1. What is the traditional legal process for divorce?
In traditional representation, each spouse hires an attorney to represent their side. Both attorneys meet with their individual clients to gather information, explain the law, and stake out positions. After this initial meeting, each spouse may return home with completely different ideas of what is fair and what they should expect. Often, financial information may be missing.
An attorney may commence a process to gather information known as “discovery.” This can be done informally by voluntary exchange of information. Some attorneys prefer or feel the circumstances require, a formal discovery that is supervised by the court. The discovery process can be very expensive. Depending on the complexity of the case, expert witnesses may be needed. Experts can, for example, testify on the value of marital assets or on parenting issues. Often, divorcing families need to reach some agreement on how they will handle their finances while the case is pending. This can be done by way of an informal agreement. Again, however, some attorneys file motions with the court requesting temporary orders, and the parties are often left to argue over an interim financial arrangement or a parenting plan for the children while the case is pending.
After the attorneys have agreed upon formal or informal temporary orders and they have exchanged sufficient information, then settlement negotiations should be expected. Most of these discussions are between the lawyers. Clients are seldom involved in the negotiations with their spouses, but settlement discussions should be communicated to the client. If the negotiations go well and an agreement is reached, a settlement agreement is prepared and submitted to the court for approval. If negotiations fail, then the lawyers may consider, or the court may order, mediation.
If all efforts to settle fail, then the attorneys commence trial preparation. At trial, the court will make the decisions the parties were unable to make on their own. The vast majority (probably more than 90 percent) of divorces settle. Those settlements often come too late – after significant marital assets were spent on litigation, after goodwill and respect for each other is diminished, and after the children and family have been needlessly stressed.
2. What is divorce mediation?
In divorce mediation, the mediator does not represent either party but instead tries to help both parties in a confidential settlement process. Initially, both parties meet with the mediator together. An attorney mediator is likely to gather information, explain the law to both parties in general terms and often meets briefly with the parties separately. The mediator then assists the parties in reaching their own agreement.
Mediation is a voluntary process. If either spouse does not wish to continue mediation, then traditional divorce litigation may be pursued. The vast majority of couples that begin mediation, satisfactorily complete the process and obtain their divorce.
We often handle more than a 100 divorce mediations a year and may only have one or two that do not proceed to final settlement.
3. What is discussed with the divorce mediator?
You will cover the same topics that would be covered in a litigated divorce. Issues that are up for discussion include:
- Parenting schedules and plans
- Child support
- The distribution of financial assets and financial liabilities of the couple – e.g., the house, cars, and credit card bills
- Spousal maintenance, also referred to as "alimony"
Each couple is different. One of the advantages of mediation is that it promotes flexible and creative solutions that courts and lawyers may not otherwise consider.
4. What’s the best way to select a divorce mediator?
When looking for a divorce lawyer, speak to friends, judges, therapists, and any lawyers you may know to determine who has the best reputation among professionals. Use the same common sense and due diligence that you would when hiring any other professional. Things to take into account include the mediator’s educational and professional background. Most couples want a mediator who is also an experienced attorney, so that he or she can draw upon their knowledge of the law and typical resolutions of issues if litigated. The mediator should also have significant training and experience in divorce mediation. Most of all, the mediator you select should be someone you feel you will be able to talk with openly and honestly, and who will do the same for you.
Although not essential, peer and professional recognition may be good barometers of ability. Membership in local bar groups dedicated to Family Law issues, certification by the State of Kansas, Super Lawyer designation, and other significant experiences are all positives.
5. What’s the difference between mediation and collaborative law?
Collaborative Law is a relatively new hybrid that strives to blend the best of mediation and traditional divorce representation. Like traditional divorce, both parties have their own separate counsel; however, the parties typically follow a process that is guided by many mediation principles. The parties typically engage in informal discovery. Many of the meetings and negotiations are conducted with the clients present. If experts are necessary, the parties attempt to agree and use a common expert. The attorney and the clients commit from the beginning to settlement and if they can not reach settlement, the Collaborative lawyers resign from the case and the clients must start all over with new litigation counsel.
6. Does mediation work in every divorce case?
Mediation works very effectively in most, but not all divorces.
Mediation eliminates intermediaries and gets the couple talking, in a structured, safe environment. Surprisingly, mediation may be preferable to traditional litigation even where one or both parties are angry.
Although generally well meaning, lawyers in traditional representation often intensify the anger, bitterness, and lack of trust between the parties and often discourage any communication while the case is pending.
Mediation encourages parties to recognize and let go of destructive emotions while encouraging productive communication. Divorce mediation may not work well in situations where one or both of the couple are unable or unwilling to be open and honest. It also is less effective when one or both spouses are rigid.
7. How long will my case take and what will it cost?
How long your divorce takes depends upon you, your schedule, the complexity of your situation, and the level of agreement or disagreement that exists between the two of you. In Kansas, there is a sixty-day minimum waiting requirement from the date the petition for divorce has been filed.
The length of mediation is tailored to you and your schedule. Mediation is generally conducted by me in two-hour sessions but can be longer when necessary. Sessions generally occur in two to three-week intervals. Many mediators provide evening and weekend appointments.
Hourly rates for mediators vary widely, as do rates for divorce attorneys. Most Family Law lawyers will charge at least $200 an hour, and very few charge more than $500 an hour. Most families find they save money with a mediator, even when using consulting attorneys to review agreements or to seek legal advice, for the simple reason that it takes fewer hours to reach a settlement.
I charge $400 an hour and the filing fee is about $200. I find that most families are able to complete the entire process for less than $3,500. All divorce fees need to be paid prior to the completion of the divorce. Divorce fees do not include the cost of preparing Qualified Domestic Relation Orders or other fees or expenses incurred to divide assets. Travel expenses are usually billed at 1/2 of normal hourly rates.
8. Does the mediator prepare the divorce papers?
To initiate a divorce, one spouse must file a document called a "petition" typically in the county where the parties reside. Their spouse must then file either an answer or an entry of appearance to avoid service of the petition by the local sheriff. If either spouse has their own attorney, that attorney may file the petition or the answer.
If neither party has an attorney, an attorney-mediator may help either spouse to file their own petition and an answer or entry of appearance. In doing so, the mediator is not representing either spouse and is only helping the parties to prepare the necessary forms to get the matter commenced. When the mediator prepares the petition and the answer for the parties, the parties are in the court system pro se, which means without a lawyer.
9. What’s better for me: Traditional representation, mediation or collaborative law?
Although no exact figures are collected, a growing percentage of families elect to divorce entirely on their own. Of those that seek some legal assistance, it is safe to say that 75% percent of those divorces are still accomplished in a traditional legal framework. Although rapidly growing, mediation is still grossly underutilized. Likewise, Collaborative Law has been slow to “catch-on” notwithstanding its considerable advantages.
The divorce process is hard, but choosing the right course will greatly impact the extent of the difficulty. Mediation and Collaborative Law should at least be considered by most families. Some of the negative factors occasionally associated with mediation can often be addressed within the process. For example, while mediation may not be as desirable for a party that has low confidence in their own ability to make decisions, this negative factor for mediation can be de-emphasized if that party has the benefit of consulting counsel throughout the process. In some cases, often where clients feel that the playing field is not even, consulting counsel attend mediation sessions.
10. Do we have to use an attorney to put our divorce through court?
Although not legally required, having representation, or a consulting attorney, during mediation is strongly advised for a number of reasons.
First, the mediator can not give you legal advice. The mediated agreement will be stronger to the extent both parties understand exactly what they have given up as well as what they receive. There is often a natural, but healthy tension between lawyers and mediators. In a traditional divorce, both attorneys want their clients to get a “good deal.” However, if there are limited resources available for division, a good deal for one spouse might equate to an unfair or “bad deal” for the other spouse. In mediation, we are therefore seeking a fair deal for both parties, recognizing that good deals for everyone involved may not be possible.
The mediation process also emphasizes that pushing for a great deal is expensive and often detrimental to your relationship with your spouse. The consulting lawyer’s role is to give advice, respect the client’s decision to avoid an adversarial process, and help the client obtain a fair agreement. A consulting lawyer will also review any agreement prepared by the mediator to make sure that the agreement accurately reflects the parties’ agreement and will be available to assist with any required court hearings.
Typically, the mediator also turns to the consulting attorney for assistance in making sure the client understands the law and the risks in particular positions. A mediator should respect each person’s choice in selecting a consulting attorney. The use of “mediation-friendly” attorneys enables clients to strike a balance between having the cost-savings and reduced friction that a mediated divorce provides with the protection that a qualified attorney offers. Mediators are discouraged from picking or even recommending the names of lawyers.
11. How much child support will I have to pay?
Most people are not surprised to learn that the law requires parents to support their children, regardless of whether or not the parents are married to one another. Kansas has established Child Support Guidelines to assist lawyers, judges, and the public in determining a minimum child support amount for families of a given size and income level. Unfortunately, the Guidelines are complex, and understanding and applying the Child Support Guidelines can be difficult. Often through the use of specialized computer programs, attorneys are able to assist clients in demystifying the Guidelines and in understanding how they might apply to their situation.
Child support is not tax-deductible. The person paying it does not receive a tax deduction nor does the spouse receiving it have to report it as income on their taxes. See, Kansas Child Support Guidelines for more information.
12. Will I have to pay alimony? If so, how much?
In Kansas, “alimony” is called “maintenance.” Sometimes people are surprised to learn that not every divorce involves maintenance. For one thing, there has to be the need for such support and the ability to pay it. For another, there has to be a request for such support.
Typically, maintenance terminates upon the death, remarriage, cohabitation, or after a term of months. Unlike the question of child support, Kansas law does not provide worksheets or guidelines to assist in the calculation of spousal support. Some counties have local guidelines that courts will often consider but are not bound to follow. For more information, or to review the Johnson County Guidelines, go to the "Tips & Resources" page.