Whether it's amicable or not, divorces in Utah are hard. Litigation makes it harder. But mediation can be the key to a more civil, more efficient divorce – one that allows you to move on with your life sooner than a trial would. That is not to say, however, that divorce mediation in Utah is easy. It's just more efficient and allows you, rather than a judge, to determine – through negotiation and compromise – decisions that will affect you and your family. You should go into the mediation process knowing what to expect and not to expect.
Understanding Divorce Mediation in Utah
Divorce mediation is a way for married couples to work through their separation and determine how they will handle issues related to their divorce without going before a judge and/or jury. Issues include anything from child custody, child support, Alimony, and the division of assets and debts.
For many couples, divorce mediation is a preferred method as it is typically less expensive than litigation and offers more space to provide their say-so in the final agreement. However, to be enforceable in most jurisdictions, the final agreement must be reviewed and approved by a family court judge.
Obtaining approval from a judge is generally a simple process. Most judges will not dispute the parties' agreement as long as it is legal and appears fair. They are also more likely to approve mediation agreements when both parties are represented by counsel.
Who is Most Likely to Benefit from Divorce Mediation?
Mediation is preferred in cases where both parties are:
- Agreeable to the process
- Open to what the mediator has to say
- Flexible and communicative
- Forthright with their assets
What Roles Do Divorce Lawyers in Utah Play in Mediation?
Parties to mediation are allowed to have an attorney represent them throughout the process. Although not required, it is very beneficial to the parties and the process. The attorney can play an active role by speaking on behalf of their client, presenting evidence to the mediator, and negotiating with the attorney for the other spouse.
Lawyers can also be divorce mediators. When this is the case, the lawyer is not a representative of either party but a neutral mediator. Their role as divorce mediator is to facilitate talks, negotiations, and compromises to come to an agreement and not to represent any party's interests.
Private versus Court-Ordered Divorce Mediation in Utah
Married couples facing a divorce can agree to enter into mediation on their own free will. In most cases, this will involve agreeing upon and hiring a mediator who has no connection to either party. The spouses will generally split the fees and costs associated with the mediation.
In Utah, the parties are ordered by the court to participate in mediation before the court will hear issues regarding child custody, child support, alimony, or asset division at trial. Our attorney, Jaime Topham, has been approved by the Court in Utah to provide mediation services for court-ordered mediation. She is on the Domestic Mediation Roster.
When court-ordered mediation fails, the parties must appear before the court where a judge will rule on any outstanding, undecided issues. When this happens, the parties will be bound by the rules of the court and the court's order.
Issues Addressed in Utah Divorce Mediation
Divorce mediation can cover most issues related to the dissolution of the marriage, making it unnecessary to go before a judge if all issues are resolved. The main topics of concern addressed in mediation are the same as in any divorce: child custody, child support, alimony, and asset division.
Child Custody & Parenting Plans
Child custody and parenting plans are hot topics in most divorces involving minor children. Mediation can help address these issues and both parties can have a say regarding how the children will spend their time as well as who is responsible for making decisions regarding their needs.
In most jurisdictions, there are two types of custody that will be addressed: legal and physical. The parent with legal custody is responsible for decisions regarding healthcare, religion, and education, and usually both parents share joint legal custody. Physical custody is custody of the actual child. A parenting plan is used to address all how the parties will cooperate to parent their children, for both legal decisions and parent-time decisions.
Both parents are legally responsible for costs associated with raising their children. In cases of divorce, one parent can be ordered to pay child support to the other parent in an attempt to ensure both parties are equally vested in the care of the children. Child support is determined with a set calculator the considers each parent's income and the number of overnights each parent exercises with the children.
Mediation can be useful in helping the parties agree who gets what assets. Assets to be distributed are only those considered as marital property. Marital property is property obtained while married, so any assets brought into the marriage or inheritance obtained while married are typically not considered marital property.
Marital property includes:
- Real property including the marital home
- Motor vehicles
- Bank accounts
- Retirement accounts
- Stock accounts
- Furniture and household items
Asset division can also get tricky, especially when one party brought assets into the marriage and used those assets during the marriage, like a vacation home that gained in value due to home improvements made during the marriage. It can also be a subject of contention if it is believed one party is hiding assets.
Equally important to asset division is debt division. Who will owe what after the divorce is final? Matters to be addressed include debts like:
- Mortgage debt
- Credit card debt
- Motor vehicle debt
Some of the debt can be paid off through the divorce. Real estate and vehicles can be sold to pay off outstanding loans or the equity can be used to pay other debts, like credit card debt.
Pros and Cons of Divorce Mediation in Utah
Just as many reasons exist for one couple divorcing to use mediation as reasons exist for another couple not to use mediation. Here are some advantages and disadvantages to consider before you decide whether or not to try divorce mediation in Utah.
Pros of Divorce Mediation
- Mediation can help you navigate the issues. Even when it's emotionally hard to do so, a mediator can help move the negotiations along and keep you on track.
- Mediation allows you to better control the outcome. You and your former partner can determine the outcome of your divorce rather than having a judge decide how everything will be resolved.
- Mediation saves you money. Though you will still have to pay the costs of mediation, those costs do not compare to what the costs of litigation would involve. For example, you may have experts provide their knowledge and testimony on things like financial matters and co-parenting. In mediation, you would share the costs while at trial, you would pay for your own.
- Mediation saves you time. Mediation tends to resolve your divorce faster than litigation, which is reason enough for many divorcing couples to choose it.
- Mediation lets you start fresh without bitterness. Whether you have kids or not, mediation is a way to negotiate your divorce in a setting where you can be both frank and civil with your soon-to-be ex-spouse. By trying to minimize bitterness, you can start your post-divorce life on a more positive note.
Cons of Divorce Mediation
- Mediation still costs money. Mediation is not free, even if court-ordered, you may still have to cover the mediator's fees.
- Mediators cannot provide legal advice. If you want representation, you still need to hire your own lawyer. Representation during mediation is just as important as it would be in litigation. You want to make sure any divorce agreement is fair and upholds your interests.