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When Not to Use Divorce Mediation

Updated on May 11, 2014

Lesbian Divorce Support

When deciding not to have full representation in court could determine if you get support or not. Everything needs to be known when making decisions during divorce or separation. If you follow an ex to another state that move could disqualify you for support. Not every state in the United States gives a partner financial support after the relationship/marriage is dissolved. If you go into mediation the mediator will not look up information concerning what state will allow the support to be in affect or not. They will just work on you and your ex coming to an agreement. The difference between mediation and representation is the attorney representing you is thinking about your future, your children's future. In mediation the goal is to have the two parties come to an agreement. Figuring out if that agreement keeps you safe is completely up to you and your separate resources.

Once you move away from a state which honors spousal support for the lesbian community there is nothing keeping the person to keep paying. If they stop paying then there is for the most part nothing that can be done. Sometimes the lawyer representing you in the new state can look at any documentation and fight for support to continue. In mediation, a lot of mediators do not advice their clients to get anything in writing. They prefer to do everything by verbal agreement. Nothing immediate can be done when a verbal agreement is broken. If you want to create law, start working with the local GLBT community and their lawyers in bringing a case to court then you could do that in some instances. Most of the time the person who is losing the support is not in the financial situation to take on the state's view of marriage and support.

Deciding to Leave a Relationship/Marriage

Whether you are leaving a marriage/relationship after a few years or after many the decision is an important one. How you leave can and will affect how you and your children, if you have any will move forward. Your decision to use mediation will not only affect you in the months to follow but years. A divorce can be freeing in many ways but it can also be a devastating choice when it comes to protecting yourself legally.

We all want to end things well. Even after very competitive games we learn at a young age to tell the opponent 'good game' as we pass each other after the game. During school if we fight with our best friends we work hard at fixing it before another day passes. When we go to bed at night a lot of us in relationships will try not to end the night still angry at our spouses. It makes sense that when we divorce or end long term relationship some will try to use mediation as a way to prevent those horrible scenes we have heard and watched over the years as Hollywood depicts what a 'nasty divorce' looks like. We try our best not to have a nasty divorce. Mediation has become popular in couples who want to remain friendly, those who have children, those who want to avoid any hostile courtroom environment. Everyone will tell you that mediation saves the friendship, the unbearable involvement with attorneys.

People that offer that kind of advice often have not been through a divorce. Some come from a place of not ever having to worry about children, about how you are going to feed, cloth and provide housing all on your own.

Although not having communication is a bad thing, allowing someone not to represent you is a mistake in some cases. When it comes to your future, the future and happiness of your children it is best to always have someone represent you. There are some instances where being warm and fuzzy will not take care of you and your children.

Mentally Ill Spouse Divorce

Another reason not to use mediation is when you are divorcing/separating from a spouse who is mentally ill. When divorcing/separating from someone who is not mentally ill is not easy. When divorcing someone dealing with mental illness the process is much more difficult. If there are children involved there could be concerns about the children's safety while with that parent.

Depending on the type of mental illness discussing choices within a mediators office may not hold true for them. Many times those who suffer from mental illness will agree to something and then change their mind when they no longer feel they want to uphold that agreement. When making an agreement could depend on how long they remain on their medication. This could be something you work out in court but in mediation it is them at that moment relying on how they feel and that could change within minutes,hours, days or months depending on the illness.

When separating/divorcing someone who is mentally ill, their illness need to be brought our in the beginning. Waiting until they do something that causes legal action can delay a correction. Waiting until later to bring up concerns will only draw suspicion from the judge and attorneys instead of understanding that you have already attempted to work with the person without being in court. Things which are discussed in mediation cannot be brought against the other person, unless it was documented by the court. If the mediation is strictly done in an office between you, your ex spouse and the mediator nothing will hold that up. When the judge sees you in court after something your ex has done and you bring up the mental illness or behaviors which might be safe all they see is someone who at first did not have a problem with their ex and now they do and they are spreading all sorts of accusations around their mental illness.

It is best to make sure you and your children are taken care of when divorcing/separating from someone who is affected by mental illness. Waiting until they get off their medication or do something unsafe is not the time. Although attempting to work things out in mediation, in the long run you will end up in court and with a harder battle due to the mediation agreement. Even though it is frightening at the time and you may hear lots of horrible stories about lawyers and how bad going to court is, waiting is even worse. The battle will all be uphill and your concerns will not be heard without a judgmental thought. Since the battle will be harder, the initial thought of keeping the divorce/separation peaceful and less costly no longer applies. The attorney fees, time off work to attend hearings and the long duration of everything will take a much longer tole than had going through the courts been done in the first place.

Child Support

When going through a divorce if there is a possibility you will be relocating to another state with your ex going through mediation would not be the best way to find out the laws in other states. Not every state has the same laws concerning child support and the amounts of support. Some states are very friendly to the primary caregiver of the children and others are not. Child support can range from a thousand dollars per child to six hundred per child depending on the state. Leaving the state that you are in and have been in with the children is not a good idea. During mediation the mediator will attempt to get you to move as part of the agreement, not fighting through the courts to stay. An attorney would advise you what your current state child support payment is and what the new state would issue as child support. You would find this out before moving and then having a major change in support which leaves you without funds for the children. An attorney would focus on how to have the children remain in the same living environment and then comparing the places for you so before making a decision you are well educated about the choice you are making. In mediation the mediator does not look up information for the two parties. They will not focus on keeping the kids in the same environment they have been in, instead the focus on resolving any tension, disagreements or possible court trials.

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If there are children involved in the divorce/separation mediation could prove to be the easy fix at first but then costly in the long run. During mediation it is encouraged to have flexibility for custody, allowing each parent to come and go as they please when want. Although not having a schedule will work for some it can be disruptive and when combined with a spouse who is mentally ill, custody issues can arise and leave a parent in the dark about how to see their children. If there are not guidelines one parent can deny the other the right to see the children. The denied parent would then have to seek our representation and get the courts to step in and allow for parenting time. This happens all to often where both parties agree to have shared custody then on parent will decide to change the rules. When there is nothing legally telling each parent what the rules are then each parent can decide on their own what they want to have happen when it concerns parenting time for the other parent.

Children who are young thrive under the known recipe. When they know what time school, bedtime, and parenting time are going to be they feel more in control. They know what to expect and what time to expect it. Once again when nothing is in writing one of the parents can decide they want parenting time at times that are not good for the children. They can decide not to keep their parenting times consistent and dependable so the child can know when to expect each parent to be with them. Going through the courts allows parents to set up a schedule. If the schedule needs adjusting as they get older then the parents can discuss and have it changed, not having a dependable schedule for children is not a good option for them.

If there are parenting concerns when the child is with either parent then it should be mentioned at the beginning. Telling an attorney the issues at the beginning of the divorce will help show there are behaviors that have been happening over time, possibly even behaviors contributing to the divorce. Going through mediation the mediator will dissuade the parents from discussing and attempting to resolve any concerns about parenting or behaviors that one parent believes are not healthy to have around the children. The mediator will focus on resolving parenting time but not what the concerns are about each parent. Mediation stays away from attempting to work on issues which might have caused the couple to get where they are in a divorce and attempts to get the couple through it quickly and in some points of few with less cost.

Be sure when going through a divorce and children are involved to make sure any concern you have is brought up immediately. Make sure the children have an excellent schedule which will help them adjust to a divorce.


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