Divorce touches almost every family in our state. According to statistics published by the Judicial Branch from the time period of July 1, 2013 to June 30, 2014, nearly 33,000 family cases were added to the already crowded docket. Just as no two marriages are the same, no two divorces are the same either. If you are a person living in Greenwich, Westport, Stamford, Darien, or New Canaan contemplating divorce, you have several options to choose from. Generally, the options fall into four main categories: (1) Mediation, (2) Collaborative, (3) Litigation, and (4) Alternative Dispute Resolution (“ADR”). At Broder & Orland LLC, we counsel individuals as to the positives and negatives of each category. This four (4) part series will discuss some of those points, starting with mediation.
In strict mediation, the divorcing couple works with a neutral mediator whose job is to help facilitate and/or broker a comprehensive agreement on all issues related to the divorce including legal custody, physical custody, alimony, child support, housing, division of bank, brokerage, and retirement accounts, and the division of personal property.
Theoretically, this is the most idealistic of the main categories because it involves the couple working together to resolve their issues outside of the courtroom in an expeditious manner at a minimal cost. However, in application, mediation often does not follow the idealistic path. Generally, for a mediation to be successful, each spouse needs to (a) fully trust one another, (b) be on equal footing with regard to knowledge of his/her finances, and (c) be invested in truly wanting to get divorced.
Trust: Is the hallmark of mediation and it is nearly impossible for mediation to be successful without each spouse having trust in one another. Since mediation occurs outside of the courtroom, a divorcing party does not have the discovery tools available to him or her that would otherwise be available, such as requests for production, interrogatories, depositions, and requests to admit. Without these discovery tools that force a spouse to turn over pertinent financial information, a spouse participating in mediation has to trust that his or her partner will voluntarily turn over the pertinent financial information. Without the pertinent financial information, it is difficult to determine whether a divorce agreement is fair and equitable.
Knowledge: If a spouses do not have comparable knowledge as to the nature of the marital income and/or assets, one spouse may dominate the mediation which could result in a lopsided divorce agreement. In towns such as Greenwich, Westport, Stamford, Darien, or New Canaan, at least one spouse may be employed on Wall Street, and/or work at a hedge fund or private equity firm. These type of individuals often have more sophisticated assets and complex compensation structures which required a particular level of knowledge and experience to understand. For example, when a spouse makes an alternative investment that includes capital calls, it is important to understand the call schedule as it may disrupt cash flow and affect alimony or child support payments.
Goal: This may sound elementary, but each spouse must be fully invested in the process of dissolving the marriage, as otherwise the mediation can drag on, which will undoubtedly increase both the emotional and financial cost exponentially. At Broder & Orland LLC, we hear horror stories of mediations that have dragged on for years, as one spouse constantly canceled appointment, failed to produce necessary documents, or refused to complete the Financial Affidavit. Since a mediation occurs outside of the courtroom, a party cannot file a Motion to Compel or a Motion for Contempt for failure to provide information. Without the power of the court, a spouse who wants to move the process along is often powerless to compel his or her spouse to the negotiating table.
The above is not intended to scare people away from mediation, as it works wonderfully for many couples, and we have successfully mediated many divorces at our office. At Broder & Orland LLC, we believe it is important for a person contemplating divorce to fully understand the various options available before proceeding with a major life event. More on Mediation