, a mutually acceptable choice is reached. The mediator is there only in the capacity of moving the case forward in accordance with the law, and as such, he or she won’t offer advice or put either party’s best interests ahead of the other’s.

Your attorney is there to protect your rights and help you make the right decisions for you, while the mediator is there to help you and your divorcing spouse remain focused on resolving the terms that need to be resolved.

Mediation as an Educational Process

Mediation isn’t a legal process, and it’s not a form of therapy. Instead, it serves as an educational process that allows both sides to understand their positions and the related laws better. Many participants find that it leaves them more inclined to compromise in support of their own best interests and in an effort to retain decision-making authority between themselves.

Seeing the Big Picture

Mediation can help you see the bigger picture for your divorce, which may leave you better positioned to resolve matters that need to be resolved. For example, if you’re stuck on one element of one divorce term and are having trouble moving past it, mediation can provide you with the context you need to let it go in support of bigger concerns.

Ultimately, protecting your financial and parental rights is key, but minor details shouldn’t gum up the works.

Your focused Killeen divorce attorney will be at your side throughout the mediation process to help you make decisions that are in keeping with your rights. Along the way, you may find that you’re more willing to explore resolutions you hadn’t considered before.

Mediation is often the last stop before heading to court, which many people find extremely motivating and may leave your soon-to-be ex more willing to engage in robust negotiations.

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. However, if 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

Learn more by reading “Keeping Your Divorce Documents Private in Texas.”

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.

In mediation, you will not be making those decisions without professional legal counsel – your respective divorce attorneys will be there to help 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 encourages 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 Killeen 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. If you are afraid of your spouse – or of what he or she might do – there is a power differential between the two of you that must be considered. In such a situation, mediation is highly unlikely to prove successful and can increase the danger you face.

Under these circumstances, obtaining a protection order and proceeding to court is likely the safest path forward, and your and your children's safety should be your top priority. 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. 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, bypassing mediation is a good idea.

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 about Divorce Mediation

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. The mediator is there to help you resolve the terms of your divorce, not to specifically protect your financial and parental rights, which is your attorney’s role.

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 Killeen 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:

  • Remember 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 can 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 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 negotiate terms that you can sign off on, those terms are legally binding. However, if you are unable to find middle ground on the terms you need to resolve – or if you change your mind before you sign the settlement agreement – you will continue on to court. You cannot be pressured into resolving your issues via mediation.

If your divorcing spouse refuses to give an inch in mediation and you can’t reach terms that protect your rights, it’s time to cut your losses. Resolving your divorce during mediation just to put the matter behind you isn’t a good plan. In such situations, proceeding to court is the best option.

As your court date approaches, your soon-to-be ex may become more amenable to compromise. In fact, you can negotiate terms all the way up to the point that the court rules on your case.

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 with a wealth of experience successfully guiding cases like yours through mediation 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) 781-4222 today.

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