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What
is a divorce mediation?
What
is litigation?
Why
is mediation a better way to divorce?
How
long does it take?
Is
mediation a legal way to divorce?
Can
I start mediation if I am already involved in an adversarial
divorce?
Why
do I need to hire a lawyer if I chose mediation?
We
are very angry at each other, can we still resolve our issues through
mediation?
What
are grounds for a divorce?
Do
we need to state a reason for the divorce?
Does
fault make a difference?
What
are the Child Support Guidelines?
What
is equitable distribution?
We
do not want to file for divorce yet. Can mediation help us to work out
a separation agreement?
What
does contested vs. uncontested divorce mean?
What
is divorce mediation?
Family Mediation is a cooperative problem
solving process. It helps
divorcing couples to reach an agreement that is the fairest and free
of biases to both parties through the guidance and support of an
impartial trained professional. It is a way for families who are
splitting into parts to learn to deal with the changes in roles,
duties, and opportunities and to face those changes with emotional
balance.
Thus, mediation is far less hostile than litigation, which is
particularly beneficial when there are children involved, and is considerably
less expensive than a traditional adversarial divorce.
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What
is litigation?
Litigation
is a traditional adversarial divorce process where each party has to
hire an attorney who will represent and if necessary “fight” for
the divorcing parties in court.
Thus, the process of divorce will depend on the lawyer’s
experience and aggressiveness rather than on the couple’s best
interests for themselves and their children. Communication between
parties is discouraged leaving each frustrated with the other and with
the entire system. Clients have no control over their lives and often
when neither the lawyers nor the clients can agree to anything, the
limbo for the clients becomes a nightmare from the psychological
stress and exhaustion of financial resources.
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Why is
mediation a better way to divorce?
Mediation has become a popular method of
divorce and there are many reasons for that. In my opinion, one of the
most important is that when couples prepare their own agreement,
making arrangements for themselves and their children rather than
negotiating divorce matters with their lawyers, control stays
in the hands of the couple, not the attorneys or the Courts. Therefore, it
is very unlikely that such agreements are sabotaged. Research has also
shown high rates of compliance with mediated agreements compared to
compliance in adversarial decrees.
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How
long does it take?
The time varies because of the level of
complexity of each case and other factors which a divorce may bring. Nevertheless, it almost always takes less time than
litigating a divorce. Usually, three to fifteen hours are enough to
discuss and resolve parenting, financial arrangement, and other
possible issues of divorce.
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Is
mediation a legal way to divorce?
Mediation is an absolutely legal way to
divorce. Moreover, more and more people turn to mediation when divorce
is forthcoming. It is easier on children, and also a faster, and
cheaper way to
divorce.
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Can
I start mediation if I am already involved in an adversarial
divorce?
Couples can choose to go to a family mediator
at almost any stage before the divorce is finalized. Couples often
turn to mediation services for a multitude of reasons. Frequently they
find the process a better alternative when the divorce fight creates
so much stress for the children it impacts their everyday life.
Mediation is also frequently valued as a 2nd chance for couples who
find their resources exhausted before vital decisions are made. Just
tell your attorneys to stop further work until you explore the
mediation process.
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Why
do I need to hire a lawyer if I chose mediation?
Mediation is not a lawyer free process.
However, the role of the attorney in mediation differs from the one in
contested divorces. The parties are usually encouraged to obtain legal
counsel for the purpose of providing answers to specific questions of
law, to review the terms of their agreement from a legal standpoint,
and to prepare any documents to be filed with a court.
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We
are very angry at each other, can we still resolve our issues through
mediation?
This is a very common question. There is a
notion that couples can cooperate and come to the agreement with each
other only if they can get along. But if people could do it, they
probably would not consider a divorce. Mediators are trained to focus
the parties on solutions for the future, separate their emotions from
the issues they work on, and to show people how to work together
productively in spite of their anger. As long as the parties put
aside their anger during mediation sessions and agree that a solution
that they reach voluntarily is better than an adversarial process,
mediation can be successful.
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What
are grounds for a divorce?
New Jersey law provides the
following grounds for the divorce:
-
New Jersey law now includes
"irreconcilable differences" as a ground for divorce for six or more
months
- Extreme
cruelty (physical or mental)
- Adultery
- Willful
desertion for at least 12 months
- Habitual
drunkenness or voluntary addiction
- Institutionalization
for mental illness for at least 24 consecutive months
- Imprisonment
for at least 18 consecutive months
- Deviant
sexual conduct
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Do
we need to state a reason for the divorce?
As of January 2007 New Jersey law now includes
"irreconcilable differences" as a ground for divorce. The bill, just
signed into law by Governor Corzine, means that a Complaint for
Divorce can assert the existence of irreconcilable differences which
have caused a breakdown of the marriage for six or more months.
Otherwise, you would need to present the court with the grounds of
your divorce. Possible grounds for the divorce are listed above.
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Does
fault make a difference?
The fault or wrongdoing of a party in a divorce
action has no bearing on how assets will be divided that were acquired
during the marriage. So
even though fault is an emotional factor in a divorce, it has no
influence on the terms of the final settlement.
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What
are the Child Support Guidelines?
The Courts have adopted
guidelines intended to provide guidance as to what it actually costs
to raise children. The Guidelines fix a range of support that should
be paid by both parents, proportionate to their incomes. Childcare
costs are considered separately. Very often in mediation, child
support guidelines are used as a baseline and child support amounts
may deviate and be negotiated beyond those in the guidelines. Both
parties, when negotiating child support, will take into consideration
their actual budgets and their children’s needs.
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What
is equitable distribution?
The division of the marital property of the couple
that came to the parties during the marriage is called equitable
distribution. Usually it does not include any gifted or inherited
property. Thus, the divorcing parties shall identify the marital
property and determine its worth in order to negotiate the division of
it. The house, the automobiles, the bank accounts, stocks, bonds, and
other tangible possessions are examples of marital property.
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We
do not want to file for divorce yet. Can mediation help us to work out
a separation agreement?
Although New Jersey law does
not provide for a formal legal separation, you and your spouse can
agree to live separately and to resolve all financial and
child-related issues in a written agreement. Mediation is an excellent
choice to work out the terms of your agreement that both parties will
honor without filing for divorce.
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What
does contested vs. uncontested divorce mean?
In
a small number of cases –no more than 5%-the parties negotiate a
settlement before any action is begun in the courts. It is only after
a settlement is resolved that either one files a suit for divorce.
Because all issues of support, property distribution and custody have
already been resolved, the only relief sought by suit for divorce is
the dissolution of the marriage. The couple is not asked to award
custody, alimony, child support or property to either party because
the parties have already reached agreements on these matters This is
the simple, uncontested divorce.
For
the other 95% of divorces the process is not so simple. It begins as a
contested matter as one spouse sues the other for divorce. The other
spouse may also file a counterclaim asserting his/her own claim for
divorce. In such contested actions the court is asked to resolve the
child related and economic issues. Here the future of the couple is
determined by the decisions of the court rather than the decisions of
the couple. The irony of
the contested divorce however is that very few divorce lawyers
actually go to trial. The most common outcome of divorce litigation is
a negotiated settlement and less then 2% of the cases actually end up
in front of a judge.
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