Lawyering up when you break up is not necessary.
The classic divorce model in which each spouse hires an attorney, known as litigated divorce, can cost a ton financially and emotionally. And it’s wholly unnecessary for most couples splitting up. Mediation is rooted in a system that does not feed off of confrontation, or a lawyer’s motivation to ring up billable hours.
Divorce mediation is for couples who have a few issues to hammer out. It provides more guidance than a pro-se or uncontested divorce, in which couples essentially do a DIY divorce. By relying on a mediator as an unbiased third party to help you negotiate a settlement, you avoid the costly and often combative dynamic of having your separate lawyers hash things out.
A survey found that about 1 in 3 people who had recently gone through divorce used a mediator.
Unless you have reason to think your spouse has hidden money, or there are other serious considerations, such as domestic abuse, litigation likely isn’t necessary. In fact, as personal as divorce is, the rules around issues such as alimony, child support and child custody are driven by your state’s laws. You and your spouse aren’t creating something from scratch; in a classic litigated divorce your lawyers can fight a lot, and run up billable hours, but at the end of the day they know they have to strike a deal that conforms to state law.
Divorcenet.com has a state-by-state rundown of basic divorce rules. You can also get up to speed with a web search for “divorce information for (your state name).”
Here’s a cheat sheet on the mechanics of a mediated divorce.
• You’re (both) hiring the same person to serve as a neutral third party. A mediator does not take sides. It doesn’t matter who’s paying the bills. A mediator is committed to helping you both come to agreement. You don’t need to be on super-great terms. What you need is mutual respect. The mediator is there to help you frame and address the key issues you’ve yet to agree on, and then to guide you to a mutually agreeable resolution.
• Mediators often are lawyers, but don’t need to be. Plenty of family law practices offer mediation as a service. But there is no requirement that a mediator be a lawyer. Mediators with other formal training – retired judges or family court professionals, for example – help hash out an agreement and then hand off the paperwork to a lawyer you both hire.
• Mediation can be faster. You might need three or four sessions, each lasting a few hours. Maybe a few more. (It’s important to note that mediation is not binding. If you can’t come to an agreement, you are free to move on.)
If you reach a deal through mediation, all that needs to happen is for a formal settlement agreement to be drawn up and submitted to the court. If your mediator is a lawyer, they can handle this. If not, your mediator will recommend a consulting lawyer.
• It costs less. Keep in mind the dynamic you create when you hire your own lawyer through the classic model. They might nudge you to be more aggressive than you need to be to move on. Whether it’s “discovery” of documents or actual depositions, the billable hours can run up. Every phone call, email or correspondence between lawyers is billable time. You eliminate a lot of that with a single mediator.
Most divorce mediators charge an hourly fee. The national average hourly fee is around $300. If you both have your own lawyers, that’s $600 an hour, not $300, and it’s common for litigators to charge a higher fee than mediators.
In the Nolo book “Divorce Without Court: Mediation & Collaborative Court,” a baseline mediation example landed at 18 hours to work through a negotiation and have the formal settlement agreement drawn up. That $5,400. Other costs, such as each hiring a lawyer to review – more on this in a sec – and court fees might add another $3,000. An all-in of about $9,000 to cover both of you is not nothing. But it’s a whole lot less than the typical litigated divorce. A survey by Martindale-Nolo last year said the average per-person cost was more than $11,000, so $22,000.
• It’s recommended to hire your own lawyer – on a limited basis. Before you start mediation, you might find it helpful to sit down for an hour with your own lawyer to get a master class on your state’s divorce laws, and advice on how to approach parts of the mediation that you are most concerned about. There’s no rule that you can’t also check in with your lawyer in between mediation sessions. At the very least, it’s smart for you each to hire your own consulting attorney to review it once a settlement is reached. Making sure you have a clear and clearly understood agreement will give you both the confidence to focus on what is the ultimate goal: being able to pivot and fully focus on your next chapters.
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