Keys to Mediating Marital Property Disputes

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After accumulating items for a potentially significant period of time, many times parties do not agree on how to split up their marital assets.  A mediator can help the parties reach a resolution outside of court that satisfies both parties’ interests.

Legal Tests

One effective method that a mediator uses is to explain the law and how the judge might rule on a particular issue given that law.  The parties can then compare this possibility with the certainty of whatever type of arrangement they may be able to work out among themselves.

Most states use equitable distribution to divide a couple’s property.  Under this set of rules, the judge is left with a lot of discretion to make a division of property that is fair to the parties.  Some judges and state laws may begin the analysis by assuming that an equal split is fair.  However, there may be factors that move the judge away from this point, such as the length of the marriage, the education of each party, the earning power of each party and the custody arrangement.  Some judges may simply order the sale of all of the property and a division of the proceeds.  Some states allow the court to award separate property.  Some states suggest that each spouse should receive at least one-third of the property while others prohibit a judge from driving a spouse into poverty due to the division.  In other states, community property standards apply.  These states divide the marital property equally.

Sentimental Value

Another important consideration in the mediation of property is the emotional attachment each party has to it.  While the court is not bogged down by this consideration, this aspect can be critical in successfully mediating the case.  A party may decide to forego his or her interest in a particular item that means less emotionally in exchange for an item that has a greater sentimental value.

ADR in LGBT Issues

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Alternative dispute resolution mechanisms like mediation and arbitration have been around for years. At the same time, LGBT issues have risen in number and focus over the last several decades. These two worlds have started to merge, allowing for a less contentious process of resolving disputes involving the LGBT community. Some issues that have been successfully handled through these pathways include:

Workplace Claims

The last several decades have brought about significant and influential cases in employment law. As a matter of course, many workplace claims alleging discrimination or other mistreatment are handled through mediation or arbitration. The confidentiality of the proceedings and the more intimate fashion of ADR are often desired qualities for plaintiffs and defendant employers. In some cases of this nature, new policies are instituted to help avoid potential discrimination in the future.

Benefit Claims

Although gay marriage was officially federalized in 2015, public benefits have been slow to respond, creating confusion around eligibility for particular state and federal benefits. Dates of eligibility are often contested as the legal nature of the relationship between the parties may have been at issue.

Family Law Matters

One of the areas ripest for ADR is family law matters. Often, the termination of a long-term LGBT relationship creates different issues than an opposite-sex marriage. Many LGBT couples may have been together for years without the benefit of marriage, or they may have only recently married after living together and accumulating property for years. The traditional equitable distribution or community property rules may not bring about a just result for a couple who have built up wealth together. There may also be complicated issues involving child custody if one of the individuals who stood in a parental role did not have a legal or a biological relationship with the child. In these situations, ADR may provide more appropriate arrangements and remedies than the legal system may.

November 8, 2016

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Types of Domestic Relations Cases Handled in Mediation

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Mediation is an alternative way to resolve virtually any family law case.  Due to the often ongoing relationship between the parties and the personal matters at stake, many parties benefit from mediating their domestic relations cases including cases involving:

Divorce

Mediation is commonly requested as part of a divorce.  Some states require parents to go through mediation if their divorce involves minor children.  Divorce often involves a number of key issues and may be less expensive when most of the issues can be resolved without the court’s intervention.  A mediator is sometimes tasked with helping the parties decide how to divide their property in a fair manner.

Parenting Plan

Mediation may be able to help parents develop a parenting plan as part of their divorce or as a stand-alone plan.  Many states are abolishing the rigid structure of having a primary custodial parent and another parent who only has time every other weekend with their children in favor of carefully structured parenting plans that allow both parents meaningful access with their children.

Separation

A mediator can help the parties reach an amicable separation if they are not yet ready for a divorce. Having a mediator in place allows the parties to create some boundaries and structures around new living situations.  The parties can agree on how to split up certain assets, debts and income while they are separated.  They may also reach an agreement regarding spousal or child support during this transition period, which may sometimes last years.

Child Support

While all states have formulas in place to determine the proper amount of child support, these guidelines may not always be appropriate when unique circumstances are involved.  Parents may be able to make decisions about support that work better for their family, such as agreeing on post-secondary education or on expenses for a disabled child.

October 28, 2016

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