Mediation And The Legal Process Of Divorce
| Formal Legal Process | Traditional Approach | Mediation Approach | |||
| 1. Pleadings | |||||
| (Filing of Pleadings done by consent of both parties after/before or during the mediation process.) | |||||
| -Divorce Complaint filed by one party | Marriage "irretrievably broken" | Marriage "irretrievably broken" | |||
| - "Service" must be obtained on other party for court jurisdiction | Service can be by sheriff or adult (not a party to the action) on "respondent" party at home or at work or by certified mail | Parties agree when the complaint will be delivered and Acceptance of Service signed and filed | |||
| -Answer may be filed | |||||
| 2. Issues | |||||
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(1) Immediate Issues (2) Personal Property: cars, accounts (3) Real Property (4) Business Interests (5) Retirement Assets (6) Parenting Responsibilities (7) Financial Responsibilities (8) Tax Planning (9) Professional Fees Attorneys Financial Planners Business Appraisers |
Court determines/Attorneys negotiate Interim orders: Special Relief, Restraining orders "Marital vs. Non-marital" property "Custody - joint/sole" Child support/maintenance, health insurance, etc. | Parties decide Parties may agree to make interim understandings a formal court order Parties decide what is fair in light of their circumstances Parenting responsibilities - time/decisions Allocation of financial responsibilities | |||
| 3. Fact Investigation | |||||
| Formal discovery | Rule of no legal proceedings (no formal discovery while parties are in mediation) | ||||
| -Motions to produce | Rule of Full Disclosure: Gathering, Evaluation and Corroboration of Data | ||||
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- Interrogatories - written questions answered under oath -Depositions - formal questioning of party/witness by opposing attorney |
-Inventory and analyze data and information - Review tax returns, profit and loss statements, pension plans and other financial information to corroborate and cross-check data - Agree on process for appraisals and valuations | ||||
| 4. Court Appearances | |||||
| - Conciliation or settlement conference: attorneys meet with judge | (Agreement mediated by parties; reviewed by attorneys) | ||||
| -Attorneys negotiate agreement on behalf of clients | |||||
| -Trial (1 day to 3 weeks) | No hearing | ||||
| ENFORCEABILITY | Decree of Divorce/Order of Modification as negotiated by attorneys or determined by court Enforceable court order; parties may not comply if they feel coerced into settlement. | ||||
| TIME FRAME | 6 months to 2 1/2 years dependent on court timetable | 3-6 months dependent on parties¹ timetable | |||
| 5. Post Divorce | |||||
| Appeal | No Appeal | ||||
| Modification action custody/child support or maintenance | Parties review and modify agreement as necessary or circumstances require | ||||
| Increased likelihood of return to court | Parties less likely to return to court | ||||
