Ten Frequently Asked Questions about a NO-FIGHT DIVORCE
What is a NO-FIGHT DIVORCE (NFD)? A NFD is an uncontested divorce wherein the parties agree to the following: a) the divorce is a good idea, b) the assets and debts are divided by terms reached by the parties themselves not a judge. The agreement made by the parties is then submitted to the court for approval and final judgment ending the marriage.
What is Mediation in a NO-FIGHT DIVORCE (NFD)? Mediation is the attempt to help parties hear one another, to minimize the harm that can come from disagreement (e.g. hostility or demonizing of the other party) and to find a way toward a compromise or mutually agreed Marital Settlement Agreement.
What are the benefits of mediation? Cost While a mediator may charge a fee comparable to that of an attorney, the mediation process generally takes much less time than moving a case through standard legal channels. While a case in the hands of a lawyer or a court may take months or years to resolve, mediation usually achieves a resolution in a matter of hours. Taking less time means expending less money on hourly fees and costs. Confidentiality While court hearings are public, mediation remains strictly confidential. No one but the parties to the dispute and the mediator or mediators know what happened. Confidentiality in mediation has such importance that in most cases the legal system cannot force a mediator to testify in court as to the content or progress of mediation. Many mediators destroy their notes taken during a mediation once that mediation has finished. The only exceptions to such strict confidentiality usually involve child abuse or actual or threatened criminal acts. Control Mediation increases the control the parties have over the resolution. In a court case, the parties obtain a resolution, but control resides with the judge or jury. Often, a judge or jury cannot legally provide solutions that emerge in mediation. Thus, mediation is more likely to produce a result that is mutually agreeable for the parties. Compliance Because the result is attained by the parties working together and is mutually agreeable, compliance with the mediated agreement is usually high. This further reduces costs, because the parties do not have to employ an attorney to force compliance with the agreement. The mediated agreement is, however, fully enforceable in a court of law. Mutuality Parties to a mediation are typically ready to work mutually toward a resolution. In most circumstances the mere fact that parties are willing to mediate means that they are ready to “move” their position. The parties thus are more amenable to understanding the other party’s side and work on underlying issues to the dispute. This has the added benefit of often preserving the relationship the parties had before the dispute. Support Mediators are trained in working with difficult situations. The mediator acts as a neutral facilitator and guides the parties through the process. The mediator helps the parties think “outside of the box” for possible solutions to the dispute, broadening the range of possible solutions.
What if we can’t agree in the mediation? If you’re unable to agree to a mediated marital settlement then your case will have to be decided by a judge.
Who decides what happens with the kids in a NO-FIGHT DIVORCE? Both parents decide. A successful mediation between the parties will result in a fully enforcible Parenting Plan which includes Custody/Visitation, Child Support and related orders. Parents may need help from Custody Evaluators, Family Therapists or other third parties in addition to the mediator in reaching an agreement.
Will I have to move out of the house? That will depend upon what you and your spouse decide. If you’re unable to agree on certain issues the judge will have to decide those particular issues. The less the judge has to decide the cheaper, quicker and more likely a particular decision will benefit you.
Why isn’t mediation more popular? Perhaps, there is a perception that mediation is unpopular because we don’t hear the term as often as we hear terms like “courtroom battle, bitter divorce, etc. but the concept of mediation or alternative dispute resolution has been around for thousands of years and is used daily in courtrooms around the world. Mediation is popular and continues to gain popularity because it works.
Can spouses take money from a joint bank account to pay attorney fees for a NFD? Generally, yes, to the extent community property funds are allowed to be used in a standard contested divorce. Mediation in divorce is exactly the same. However, it is essential to first seek legal advice before relying on anything you read here.
Do I have to participate in mediation even if I think a judge will be better for my case? No, unless the judge orders the parties to attend mediation. Many court systems now require disputants to attend mediation in Custody/Visitation before the judge hears the case.
Will the mediator represent me or my spouse in court? Unless the mediator is also a licensed attorney he/she is unable to represent anyone in court. The mediator may help facilitate getting your Marital Settlement paperwork completed and filed with the court but should not practice law by giving legal advice and/or appearing in court on behalf of clients.
