An important factor affecting your post divorce relationship with your former spouse is whether you resolve your differences through mediation or litigation. Litigation will quite likely devastate what little civility remains in your relationship. Alternatively, hiring an experienced Grantsville Utah family lawyer who emphasizes your mutual cooperation will help keep things from getting nasty. Not only may you and your ex remain capable of discussing future parenting issues in a friendly way, your children will benefit from observing your positive interaction.
In divorce mediation, a couple sits down with a neutral third party, or mediator, to negotiate various issues relevant to ending their marriage. Mediated negotiations center around three main concerns: (1) child custody and visitation, (2) division of property/ assets, and (3) spousal support (alimony). The amount of child support one parent is to pay the other might also be discussed but must be within the guidelines determined by Utah law. The mediator meets with both spouses together and guides them as they discuss and settle these issues in a way that is satisfactory to both of them. Divorcing spouses who want to try to mediate their differences have two options: hire a divorce mediator or use a free divorce mediator supplied by the court or by a local non-profit mediation center.
Mediation agreements become legal and binding once a judge signs the agreement. Most judges like mediation because it means one less couple tying up the court’s time and shows that the couple can work out their differences. Judges also feel that parents are best able to make decisions about their children and are relieved that they (the judges) do not have to do so.
Divorce Mediation Is Not Marriage Therapy
For all the good that mediation can do toward preserving a working relationship between you and your ex-wife, it is important to keep in mind that mediation is not marriage therapy. The spouses do meet with the same mediator at the same time, but the agenda is on settling the issues of the divorce, not getting the spouses back together. Sometimes (about 5 percent of the time), divorcing couples decide during the first meeting with the mediator that they want to give their marriage one more try before ending it. In such cases, the mediator refers the couple to a marriage therapist, where the goal is to reunite as a couple.
It also sometimes happens that one spouse is in agony and may not want a divorce. When this happens, mediation stops and the mediator refers this spouse to a therapist to work on his or her grief surrounding the end of the marriage. When both spouses accept that the marriage will end, the mediation may resume. Mediation requires that both parties acknowledge that the marriage is over and that the task at hand is resolving the issues of custody, visitation, child support, division of property, and alimony.
Divorce Mediation Is Not Adjudication
Adjudication means that a judge listens to both sides and makes a decision for both spouses. The problem with this action is that the judge is a stranger to the spouses, their relationship, and children and may be at a disadvantage by deciding what is best after hearing evidence, testimony, and witnesses over a 3-day period. It is also likely that the judge may make a very informed decision. Nevertheless, adjudication takes the power away from the spouses, who should be making the decisions themselves–decisions that will affect them and their children. Finally, what the judge says, goes. The spouses must do what the judge says and cannot change the order without making a new agreement and filing that with the court.
Divorce Mediation Is Not Arbitration
Arbitration involves a third party (arbitrator) making a decision after listening to both sides of the issue. Arbitration is like adjudication except that the person making the decision is not a judge and the decision is not binding unless the couple wants it to be. That is, no matter what is written in the court order, the ex-spouses can do as they wish as long as they mutually agree. Arbitration is usually much quicker and less expensive than adjudication, but still not as good as mediation in terms of saving time and money and giving the couple control over the final decision. However, only division of property can be arbitrated. Custody or child support cannot be arbitrated.
Mediators have special training in helping spouses resolve conflict and in mediating their differences. Some are attorneys, others are mental health professionals, and still others are social workers. Some work alone and others work as a team so that you and your spouse might be seen by two mediators at the same time. Mediators may also specialize in what they do. Some specialize in custody and visitation and others in financial mediation. Select your mediator with regard to your specific needs as a divorcing couple.
Benefits of Divorce Mediation
The more conflict that surrounds the end of your marriage, the worse it is for you and your children.
Mediation helps prevent the spouses from becoming bitter enemies. In court, divorce cases can become very nasty. Spouses often say things to hurt each other when they are ending their marriage. But the legal system makes it worse when “her” lawyer calls him names on the stand and insinuates he was a terrible husband and a worse father. “His” lawyer will shoot back by attacking her on the stand so that she looks bad. Neither spouse wins. Both are humiliated and hate each other even more for having participated in the legal process. Because domestic court is open to spectators in some states, anyone who wants to attend your custody battle may be able to do so. And because such hearings often become occasions to belittle the spouses, the airing of allegations of violence, drug abuse, and sexual indiscretions is likely to be exploited by both sides in this legal arena. Mediation, in contrast, happens behind closed doors and permits no public exposure.
Spouses who mediate their differences sit together with a third person to discuss and resolve the issues of whom the children will live with and how they will be taken care of. Such a discussion is not easy but it may be a better alternative than an expensive court fight. The money spent in court cannot be divided and used by the spouses and their children.
Mediation protects the future relationship of the ex-partners as parents. Spouses who end their marriage still need to continue to cooperate in parenting their children for years to come. Spouses who have mediated their differences and who remain friends have protected their relationship so that they can talk amicably the next time there is an issue related to the children. Spouses who have destroyed their relationship by becoming legal adversaries must resort to talking to each other through lawyers. Not only is this expensive, it is unsatisfactory. Mediation keeps the lines open between the parents. This is best for their children.
Mediation also helps the partners develop good communication and negotiation skills. In the absence of such skills, parents may yell and blame each other for problems with their children. Learning how to listen reflectively, staying on one issue at a time, and making a specific agreement to resolve that issue are important communication skills. Also, when the parents disagree, a spirit of compromise prevails. It is more important that the parents maintain their amicable relationship and “win” as a couple than that one parent “wins” the disagreement. Mediation maintains the focus that coming to an agreement and remaining friends are more important than winning any specific point.
Mediation gives parents the skills to stay jointly involved in their children’s lives and to share the work of parenting. Ex-spouses who are at war cannot discuss anything about their children so they avoid each other. But former spouses who have mediated their divorce are usually more comfortable discussing and negotiating issues related to their children. They continue to cooperate over religious, educational, health, and other issues related to their children, and the less parental conflict your children are exposed to, the better.
Spouses who litigate their divorce are often shocked to find out how much it costs and surprised to know that an inexpensive alternative exists. Because spouses and the mediator draw up the mediated settlement agreement, the spouses can make the agreement much more flexible to meet the changing needs of their children over time. Whereas a document written by lawyers may detail very precisely every minute the children are to be with each parent (this is usually necessary when spouses are not cooperative), the spouses may have a clause in their mediated agreement that allows them to change the agreement by mutual consent. Court orders may also have a similar clause.
In addition to all of these benefits, there are specific benefits to ex-wives in a mediated settlement. Divorced mothers stand to benefit from mediation in two ways. First, there is the obvious help with child rearing. Some former wives who are alienated from their ex-husbands because of messy divorces end up having to do the work of child care, transportation, and supervision by themselves. Unless they have remarried, their bitter relationship with their ex will ensure that they remain true single parents. But former wives who mediate their differences get help with the work of rearing their children.
In addition, former wives who have mediated their divorces receive more predictable child support. The court system sometimes destroys the incentive of men to pay money to their former wives–even though it is for child support. Despite elaborate federal and state regulations designed to get “deadbeat dads” to pay child support, many divorced dads who don’t want to pay child support don’t. Tough penalties may ruin the father’s credit but these sanctions in themselves do not force checks from a divorced father who doesn’t want to pay.
The primary benefit of divorce mediation for fathers is that they are more likely to end up with greater access to their children. If the woman wants to punish her ex-husband and limit his access to the children, she may be more likely to do so through litigation. He must fight her in court if he wants to continue to be involved in his children’s lives. Fathers should jump at the chance to mediate, as they face enormous odds if they go to court. However, both parties should be aware that a mediated settlement produces a “consent order.” When the ex-spouses agree to “consent,” they lose their right to appeal.
When Divorce Mediation Will Not Work
Despite the benefits of divorce mediation, it is not for everyone. Divorce mediation requires that both spouses be motivated to mediate rather than litigate their differences. If either the husband or the wife does not want mediation, it will not work. Mediation requires cooperation. Both spouses must be willing to negotiate, to give and take, and to keep the goal of reaching a mutually agreeable settlement above “winning” money or custody or things lawyers are hired to fight for. If the spouses don’t cooperate to settle their differences, they’ll end up watching their attorneys wage a nasty, time-consuming, and expensive court battle.
Neither will divorce mediation work if one spouse wants to get back together. Such a goal gives too much power to the other spouse so that the negotiation that takes place is not on fair ground. For example, if you want to reconcile the relationship with your ex-wife, you will probably be willing to agree to most anything in hopes that your doing so will win her back. But, if she has no interest in getting back with you, she may take advantage of your generosity, take everything you have to offer, and still not come back to you.
Before you file for divorce, speak to an experienced Grantsville Utah family lawyer to know more about divorce mediation. If successfully you will be able to settle the issues of your divorce without having to go to court.
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When you need legal help for a child custody case, divorce case, adoption, guardianship or other family law matter in Grantsville Utah, please call Ascent Law LLC (801) 676-5506 for your Free Consultation. We want to help you.
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West Jordan, Utah
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