Before You Mediate Your Divorce

At a recent meeting between family law judges and family law attorneys in Mercer County, it was announced that the number of divorce cases filed in Mercer County had increased by roughly 7% over the last year. So while recent reports have the percentage of divorcing couples decreasing, the actual number of divorces is not decreasing, at least not locally.

One way that the courts in New Jersey have decided to deal with the increasing volume of divorce cases is to encourage those filing for divorce to utilize methods of alternative dispute resolution – such as mediation and arbitration – in the hopes of limiting those cases that must actually go to trial. In theory, the “push” for mediation and arbitration is a good idea. In theory, everybody wins – the courts get to decrease their divorce backlog while the parties get to save on legal fees and to part ways on their own terms.

In practice, however, a spouse who elects to proceed with any method of alternative dispute resolution, be it arbitration or mediation, without knowing his or her legal rights faces real financial risk. If a party does not know what he or she is legally entitled to receive in terms of support or the distribution of assets, then how does that party know whether he or she is getting a fair deal?

The most vulnerable party is usually the financially dependent spouse since the financially dominant spouse tends to oversee the family’s finances and to have a better handle on the parties’ accounts and assets. The dependent spouse may be responsible for paying the household bills on a monthly basis – but does he or she have access let alone control over more sophisticated accounts, such as brokerage or retirement accounts? Does he or she have access to the dominant spouse’s employment information, which includes information relating to the dominant spouse’s salary, bonus(es), perquisites, stock options and deferred compensation accounts? And in the event the dependent spouse does not pay the household bills, does he or she have a good idea of how much the parties actually spent on a monthly basis, including their housing, transportation and personal expenses, such as food, clothing, etc.?

Even assuming the dependent spouse has an accurate financial picture, however, the dependent spouse also needs to know what to do with that information. How much should he or she expect in terms of alimony? Child support? Property distribution? Most times, there is not just one right answer. The outcome depends on various factors, including the length of the marriage, the marital standard of living, the age and health of any children and each party, etc.

So why not just rely upon the recommendation of the mediator or arbitrator with respect to these issues? Because, while the mediator or arbitrator is typically an attorney with a solid foundation in family law, he or she is not an advocate. He or she is there to facilitate a settlement – not to represent anyone’s best interests.

It is therefore especially important for the dependent spouse to research his or her legal rights – either by consulting with an attorney or at the very least consulting the Internet and other available informational resources – before attending any mediation or arbitration session. Only then will the dependent spouse know what questions to ask, what information and/or documents to secure from their spouse, and what to reasonably expect (and indeed, demand) in terms of a fair and just outcome.