June 1, 2015
Written by Lynne C. Halem
Myriad myths, misconceptions, and misinformation overshadow people’s attitudes toward divorce and divorce mediation. Sometimes, these misconceptions are simply wrong; other times, they involve incorrectly applying generalities to specific situations.
No matter what the source of the myth, separating fact from fiction will better enable you to make a decision about whether divorce mediation is the right choice for you and your spouse.
Fiction:
“When we divorce, we need to divide all our property at the time of divorce.”
Fact:
You do not need to sell your home and divvy up all your property in order to obtain a divorce. However, you should be quite explicit as to when and how assets will be divided. For example, if one parent is going to remain in the marital home with the children, your agreement should specify the following:
The same specificity should guide your decision-making in stipulating terms for the division of all assets, including retirement funds. However, with respect to retirement funds, division must take place near the time of divorce.
Fiction:
“Wait until the judge hears what he did; justice will surely be served.”
Fact:
Conduct is only one of the eighteen factors for determining the division of property and, when used as a rationale for a disproportionate division, requires a trial to prove fault. A very small percentage of divorces are actually tried; even when individuals feel wronged and even when they feel they will benefit from waging a legal battle, the costs in terms of time and money dissuade most people from pursuing this route. Then, too, of the few that follow this course, most do not reap the benefits they anticipated. Some even emerge worse off than if they had not sought “justice” from the court.
Fiction:
“If I get divorced, I will lose access to my spouse’s health insurance.”
Fact:
This is true if your spouse is employed by a company that is self-insured (e.g., IBM, Microsoft). Employers with self-funded health plans are exempt from Massachusetts law which requires employers to offer access to ex-spouses for continued group health coverage. If, on the other hand, the employer is not self-funded, the ex-spouse can continue coverage after divorce provided it is clearly specified in the parties’ Agreement.
Fiction:
“Our divorce is going to be really quick and easy since neither of us is contesting the divorce.”
Fact:
Quick and easy has little to do with the fact that the divorce is not contested. Actually, the majority of divorces are not contested. The irony is that even in an uncontested divorce, there may be specific points of contention, that have to be resolved. And, even if there is not disagreement on major areas of property, support, and custody, the couple should be methodical and thorough in crafting the terms of their Agreement. Issues resolved now represent the most cost effective route to ensuring the longevity of your agreement, freeing you from a future of misunderstandings and returns to court.
Fiction:
“Mediation takes too long; lawyers will be much faster.”
Fact:
Mediation is an expeditious process, both with respect to savings of time and money. Having two people together at the same time allows the mediator to focus directly on issues without the circuitous chain of speaking to and through legal counsel. Moreover, an experienced and knowledgeable mediator can help couples to explore the intricacies of issues, planning for the present and the future. Therefore, not only do couples secure a divorce in less time, but they avoid emotional and costly future returns to court to deal with issues left unresolved in their settlement.
Fiction:
“Mediation is for couples without assets.”
Fact:
Perhaps surprising to those who believe that mediation is reserved for couples without assets and minimal income, the mediation population is skewed toward couples in the higher income brackets. It is these couples who often appreciate most the need to engage in creative problem-solving in fashioning the division of assets and the assignment of support. These couples understand that creative problem-solving is hindered and even distorted by “pass-through” conversation between lawyers and clients. They are proactive in wanting to determine their own future.
Fiction:
“I want to get this divorce done quickly; I can always go back to court if it doesn’t work out well.”
Fact:
It is amazing how many individuals believe the courthouse stands open with judges willing and able to redress any and all inequities that they feel were perpetrated under their divorce decree or to fill in the missing pieces left undone in the rush to divorce.
While it is true that individuals may return to court to reopen issues revolving around child support, and, in some cases, alimony, returns to court need to be based on a change in circumstances, not just a desire to change a ruling. Others return to court, claiming judicial error or fraud on the part of a spouse. The latter cases are by no means simple and, without exception, require expenditure of much time and undoubtedly, if individuals have legal representation, much money.
It is far wiser and less emotionally and financially costly to reach a settlement that feels fair and workable to both parties, now and in the future, than to anticipate making future changes to your settlement.
Fiction:
“Mediation is only for couples who communicate well.”
Fact:
Mediation is undeniably a process based on communication. However, it is the mediator’s responsibility to facilitate communication between spouses. It is the mediator’s responsibility to help each spouse express his and her needs, concerns, and priorities and to enter into a process built on creative problem-solving. The end goal is for the couple, with the mediator’s knowledge, guidance, and skill, to structure a settlement that maximizes resources, balances needs, and proves workable in the present and future.
Entering mediation with good communication skills is certainly helpful but rarely essential to the success of the mediation. Ironically, even those who have a history of communicating effectively may have trouble knowing and expressing their needs when facing divorce. These couples, too require guidance and facilitation in grappling with thoughts and feelings in this confusing time of their lives.
Fiction:
“If I enter mediation, I cannot have legal counsel.”
Fact:
NO, it is never true that individuals who elect to mediate renounce their right to have legal counsel.
It is true that people in mediation use legal services in different ways. Some individuals are referred to mediation by their lawyers, having counsel available to them throughout the process to answer questions and/or to review proposals. Then there are others who seek legal counsel during the mediation process, and still others who wait until the end of the process, using their attorney to review the terms of their agreement prior to submission of the document for judicial approval. Then, too, others elect not to use legal services.
The mediation population is not in fact all that different from other divorcing litigants in their use of legal services, varying from those who rely heavily on legal counsel for settlement to the increasingly growing segment of the divorcing population who mount cases pro se.
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