Assets and liabilities can each have different tax consequences and if not properly accounted for, a settlement that might look fair on paper may turn out to be favorable to only one party and not the other. This can happen if one party trades a checking account for a 401k, confusing pre-tax with post-tax dollars, or when there are stocks involved and neither party is aware of the cost basis of a given portfolio.
Judges frequently say that if both people are unhappy with the judgment, it’s a good one. In the context of divorce this philosophy is even more appropriate as there are no winners when a marriage ends. Whether in court or in the mediation room, 100% mutual satisfaction with decisions and agreements is rare. As a mediator I believe that my clients are best qualified to determine what is “fair” regarding the restructuring of their lives. I encourage my clients not to define success by happiness or victory; but rather by the effectiveness of the process.
If the parties can not come to an agreement on how their marital property is to be divided, the court shall base its findings on all relevant factors including the length of the marriage, any prior marriage of a party, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, needs, opportunity for future acquisition of capital assets, and income of each party. The court shall also consider the contribution of each in the acquisition, preservation, depreciation or appreciation in the amount or value of the marital property, as well as the contribution of a spouse as a homemaker.
Note: State laws are always subject to change through the passage of new legislation, rulings in the higher courts (including federal decisions), ballot initiatives, and other means. While we strive to provide the most current information available, please consult an attorney or conduct your own legal research to verify the state law(s) you are researching.
Dan is a leader in the field of transformative mediation. He is the author of the chapter on divorce mediation in the Institute for the Study of Conflict Transformation's ("ISCT") TRANSFORMATIVE MEDIATION SOURCEBOOK. He is a Past Chair of the Minnesota State Bar Association's Alternative Dispute Resolution Section. He served for 6 years on the Mi ... more
In 2005, the average mediated case cost $3000 and was settled in 90 days. In turn, the average litigated case in the courts cost $15,000 and took 18 months to settle. Keep in mind, the litigated cases led to more spite and frustration between the divorcing couples, usually leading to a lose/lose situation for both. Not many people walk away from a litigated divorce feeling satisfied. On the other hand, couples who went through mediation felt satisfied with the agreements they had reached and both walked away feeling that they had gotten what they had wanted. Who would you rather have decide what happens with your children and assets after a divorce, you during mediation or attorneys and judges during a divorce in the courts? Who knows more about you, attorneys, judges or you? Why have people who know nothing about you tell you how you are going to live the rest of your life.
The complexity of the issues and ability of the individuals to be flexible as they negotiate a fair agreement determines the length of the mediation. Every case is different, but the average case usually takes at least three to four two-hour mediation sessions, spread out over at least a month or two. More complex cases can take four to six months to complete.
But not every couple is a good candidate for mediation—and it can be hard to know in advance who’s going to find the process helpful and who’s going to find it useless—or worse, enraging. To get a better idea of warning signs, I spoke to Rachel Green, the family lawyer in Brooklyn, New York, who handled my own separation ten years ago. Below, the eight signs that mediation might not be right for you.
I treat all parties in negotiations with respect. My goal is not to create winners and losers but to use my creativity, my empathy, and my knowledge of the law to create win-win solutions to the practical problems posed by divorce in a cost-effective way. This approach to reaching divorce agreements avoids the high costs, delays, and interpersonal conflict and stress that are inevitable in litigation through family law courts. As a Springfield divorce attorney mediator, I prepare the legal papers and Massachusetts divorce forms reflecting your decisions so that a judge can approve the separation agreement and issue the divorce decree.
You may be surprised to know that many divorcing couples are fairly respectful of each other and work well together in divorce mediation. There are also many couples who are very emotional about the divorce and as a result, exhibit more conflicted behaviors or believe they can not successfully negotiate face to face. As a mediator, I am trained to assist people in putting their emotions aside and focusing on the relevant issues. My job is to keep you on track and help you through the crisis. Rest assured that you will be accepted as you are; there will be no judgment or criticism and you will receive grounded professional assistance aimed at helping you succeed. My personal and professional experience has taught me that both emotions and conflict tend to diminish through the course of our work together. Professional guidance is often a key factor of success. As you progress through the process, you will likely come to understand why mediation is so successful at alleviating some of the non-monetary transactional costs of divorce.
If you were served with a "Summons and Petition" (you are the Respondent), you should talk to an attorney before you sign the "Answer and Counterpetition," and before you sign a "Stipulated Findings of Fact, Conclusions of Law, Order for Judgment and Judgment and Decree" (which is an agreement with your spouse on how to divide all assets and debts).