What is Divorce Mediation?
Divorce mediation is a dispute resolution process facilitated by a third-party neutral. A divorce mediator can be an attorney, but they do not have to be an attorney. Some divorce mediators are not attorneys. A divorce mediator does not give legal advice to either of the parties. The divorce mediator tries to help parties come to a mutually agreeable resolution. The parties typically agree to and sign a Memorandum of Understanding that resolves the terms of their divorce.
When is Divorce Mediation appropriate?
Divorce mediation may be appropriate in the following situations:
When spouses still trust each other. These spouses are not worried about the other hiding assets.
When spouses are able to communicate with each other. Spouses need to be able to communicate with each other to go through the divorce mediation process.
When spouses are on an even playing field financially. Spouses who are both working and have similar earning ability.
When there is no power imbalance in the marriage. If one spouse is controlling the other spouse or the finances, then divorce mediation is not appropriate.
When spouses agree on getting a divorce or legal separation and all of the terms.
Divorce mediation may not be appropriate in the following situations:
If there are disagreements regarding property and debt division, maintenance, child support, parenting time, and decision making.
If one spouse does not agree to obtaining a divorce or legal separation, then divorce mediation is not appropriate because you cannot make them participate in the mediation process. If you file a divorce or legal separation case, then the other spouse is required to participate in the case, otherwise, orders can be entered against them.
When one spouse is the “breadwinner” or earns most or all of the money in a marriage, divorce mediation may not be appropriate because the non-breadwinner spouse may not know what marital property exists, what their legal rights are to marital property, and what amount of maintenance and/or child support is appropriate in their situation. A divorce mediator is not going to conduct the necessary investigation and legal analysis to determine what marital property exists and what the non-breadwinner spouse could legally obtain in Court. An attorney providing legal representation will analyze the other party’s finances closely to determine what marital property actually exists, whether more financial disclosures are necessary, and advise you on how the Court would apply the law to your specific situation.
If there is domestic violence, then divorce mediation is not appropriate because there may be protection orders in place and the parties need to be able to communicate with each other regarding their settlement. If there is domestic violence, then there is likely control and manipulation and the spouse who is the victim needs an attorney.
Why hire a divorce mediator who is an attorney?
It’s likely that attorneys who are divorce mediators have practiced divorce and family law and bring that experience to their role as a mediator. It’s helpful to have an attorney mediator who has practiced divorce and family law because they have likely taken divorce cases to hearings in the local jurisdiction, which gives them the insight to know how judges typically rule in divorce cases and how cases typically settle in line with what judges order.
A number of divorce mediators who are not attorneys get into divorce mediation because they have been through a divorce themselves and their experience with divorce is through their own personal case. A divorce attorney has likely settled and litigated many divorces and brings that experience to their role as a mediator.
Why hire a divorce attorney instead of a divorce mediator?
A divorce mediator, whether an attorney or not, is not advocating for your best outcome in your case, but is acting as a facilitator to help the parties reach a mutually acceptable agreement. A mediator is a neutral third party who does not give legal advice. If you hire an attorney to represent you, then the attorney is advocating for your best outcome throughout your case. Attorneys often work to settle divorce cases without the need for court. Read more about how to settle a divorce out of court in Colorado.
Hire an attorney to review your potential settlement in divorce mediation
If you choose the divorce mediation route, you should hire a divorce attorney to review any potential settlement that you may agree to before signing it. The divorce attorney will likely ask to review both parties’ Sworn Financial Statements and financial disclosures and the draft Settlement Agreement. Divorce impacts all of the most important parts of your life, including your parenting time (if there are minor children), your housing, your retirement, and how much money you have to live on each month. With all of these issues at stake, it’s important to have an attorney review your potential agreement and advise you on whether the agreement is in your best interest.
If you hire an attorney does that mean you have to go to a contested hearing?
Hiring an attorney to represent you in your divorce or legal separation does not mean that you will end up litigating your case in Court. The majority of cases settle out of Court. The Courts also require that parties attend mediation before setting their case for a final hearing. In many Colorado Courts, judges will not hold a final hearing if the parties have not mediated the case. So, if you hire an attorney for your divorce or legal separation case, you may end up mediating anyway if you cannot reach a resolution.
Summary of Whether to Hire a Divorce Lawyer or Divorce Mediator
Divorce mediation can be appropriate when the parties agree on obtaining a divorce or legal separation, agree on almost all issues, can communicate with each other, there is no power imbalance, the parties are on an even playing field financially, and there is no domestic violence. It’s best to hire a divorce mediator who is an attorney. If you choose divorce mediation, then you should have your potential settlement reviewed by your own divorce attorney.
Learn more about Colorado divorce:
No Legal Advice Intended: This information is not intended, and should not be taken, as legal advice on any particular set of facts or circumstances. You should contact an attorney for advice on specific legal problems.
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