Monday, July 11, 2011

Divorce in a way!!!

Getting Your "Divorce in a Day": No Way....

There is one local lawyerwho specializes in bashing the legal profession, and bragging about the ability to handle a complete divorce in a day: Mediating a settlement, gathering the financial records, drafting all the documents, having an agreement signed, and the case ready for filing with the court. Sounds attractive - especially if you are rushing to get an agreement signed.

That attorney brags of a 100% success record. Unfortunately, the claims are not justified by experience. While that attorney may be able to claim to have talked the parties into a settlement and signed most of the documents in that day, not counted in those bragging rights are the many cases that have later been set aside by a judge or by stipulation because they were unfair, or entered into without sufficient understanding of the law or facts. The same person instills fear in potential clients by telling them that letting some other lawyer near their case will end up costing them tens of thousands of dollars, making outrageous claims of the cost of the average divorce.

And the saddest part is that the work is of low quality, and often could have been handled more competently at lower cost. Two mature, reasonable people, can mediate with a competent mediator inexpensively, and do it right: They don't need to pretend they can or should wrap it all up in a few hours. Typically in my practice, we meet 2 or 3 times over a couple weeks; by the time we are done, each knows his or her rights and feels comfortable with the agreement. And we strongly suggest they at least consult with an attorney before signing.
As a concept, it sounds nice that two reasonable people who know what they are doing can go to an attorney, polish the rough edges off their agreement, and have all the paperwork completed quickly, efficiently, and cheaply. Unfortunately, that isn't what happens in practice when they try to do it in a day.

Mediation CAN be a quick process. But one day?!?!?! Never say never, but that's virtually unheard of.  If the parties already know what they want to do, the big issue for me as mediator is to ensure they both understand the legal and practical effect of what they are doing. I don't like them leaving my office not knowing their rights. I am trying to do more than just bang out an agreement - I want them to leave believing it fairly addresses their concerns and that they have considered the options.
If you have assets, do you really know what they are worth? Do you know as much about them as your spouse? Are you giving up pension rights in return for something else? Are you giving them up just because you didn't know you could get them, or you didn't think they had much value? Do you really know what rights you have under the law? Do you have equal bargaining power with your spouse, including an understanding of your respective emotional needs and problems and how they impact the negotiating process?

A good mediator ensures that all of the rules are followed [and he or she knows what they are], is conscious of the power differences between a husband and wife getting a divorce, and works to ensure that both parties know their options and their rights. In the end, a competent mediator's agreement is fair, meets the needs of the parties, and much more likely to stand the test of time. And, it usually is MUCH quicker than going through the court systems and is also usually quite cheaper in the long run as well.

1 comment:

  1. The main advantage of mediation is that it keeps you and your spouse in control of your own divorce. That can make all the difference in your recovering from your divorce and moving on with your life.
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