MEDIATION: PRE AND POST DIVORCE

Mediation is a voluntary and informal process by which parties to a conflict (such as divorcing or separating spouses) work together, with the assistance of an impartial and trained third person (the mediator) to resolve and reach agreement on the outstanding issues in dispute. In divorce mediation these include property and debt distribution, maintenance, and, where relevant, child support and custody. The mediator does not decide the issues for the parties but works closely with them to explore different settlement options consistent with their respective interests. Mediation does not bind the parties unless both of them agree to the terms of the settlement. Attorneys may or may not be present during the mediation sessions, depending on the needs and preferences of the parties.

CONSULTING AND REVIEW ATTORNEY

A party to a mediation will often feel the need to have the support and assistance of an attorney. A consulting attorney fulfills that role by providing the party with the knowledge of the law relevant to the issues in the mediation as well as by together developing a strategy to constructively present the party’s interest and perspective in the mediation sessions. A review attorney’s role is more limited than that of the consulting attorney. Unlike a consulting attorney who provides guidance and input to a party earlier on during the mediation process itself, a review attorney becomes involved in the mediation at its end prior to the signing of the settlement agreement. A review attorney’s role is not to undo what has been agreed to in the mediation, but to ensure that the terms of the agreement reflect the party’s understanding of its content as well as that they come within the range of  reasonable potential court outcomes.

ARBITRATION

Arbitration involves the submission by the parties of the issues in controversy to an independent and unbiased third person (the arbitrator) for decision. Arbitration is also much more formal than mediation. In arbitration, parties participate in a hearing where they can testify and present evidence. Also, unlike mediation, the parties agree in advance to be bound by the decision of the arbitrator. The arbitrator’s decision can be appealed to the court but the scope of review is very limited and the rulings are rarely set aside.  In divorce arbitration, the arbitrator will rule on all issues in controversy, except for the issue of custody. Ordinarily, attorneys are present and participate in the arbitration, although parties can choose to arbitrate without the assistance of lawyers.

PRENUPTIAL, POSTNUPTIAL AND SEPARATION AGREEMENTS

New York law allows couples to contract with each other before or after marriage to determine their own financial relationships and obligations during marriage. When entered into before marriage, this type of agreement is called a prenuptial agreement. After marriage, it is called a postnuptial agreement. Both types of agreements can protect your assets from the application of the rules of property distribution which would otherwise apply upon divorce. These agreements must be “fair when made” and “not unconscionable” at the time of enforcement, and they must be signed in accordance with certain formalities.  

A separation agreement is ordinarily entered into by spouses at the end of their marriage who have agreed to live separate and apart. Like pre and postnuptial agreements, separation agreements permit spouses to determine for themselves major issues involved in their divorce, rather than have a judge make these decisions. These issues can include child custody, child support, maintenance (alimony) and equitable distribution of property.