Sometimes I will receive a call from spouses at the beginning stages of the divorce process who say they both want mediation, but are not sure whether or not they need it. What I often hear is, "Well, we pretty much have everything worked out.." or "We just need some help to finish."
These statements should be taken with a grain of salt. What do they mean? How do you know that you have covered all your bases, or whether you have missed something critical that a divorce mediator could help you resolve?
In my experience, although spouses tell me that they have everything worked out, they almost always fail to consider some very important detail(s) – which if left unaddressed – may still have them in a dispute after their divorce is final. This is especially true when minor childrenare involved.
Although you may have very good (and admirable) intentions, you don’t want to make major mistakes that can cost both you and your children down the line.
Don’t assume that just because you and your spouse are amicable with one another, that it will be easy to settle your own divorce without the help of a professional.
Through no fault of their own, spouses are usually not educated enough about the law. Let’s face it. The inner workings of the divorce process are complicated – even for the most seasoned divorce professional. This is where spouses often realize (and sometimes too late) that they should have used a divorce professional(s) to help navigate them through the muddy waters.
Here are 6 common mistakes that you will want to avoid in attempting to resolve your own divorce. Remember, you don’t want to leave important property rights on the table, potentially resulting in an unstable financial future for yourself while also not being able to adequately provide for your children’s needs:
Mistake #1: Not understanding child support.
Spouses usually ask me questions like, "What is child support? Who is child support for? Who pays child support? Can I receive child support?, and the most common, "How much child support do I owe?"
In PA, as in most states, child support is calculated based on state-mandated guidelines. It is intended to cover only basic food, clothing and shelter for a child. It does not cover a child’s out-of-pocket medical expenses, medical insurance coverage costs, extra-curricular activities, daycare, summer camp, school tuition, tutoring, etc. These are additional child expenses under a separate bucket for which parents need to have a separate agreement on how to share.
Such "extras" like these often need the help of mediation, since it’s hard to decide what expenses are necessary and what can be sacrificed (at least temporarily) in order to adjust to your new lifestyle and budget after the divorce.
Often, if these expenses are not accounted for in the marital settlement agreement, they will eventually rear their head after the divorce is finalized. The reason why they go unaccounted for is because spouses often times mistakenly assume that these child expenses are already covered in the basic state-mandated child support guideline amount.
Mistake #2: Misconceptions about entitlement to alimony.
Without the proper education and guidance, spouses almost always misunderstand what alimony is, how it works, and when it is and is not appropriate. For example, alimony in PA is purely discretionary and is based on a spouse’s true financial need. No spouse has an absolute entitlement to it, nor is there any formula for calculating it. Rather, alimony is discretionary based on 17 different factors in the PA law. It requires a full analysis of these factors and an understanding of the full history of the marriage in order to determine whether or not it is appropriate for a given case.
A typical misconception is when a spouse assumes that because at the time of the divorce, both spouses make a similar income, that alimony does not apply. This is not always true. A spouse’s income level at the time of divorce is only one of 17 factors to be considered by the court for alimony.
Mistake #3: Belief that the divorce filing process is easy to do on your own.
If you are not familiar with your particular court’s filing requirements, the county court divorce filing process can end up being an endless quagmire of problems that can hold up a divorce decree for years. In PA, for example, although the basic filing requirements are uniform throughout each county based on state law and procedure, there are still nuances and customs that are local to each county under their own rules of court. If you and your spouse are unaware of them, you could be tied up in legal red tape for years – without a divorce decree to show for it!
Mistake #4: Failing to consider future living expenses after separation or divorce.
When you go through a divorce transition, you are (understandably) stuck in the present. And so, you could easily fail to consider what it will cost you to live in two separate households – each with your own set of expenses – after the separation and/or divorce is finalized.
This is perhaps the most critical aspect not to overlook. Lack of budget planning can have devastating effects on your ability to support yourself and your children after their separation and/or divorce is final, and as you enter into this next phase of your lives.
Mistake #5: Assuming the marital estate is always split 50/50.
This is not the case at all, just because you are negotiating your own settlement. Let’s say you are using the state law as your guide. In an equitable distribution state like PA, for example, the court retains discretion, (like alimony), based on 13 different factors in the law to decide what is the fairest split of the marital estate. This analysis is based on a number of different considerations ultimately designed to ensure that a spouse is adequately compensated from the estate in fair proportion to their financial needs moving forward. The split typically ranges anywhere between 50/50 and 60/40. Sometimes the range can be even wider. A court may conclude, for example, that one spouse has an overwhelming financial need requiring a much larger piece of the estate than an even split.
Mistake #6: Concluding you don’t need a parenting plan for child custody.
I hear too often spouses saying that they are so amicable with one another they do not need a parenting plan, and that they will work things out as they arise. Sounds good in theory. In reality, however, once the divorce becomes final and a decree is issued, there can be a shift in spouses’ attitudes towards each other in relation to their children.
This is why it is critical that you document some standards in writing at the time of divorce. If this shift does take place, you have something to fall back on – just in case. Otherwise, you could be doing your children a great disservice by not having a parenting plan in place. Studies have also shown that children of divorce need a predictable schedule and routine to help with their adjustment through this difficult life transition.
All this said, you might be truly able to handle your own affairs surrounding your divorce. These instances are more rare, though, and limited to very specific circumstances. The criteria is usually a couple with no children, very few net assets in the estate and a very short-term marriage.
As there is not much there to resolve in this type of estate, you might more easily come to terms. Here, you will just need an attorney or attorney-mediator to prepare your marital settlement agreement and then assist you with the administrative filing process in county court to obtain a final divorce decree.
From the Mediation Matters Blog of Steve Mehta. There is often a discussion of the differences in mandatory or voluntary mediation. Some people believe that mandatory mediation is not as...By Steve Mehta