At some point during the course of your divorce, you will likely want to consider whether there is a better way to resolve the issues between you and your spouse without going to trial. In the beginning there may be a lot of conflict between you and your spouse. You may feel the need to “win” and therefore treat every issue, every motion, every proceeding in your matter as an attempt to show your spouse that your position is correct.
Or, perhaps you and your spouse are parting ways amicably. Although you are in disagreement about how your divorce should be settled, you are clear that you want the process to be respectful and without hostility. You may prefer to spend your hard-earned money on your children’s college education than legal fees.
In either case, going to trial and having a judge make all of the decisions in your divorce is not a forgone conclusion. In fact, most divorce cases settle without the need for a trial. Mediation is the process by which a neutral third party helps the parties reach agreement on disputed issues. A mediator cannot give legal advice. Rather, the mediator’s job is to help you and your spouse reach agreement on all the issues. Depending on the issues in your case, this includes resolving issues concerning division of property, spousal maintenance, child support, parenting time and legal decision making.
Once an agreement is reached, your agreement will be place in the proper form and submitted to the Court as part of a Consent Decree for Dissolution of Marriage. The Court will then sign the Consent Decree as an order of the court in order to dissolve the marriage.
If your case does not settle during mediation, what is said in mediation and the offers exchanged in mediation are confidential. Accordingly, if your spouse makes an offer in mediation that is not accepted, you may not admit that offer in court to show that your spouse had previously taken a position different than the position taken at trial. This encourages both parties to be free to talk openly with the mediator without fear that the information conveyed will be used against you later in court.
Resolving your divorce through a mediated settlement has many advantages. You can achieve a mutually satisfying agreement, a known outcome, little risk of appeal, and often enjoy significantly lower legal fees. Despite the circumstances which led to the end of your marriage, it might be possible for your divorce to conclude peacefully.
About the Authors:
Marlene Pontrelli is a Member in our Phoenix office. Marlene is a certified specialist in family law. Her practice focuses on all aspects of family law including dissolution, post-dissolution, paternity, child custody and child support matters. She is admitted to practice in California and Arizona. She is a member of the State Bar’s Family Law Practice and Procedure Committee and is a judge pro tem for the Superior Court of Maricopa County in family law. She has extensive trial and appellate experience including appearing before the Arizona Court of Appeals, Arizona Supreme Court and Ninth Circuit Court of Appeals.
Ms. Pontrelli has written several books, including as a co-author of the Divorce in Arizona book. She is a frequent lecturer in the area of family law and has conducted workshops throughout the country. Ms. Pontrelli is also an adjunct professor at The Sandra Day O’Connor School of Law at Arizona State University, where she teaches the family law class. Marlene may be reached in our Phoenix office at 602-285-5081.
Bob Schwartz is a Member in our Phoenix office. Bob has been practicing law for over 40 years, specializing in family law. He is a member of the American, Arizona and Maricopa County Bar Associations. He is admitted to practice in the federal courts of New York, Arizona, Ninth Circuit Court of Appeals, and the U.S. Supreme Court. Mr. Schwartz is a fellow of the American Academy of Matrimonial Lawyers and past president of the Arizona chapter. He serves as a judge pro tem for the Superior Court of Maricopa County in family court matters. He is a certified family law specialist by the State Bar of Arizona; is a frequent lecturer on family law and related matters; and, former member of the State Bar Family Law Advisory Commission. Mr. Schwartz has tried numerous complex business valuation cases as well as complex custody cases. He has testified as an expert in family law matters. Bob co-authored the Divorce in Arizona book. He may be reached in our Phoenix office at 602-285-5020.