Long Island Family Law and Mediation Blog
When an inquiry comes in for someone inquiring about getting a divorce, someone from my office attempts to ascertain from them whether they are interested in using our office as a neutral divorce mediator. If they’re interested in mediation, we invite them to bring their spouse to come in for a free initial consultation to meet with me. We explain that I do not, at least initially, meet with the couple one on one, or have an initial consultation with either one of them before meeting the couple together. The consultation is usually up to a half hour in length, although some couples choose to immediately begin mediating that day after the initial consultation.
I might start by telling the couple that I am a divorce lawyer, but in a divorce mediation, I do not act as the lawyer for either side. I inform them that it is recommended that each of them hire and use their own individual review attorneys. I explain that review attorneys are the individuals that will explain the law, their rights, and advise each of them. A review attorney might say, “This is a good deal” or “You might want to change this deal a little bit” or “You won’t do better in litigation” or “You will do better in litigation”. Either side could prepare for mediation sessions, prior to each session, with their review lawyers. They can then debrief with the review attorneys after sessions and prepare for the next. If not beforehand, the time to consult with a review attorney would be when an agreement is drafted. I might mention that in the perfect world everyone uses review attorneys, however, the reality is that not everyone takes me up on that recommendation. I am not sure of the exact number but perhaps half of the mediating individuals use review lawyers and the other half do not. The half that do not perhaps believe that they have educated themselves on the issues and think that the mediated agreement is fair and are ready to do it. Either way I do tell them that review attorneys are recommended but usually not required (there are exceptions).
I explain that once we start, the process is mediation sessions that I charge at my hourly rate and the cost is pro-rated for actual time. For example, if the couple only mediates for a half hour, then they only pay for a half hour of time at the end of that divorce mediation session. I do not ask for a retainer for mediation (although many divorce mediators do). I explain that once we reach a consensus on all the issues that need to be agreed upon in order to make a comprehensive settlement agreement, that will allow the couple to then get an uncontested divorce, that I can shift to my role as drafting attorney. As a drafting attorney I put together a separation agreement, that the couples can then come back to execute once it is in approved form. I offer flat rates for separation agreements and I will usually quote an estimated range of costs for that flat rate, though I mention it is only an estimated range as the cost will depend on the complexity involved with each specific couple’s agreement. I inform them that once the agreement is signed, if the couple is ready, we can then move on to the uncontested divorce.
The couple is informed that the topics that we must cover in divorce mediation include grounds for the divorce. Almost invariably, I inform the couple, mediating couples utilize the “no-fault” divorce grounds which has been available in New York since 2010 which provides that the marriage has been irretrievably broken for at least six months. It is neither the Husband nor the Wife’s fault, rather it is the marriage itself that is broken, thus “no-fault”. Next, if there are minor children under 18, we need to tackle custody and parenting time. Child support and the payment or waiver of maintenance (alimony) needs to be addressed. Finally, equitable distribution of marital assets and marital debt needs to be agreed upon. I explain that there are a lot of details in each category, and, depending on the couple, some of these details are explained a little further at this time.
I point out that some couples stop or pause at legal separation for various reasons that we can go over in the mediation. A common reason that a couple might do a legal separation, for a period, before going forward with their uncontested divorce, could be to allow one of the spouses to stay on the health insurance plan of the other. I point out that I offer flat rates for the uncontested divorce which usually will be the same flat rate that we use for the separation agreement. While I discuss fees, I point out that some couples will need a Qualified Domestic Relations Order(s) (QDRO(S)) in order to distribute retirement accounts if that is being done with the couple. Some couples do not distribute their retirement accounts and at times, depending on the type of retirement account or the administrator of their retirement plan, a QDRO is not required to distribute the account. The reason I mention the QDROs at this time is if the couple utilizes my office to obtain their QDRO(S), we charge an additional flat rate for overseeing the process and submitting the package and request to the court to obtain the Judge’s signature on the QDRO. A third-party company drafts the QDRO. I point out that we do not make any money on third party fees, like the third-party company’s fee for drafting the QDRO or the court filing fees. Rather these fees are passed onto the customers.
I usually then take any general questions from the couple about what I went over in the free initial consultation. These questions should be limited to the process in general or the topics that need to be covered. The specifics of their situation will be addressed once we start the mediation sessions. I usually end the free initial consultation by leaving the couple alone in the conference room to consider whether they want to start mediating right away, to pick another day to start, or to think about it and call us back if/when they are ready to mediate with us.
While I have just set forth what I would generally cover in a free initial consultation for divorce mediation, it is important for the couple to come in and meet me so that everyone can see if I am the divorce mediator for them and if they are comfortable with the process. Please, feel free to contact us to schedule your free initial consultation. It will be our pleasure to talk with and meet you.