If you’re like a majority of the clients we see here at Equitable Mediation Services, one of you has been contemplating divorce for quite some time while the other may have no idea or isn’t ready to proceed.  In both cases you may be asking can I use divorce mediation if my spouse doesn’t want a divorce and the answer is yes.  While the ideal way is to come to the decision together, seek the services of a NJ divorce mediator, peacefully work through your differences and then file with the courts, this doesn’t always happen.  In the worst case scenario, you get a lawyer, file the papers and litigate since once served with the divorce complaint, your spouse will have no choice but to respond.  Unfortunately, the response typically entails getting a lawyer and the wheels of an attorney-driven divorce are set in motion and with it, the stress, lack of control and tremendous expense that comes with it.  But what happens if you’re ready to move forward and your spouse just won’t come to mediation?  Since mediation is a voluntary process and both parties must be at least somewhat willing to participate, what do you do if you’re just stuck and feel like you can’t move forward but still want to mediate?

There are two common scenarios:

1. You file with the courts and serve your spouse with papers and then come to mediation; or
2. You ask your spouse to learn about the benefits of mediation by reading this article and others like it so while they may not agree with getting a divorce, they can come to the decision that if it’s going to happen, mediation is the best path forward.

In the first scenario, while not ideal, it’s important to remember you can still mediate even after you’ve filed with the courts. All that it means is our timetable needs to be adjusted a bit but you are still working through the exact same issues that you would have if both of your attorneys had done it on your behalf.  Couples who choose to go this route can still end up saving significant amounts of money and time since with the help of a mediator in NJ, you can negotiate all of the tenants of your divorce face to face and then have your attorneys “cross the t’s and dot the i’s.”

In the second scenario, I suggest you both come to Equitable Mediation Services for a consultation so that I can explain your choices moving forward.  I’m hoping the reluctant party will come to the understanding that it’s far better to mediate than it is to litigate and even if they’re not happy about the divorce, as an adult, they have a say in how things will proceed.  While it takes two people to get married, it only takes one to get divorced and therefore, once the decision to divorce is made by one of the parties, you both have a choice on how to proceed.  So if you find yourself asking the question can I use divorce mediation if my spouse doesn’t want a divorce, please feel free to call me, Joseph Dillon at (908) 864-2177 as I’d be more than happy to help you learn the answer is yes.

As a mediator in NJ I enjoy discussing the benefits of divorce mediation (which makes sense since I am an Accredited Professional Mediator) but it may give you the impression that I have a slight bias in my opinion of collaborative divorce as a poor substitute for mediation.   Based on a recent article in Crane’s Chicago Business featuring a story called “Collaborative law aims for a kinder divorce; how’s that working out?” It seems I’m not alone in my opinion that the answer is poorly.

Here are some actual quotes from the article:

• The idea of a drama-free divorce appealed to them both. But they didn’t make it through the process and are now spending even more time in the courtroom. In his lawsuit, Dr. Schacht accuses Dr. Hart’s attorney, James Galvin, and his firm, Schiller DuCanto & Fleck LLP in Chicago, of dragging their feet in order to “add to the cost of billing.” This, he says, violates a main tenet of Collaborative law, which requires attorneys to operate in good faith and in a timely way.
• “It’s a boondoggle,” he says. “Collaborative law is the … trend of the week.”
• Though costs can vary widely, a regular divorce might cost $78,000, with an attorney working five hours a week at $300 per hour for a year, the typical length of a case. An ideal collaborative divorce case costs half that ($39,000)…
• Danielle Engstrom, …says the process moved too quickly for her liking … “I felt hurried.”
• “You have to have a lawyer who can put away the competitive instincts of litigation and go into problem-solving mode,” says Don Schiller. “Most lawyers who go into trial work are advocates and tend to want to win for clients.”
• Leon Finkel, is among divorce attorneys who have taken cases of parties who tried but failed to divorce collaboratively. He points to a recent case in which the husband, spent $35,000 on a collaborative divorce case that went on for a year before he quit and went the litigation route.
• Mr. Finkel said his client felt meetings were held with his ex-wife and their lawyers simply to rack up costs. “He felt (collaborative) lawyers had an obligation to tell him it wasn’t working . . . but instead they dragged it on,” Mr. Finkel says.
• The method … creates a cottage industry for lawyers who can’t stomach the stress and aggravation of trying a case and “does nothing to serve the client at all.”

With divorce mediation:

• You control the costs as your Mediator will help you to do much of the work yourself.  The average mediation costs between $5,000 and $7,000, not the $39,000 that a collaborative divorce does.
• Mediation has been used since ancient Roman times so it is certainly not the trend of the week.
• Mediators in New Jersey are neutral third parties who don’t take sides.  That’s why it’s even more important to select an Accredited Professional Mediator who is truly a Mediator and not simply an attorney pretending to be one.
• Our only goals as Mediators is to help you and your spouse come to an agreement that works for both of you.  You control the process and decide when it’s not working, not the other way around and if on the off chance that it doesn’t work out for you, you don’t lose all the progress you made like you do with a collaborative divorce.

If you have any questions about divorce mediation and why it’s the preferred alternative to a collaborative divorce please feel free to call us at (908) 864-2177 or e-mail us and we’d be happy to schedule a time for you and your spouse to come in to learn more.

Mature divorces come with their own unique set of circumstances given the substantial assets the parties have accumulated over their long-term marriage but what about alimony and the mature divorce?  How is something such as spousal support (formerly known as alimony) handled in situations such as these?  Unlike child support, there is no software program or formula to calculate alimony so therefore, coming to mediation is even more critical to those going through a mature divorce as there is so much at stake.

The first question I am asked as a divorce mediator in NJ is “why do I have to pay alimony?”  The basic concept is each of you contributed to the marriage’s success and therefore should share in the financial rewards.  The thought being one party sacrificed their career to support the other spouse by maintaining the family household and children.  Without this support, a high earning spouse would not have been able to earn such a salary and thus, both parties should benefit from it. As we like to say in mediation: one of you worked outside the home and one of you worked inside the home but you both worked.

So how do we agree on an appropriate amount of Spousal Support? This is where mediation really shines.  We start with a budget of what you looked like as an “intact couple” to establish what is known as the marital lifestyle. Then you’ll each do a budget of what life on your own will look like. We’ll then discuss an amount that allows each of you to live a relatively similar lifestyle to each other post-marriage.  Notice I didn’t say the same lifestyle you had as you were married.  We’ll factor in the length of your marriage, each of your incomes, your education, your earning potential and any goals each of you has in regard to your post-marital life.  Perhaps one of you wants to keep the house or one of you wants to pursue a college degree.

So when does alimony end and what exactly defines a “change in circumstances?”  This is an extremely complex matter and one best discussed with a divorce mediator in NJ who can help both of you determine what an appropriate duration may be and in what circumstances alimony may terminate.  In general (this is NOT legal advice) alimony continues until one of you has a “significant change in circumstances” which may be defined as: the receiving party getting re-married, the loss of a job with no prospect of employment for an extended period of time, a significant disability or a retirement.  As each couple’s situation is unique, it’s always best to consult with a divorce mediator in NJ who can help you both decide what you feel is appropriate in your particular circumstances.  The important thing to remember is: alimony is a conversation, not a formula.  This is your divorce so provided it’s within reason, the alimony amount you agree on and how long it lasts can be entirely up to you.