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Mediation is Often the Least Costly Way to a Divorce
Divorce is expensive and the resulting aftermath can devastate a family for a long period of time. Mediation minimizes this expense and the continuing aftershocks of the initial destruction. Some of the costs associated with divorce are:
Attorney's Fees/ Mediator Fees
Divorces where financial issues or child living arrangements are in dispute commonly cost in excess of twenty-five thousand dollars per spouse. Cases involving complicated property division or support issues may exceed fifty thousand dollars per spouse. These cases can take as long as two to three years to get through the courts.
In contrast, these same kinds of cases often have a total combined cost for both spouses of less than ten thousand dollars in mediation and attorney fees when divorcing couples choose to go to mediation prior to bringing a court action. The time required to finalize a mediated divorce is often less than six months.
Mediated divorces usually cost less even though the hourly rate for mediators is often similar to the hourly rate charged by attorneys. The cost is less because the time required by the mediator and the attorneys in a mediated divorce is substantially less than the time required of two separate attorneys to proceed with a divorce through the court system.
This is due in part to the fact that a lot of time and money for attorney's fees are used, during the initial stages of the divorce proceedings, to litigate peripheral issues, for the purpose of posturing and intimidation. Clients often find themselves going to court numerous times to litigate various issues that have very little significance to the final outcome of their case.
For example, one spouse may seek court intervention to order the other spouse to pay certain expenses, on a temporary basis, or for a determination as to who has the right to reside in the home during the divorce proceedings. These are often two hotly contested issues in which each of the opposing attorneys seeks to gain a psychological advantage over the other by "winning" a favorable decision early in the litigation.
Also, issues involving the failure of one side to produce necessary documents, or answer certain questions, can tie up a divorce case for two or three years. This rarely occurs during the mediation process because the agreement to mediate includes an agreement to provide all documents and information requested by the mediator. Refusal to do so will terminate the mediation.
Unfortunately, one of the most widely used tactics for litigating such temporary or peripheral issues is the character assassination of the opposing spouse during court appearances. Once this begins, clients are willing to continue to fund their attorneys to protect them from what they perceive to be a potentially devastating outcome.
Another factor that leads to protracted/expensive divorce litigation is the conflict of interests between the client and attorney. Most attorneys require substantial retainers (between five and ten thousand dollars) before they begin a case, as well as replenishment retainers, as the case proceeds. The attorney then charges an hourly rate which is credited against the retainer. If the attorney settles the case, the attorney is required to return any unused portion of the retainer to the client. The more time it takes to resolve any divorce case, the more money the attorney makes.
Mediators generally operate under a different kind of financial structure. They make money by working with a greater number of clients for shorter periods of time. A good mediator develops a reputation for helping their clients to reach a resolution of their divorce issues quickly. Some mediators will further limit the clients' financial exposure and fear of escalating costs by charging a set fee for preparing all of the paperwork once the clients have reached an agreement.
Once the paperwork has been completed, mediation clients are encouraged to take the divorce documents to separate "consulting" attorneys for review. These documents should include the divorce agreement as well as all financial backup materials such as recent retirement account and bank statements, appraisals, mortgage balance statements, and tax returns.
The consulting attorney will generally charge for only a couple of hours (not a substantial retainer) to review the divorce documents.
The net result is less time spent by all and less money spent by the client.
Time Lost From Work/Job Loss/Lost Opportunity
The time commitment required to prepare for and attend court proceedings depletes available time, energy, and resources that could be used to enhance each spouse's job performance or pursuit of financial opportunities.
The stress of a litigated divorce can be so debilitating that litigating spouses are often not able to perform their jobs at even a minimal level of competence. As a result, it is not uncommon for people who are going through divorces to lose their jobs or experience business failures.
Mediation conserves time, emotional energy, and financial resources, and it enables spouses to move forward without having to recover from the destructive side effects experienced during the court proceedings.
It is also not unusual for a person to become seriously ill while going through a divorce. The fear of the unknown, the psychological trauma that results from experiencing the behavior of the other spouse (both inside and outside of the courtroom), and the need to deal with issues of parent-child relationships can be overwhelming.
Mediation brings the issues of finances and child rearing out into the open, to be addressed and resolved through cooperation. Even though each spouse may not get the exact result that they think they want, they do get a resolution, and with that resolution comes the opportunity to go forward and rebuild.
Nothing can be more difficult than encountering the unknown and experiencing the feeling of impotence associated with being unable to navigate to the other side. Mediation provides the tools to get through a divorce without leaving a wake of devastation.
Trauma For Children
One of the strongest reasons to mediate is to protect your children. It is difficult enough for children to adjust to the reality that the family that they trusted would continue to exist is breaking apart. Children look to their parents for guidance and to help them make sense of what is going on in their home.
Children who experience parents who treat each other with respect and who are also able to remain available to their children and other responsibilities, even during a divorce, are more likely to model such behavior and to perceive the world in a more positive light.
Mediation allows couples to maintain their integrity and to continue to present themselves to their children as the kind of parents they would be proud to see their children become.
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In order to file for a divorce, both spouses must be residents of New Hampshire for a minimum of one year. If, however, one of the parties has not been a resident for one year, but the other has, and the reason for the divorce happened in the state, then the court recognizes the residency. Spouses who reside in different counties may file in either one of the counties.
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Author: Mary L. Boland, Attorney at Law
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