Sometimes divorce and separation can be a true shock, a rug-pull, that catches you without any time to prepare. But even if you’re the one filing for it, if you’ve been thinking about this choice for months and years, you can surprise yourself to be going through with it. The fact is, outside of pulp noir novels, no one standing with a loved one in front of a priest or a justice of the peace plans to end up here, mired in the confusing, stressful, and lonely process of divorce.
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In most cases, you’re only going to feel more disoriented in the weeks and months after you serve or are served your divorce papers. Soon you’ll be swimming in Latin phrases like pendente lite and ab initio, and hacking a path through acronyms like MSA, QDRO, IRA, and ICMC. You may end up discovering things about your spouse that surprise you, like hidden bank accounts and spending habits and even whole businesses. You’ll be forced to confront your own values, and make tough decisions about what you want to spend, to discover, to compromise, and to fight. If you have children, that ambient background-worry you know that constant drone-note of concern for their safety, their happiness, their future, will rise in pitch and volume. The following sections discuss the differences between divorce, separation and mediation.
Divorce
Divorce can be a debilitating atmosphere. You may want to rush through the divorce as quickly as you can. You may think that you want to punish your spouse. Or you may want to pass most decisions off to your attorney and withdraw from the process as much as possible.
Divorce is adversarial. Excepting the rarest cases, when spouses have no disagreements whatsoever, the fact that one party has filed for a divorce essentially splits a former team into two opponents. How you fare in the divorce process, then, will depend more than anything else on the team that you now form around yourself. You can’t afford to leave the decisions ahead to anyone else – especially if you have children – and the first choice you get to make is picking your attorney. If you can find a good listener, a coolheaded counselor, and an advocate honest enough to inform you of costs, risks, precedents, and strategies, to shape your expectations and help you decide when to compromise and when to fight, you’ll stand a much better chance of securing your assets, protecting your children, and smoothing the road ahead.
Before you pick your attorney, you might want to educate yourself about some of the common complications and outcomes of divorce cases in Saratoga, New York, and start to approach the questions that are sure to come up. Anything you can do to answer these and start planning will help you enter more confidently into this difficult effort ahead.
Summary:
- Divorce is the process of the legal dissolution of a marriage by a court or another competent and authoritative body. A divorcé or divorcée is not legally married.
Legal Separation: An Alternative to Divorce
Couples who find it impossible to live in the same household but have an interest in maintaining their married status can file for legal separation. A separation agreement is a contract between spouses settling the same issues a divorce would cover: separate living arrangements, the division of assets, alimony, child custody, and child support. The difference is that the separation agreement avoids a court judgment, and it doesn’t end the marriage. After signing a separation agreement, the spouses remain married and cannot legally remarry. There are also consequences worth considering before filing taxes as “married but separate.”
There are several reasons to consider legal separation as an alternative to divorce. Legal separation:
- Provides spouses with time apart, to decide whether divorce is appropriate.
- Allows spouses to remain covered under family health plans.
- Provides a remedy to marital discord for people whose religious views reject divorce.
- May permit military spouses to remain married long enough to qualify for benefits under the Uniformed Services Former Spouse Protection Act.
- May allow spouses to remain married for the 10 years or more necessary to qualify for certain Social Security benefits.
- Allows a spouse to file for New York no-fault divorce after a year of separation.
You do not need a separation agreement to obtain a no-fault or uncontested divorce, but, one year after filing the separation agreement, either spouse may use that document to request a no-fault divorce.
A separation may not be the best route to this no-fault divorce, though, especially if you’re concerned about protecting your assets. The clock has been effectively “running” from the date of the separation to the date one spouse files for divorce. Any income earned, assets acquired, or investments appreciated during that year will go into the marriage “pot” and be subject to distribution.
Summary:
- A separation is when a couple remains legally married but live apart. This is often an alternative for those couples who hope time apart will lead to reconciliation, or who disavow divorce on religious grounds, or who remain legally married for benefits, like health insurance.
Mediation: An Alternative to Litigation
You might think of mediation as forward-looking and solution-setting, and litigation as backwards-looking and blame-laying. Divorce mediation may be a cost-effective and time-saving alternative to litigation. It’s a way to bypass the formality, expense, and uncertain outcome of a trial, and can encourage amicability and cooperation – the parties have more control over their outcome, including the division of assets, child custody, child support, and alimony.
After the mediation, your mediator will prepare a Memorandum of Understanding (MOU). This is not a legally binding document – it is only a summary of the issues you discussed and the agreements that you reached. Each party will bring this memorandum to his or her respective attorneys who will then draw up a legally binding document based on those terms, assuming there are no major objections.
It’s important to note before you enter the mediation process that a mediator cannot offer legal advice to either party, and can’t even suggest an outcome. (And really, even if mediators could offer legal advice, no one person could give two spouses all the counsel that each needs.) Because of this, the dominant party in the marriage is generally the dominant party in mediation.
You can’t afford to enter mediation without an advocate and advisor. You don’t need to spend great sums on legal assistance during mediation – remember, you should be saving money by avoiding a trial – but you do need some guidance. Choose an attorney who can help coach you for your mediation sessions, helping you to draw up an outline of the outcomes you desire, look for “global” solutions, and avoid getting mired in minutiae.
Summary:
- Mediation is a means to get a divorce. It is a smart alternative to litigation for many married couples. It is far less costly and more constructive when compared to litigation.
Whether you are looking into a divorce or separation, mediation is often a cheaper and smarter route than litigation. Contact one of our divorce attorneys at Jean Mahserjian, Esq, PC to help guide you through the process.
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