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Family courts and divorce lawyers in New Jersey understand how contentious divorces cases are. In the middle of being upset, angry, and fearful; it’s difficult to fight tooth and nail in front of a judge. Divorce contests place a lot of stress on the spouses. They are extremely hard for children. Divorce contests are also expensive. That’s why many judges and family lawyers recommend divorce mediation. Mediation is generally calmer, faster, less costly, and less bitter than a trial before a family law judge. However, it is important to know what happens when divorce mediation fails.
Why divorce mediation doesn’t work
The essence of divorce mediation is that a neutral third-person is called in to try to resolve the disputes. The neutral person is typically an experienced family-lawyer. The mediator then works to try to forge a settlement. Generally, the mediator does not decide the issues and does not submit a recommendation to the family law judge. But what happens when divorce mediation fails? If divorce mediation and other amicable solutions fail, then the divorce issues (divorce, equitable distribution, custody, child support, and alimony) are submitted to the family law judge.
Mediation requires that both spouses are open to some compromise. If a spouse is fully focused on his/her anger or they are simply too far apart on how the property should be divided and who should raise the children – then mediation will likely fail.
Mediation works with preparation. Spouses need to work with their lawyers before the mediation to prioritize their concerns. Which is more important – keeping the marital home or keeping a business and retirement benefits? Are any tradeoffs possible? What are the essential parts of a parenting plan for children? Spouses who don’t plan for the mediation to be successful are less likely to resolve their disputes through mediation.
Spouses should understand that mediation may require several sessions. In addition, it is important to think about what happens when divorce mediation fails. A first session may just help identify where the disputes are. Subsequent sessions may be needed to fully resolve those disputes. In many divorce cases, time can be an effective healer. Spouses need to accept that their marriage is over before they start focusing on their lives after the divorce. Mounting bills, especially if the spouses are living apart, can help force the parties to face their difficulties. Another thing to consider is the cost of mediation and what happens when divorce mediation fails?
What Happens When Divorce Mediation Fails?
There are different options if the initial divorce mediation doesn’t work. These options generally depend on how much the spouses are willing to listen to each other. The alternatives to a failed mediation include:
Selecting another mediator. When divorce mediation doesn’t work, it may be because the mediator is biased or isn’t effective. In this case, selecting a new mediator may be an option.
Negotiation through the spouse’s lawyers. This process may work if the mediator helped clarify the disputes but wasn’t able to fully resolve them. A mediator may have helped the spouses create a parenting plan, but may not have helped you and your spouse decide how to divide the marital home and the retirement benefits. After the initial involvement with the mediator, negotiation between the lawyers for the spouses may be the answer.
Collaborative divorce. Collaborative divorce is a divorce resolution alternative. Here, the spouses work with their lawyers and with other professionals (such as financial professionals and child psychologists). Collaborative divorces are less formal than mediations and are often successful because the professionals are people both lawyers have worked with.
Litigation. When all the issues can’t be resolved, then the spouses do need to have them resolved by a New Jersey family law judge. Most divorce cases do settle. This is because court trials are expensive and time-consuming. Judges prefer settlements because the spouses know their family finances and family dynamics better than a judge can know.
Still, judges will make decisions when the spouses can’t agree. It’s important to think about these different items when thinking about what happens when divorce mediation fails.
The division of the marital property is based on numerous factors which were determined by state law, court cases, and the judge’s experience with other cases.
Custody decisions are made, normally after a review by a court child psychologist.
Alimony and child support decisions are also made based on many factors too.
Generally, the contributions of each spouse to the marriage (including non-financial factors such as raising the children) are considered. The economic circumstances of each spouse is a factor. The length of the marriage is considered. Your lawyer helps identify and assess all these factors. Spouses need to understand each judge also brings his/her own views about marriage, divorce, and families to their decision-making process.
At DeTorres & DeGeorge Family Law, our divorce lawyers understand what happens when divorce mediation fails and how most judges resolve divorce disputes. We work to understand each spouse’s needs and goals. We use these understandings to forge solutions that help protect and secure our client’s future – their life after the divorce. We understand when mediation works, when collaboration works, and when the only solution is to try your case before a judge. To discuss your divorce rights and options, and to learn about what happens when divorce mediation fails, call us at 908-691-2104 or complete our contact form to schedule an appointment. Our New Jersey offices are located in Clinton and Morristown.
