Attorney O's Midnight Musings: Connecticut Law » Divorce

Is Divorce Mediation for Me?

Irene C. Olszewski, Esq. — Tue, 14 Feb 2012 02:09:55 +0000

Couples undergoing the divorce process are not forced to use the court-based litigation model in order to reach a settlement. In Connecticut, spouses may also elect to participate in the collaborative divorce model, which utilizes 2 collaboratively-trained divorce lawyers (one for each party). To read previous posts on this blog about the collaborative divorce process, click here. Those who wish may choose mediation as a process to reach a settlement agreement. I will be discussing the latter model in this post.

Mediation is a process that is somewhat familiar to most people. Mediation differs from litigated divorce in that the process takes place out of court (except for the final judgment, which must be granted in court by a judge). The divorcing couple meet together with a neutral mediator — a neutral third party — to work out the details of their separation agreement. The mediator will guide you through the process of filing the required documents with the court. She will facilitate communication between the parties ultimately leading to a final settlement agreement. The neutral mediator will assist you in collecting and evaluating financial assets, help you to develop a parenting plan (if children are involved) and guide you through the decision-making process. When needed, she will utilize the services of a neutral financial professional to assist in valuing and appraising assets. She may also bring in a child specialist to assist the couple in formulating a workable parenting plan.

The mediator’s job is to help the parties make voluntary decisions that lead to the best possible outcome. It is important to note that even if that mediator is a lawyer, she is not able to advise either party individually on legal issues. The mediator will only be able to speak with both parties together about basic legal rules and procedures. Mediators always advise the couple that each party has the right to consult with his or her own independent lawyer about specific legal issues and questions. It is also recommended that you have your own lawyer review the final separation agreement with you before it is signed and becomes an order of the court.

Why choose mediation over litigation?

Most couples report that the cost of mediation is generally lower, the process is usually faster and the parties remain civil during the process. While the first 2 reasons are certainly good ones, the latter may be the most important — especially when children are involved.

Is mediation for me?

That depends. If either spouse is one of those people who won’t listen to reason, must always assert total control and is verbally abusive and argumentative for no reason other than to amuse him or herself, mediation probably isn’t the right choice. Litigation is likely your only option. Conversely, if you and your spouse are both reasonable people who want to have a say in the outcome of the divorce but need some help getting to the right agreement, mediation will probably serve you well. If you favor the idea of mediation but would feel more secure with an attorney advising you all through the process, you should consider collaborative divorce.

If you are contemplating divorce, you should speak to an attorney to discuss which divorce model is best for you. Divorce doesn’t always have to be a horrible experience.

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Disclaimer: The information, comments and links posted on the blog do not constitute legal advice. I will not respond to any specific legal questions in the comments section of this blog. Read my entire disclaimer.

Divorce Models in Connecticut

Irene C. Olszewski, Esq. — Thu, 29 Dec 2011 04:13:46 +0000

When the average person thinks about divorce, litigation comes to mind. In Connecticut, the litigated divorce model is but one option that divorcing couples may choose.

In a traditional litigated divorce (if there truly is such a thing), one spouse initiates the action by serving upon the other, via a marshal, a Summons and Complaint. While the divorce is pending, various motions to determine such issues as child support, contributions to the marital household expenses (mortgage, utilities, etc.) and the like are typically filed. A judge makes a ruling after a hearing. The court’s orders during that time are generally temporary and may or may not differ when the divorce action has reached its conclusion. For a litigated divorce, the parties may each retain lawyers or they may roll the dice and represent themselves, although the latter is generally not one’s best option. Divorce lawyers shake their heads in dismay when self-represented parties come into our offices after a divorce is over and want us to fix something they messed up because they didn’t know how to handle the issue in the first place. In many cases, it’s simply too late. The issue can’t be fixed. There are some things you can do yourself but divorce (especially when children and property are involved) isn’t something you should gamble with. Even the best divorce lawyers hire a divorce lawyer when they are going through the process themselves. There’s a good reason for it. Divorce is emotional and a skilled objective third party will usually serve you better than your emotionally-charged self will serve you. It just happens to be true. For more information on divorce in Connecticut, visit my website’s divorce page here. You may also download my complimentary brochure on the divorce process from the legal guides page of this blog here.

For couples that do not wish to spend their time in court fighting over every little thing, two other divorce models exist. The lesser known of these models is collaborative divorce. If you’re a regular reader of this blog, you know that it’s the model I personally favor. In the collaborative model, each party is represented by his or her own collaboratively trained lawyer. Rather than file motions and attend numerous court hearings, everything is negotiated out of court in a series of meetings. When complex financial issues are at the core of the divorce, collaboratively trained neutral financial professionals and pension attorneys can be brought into the process. If there is difficulty formulating a mutually acceptable parenting plan, a collaboratively trained child specialist can be added to the team. When the divorcing couple is having communication issues that prevent them from coming up with reasonable and rational solutions, a collaboratively trained neutral coach may be used. The collaborative model is meant to be civil and respectful rather than adversarial (which is the hallmark of a litigated divorce). Each party can rely on the advice of his or her individual lawyer to guide him or her through the process. This model works best when both parties are reasonable people who are willing to fairly negotiate and try to find solutions that best serve themselves and their family. For more on the collaborative divorce model, I invite you to read a couple of my selected previous posts on the topic here and here and here.

The third model is mediation. It is a more commonly known model than the collaborative model and it differs in many significant ways. Mediation can be effective when both parties are equal — meaning that one spouse doesn’t feel less powerful or less in control of the process than the other. When there is a serious imbalance in power and control (real or perceived), the process may not yield the desired results. In the mediation model, the parties mutually retain the services of a neutral mediator. That mediator does not represent either party individually because each spouse’s separate interests may actually be conflicting. The job of the mediator is to assist the couple in coming to a final separation agreement. Sometimes mediation is highly successful. Other times, people enter into the process only to discover that the other spouse is unable to remain rational and fair. It can be a wonderful model when two people have a reasonable (and realistic) idea of how they wish to divide their marital assets and the divorce is amicable.

No matter which option you choose, remember that your spouse is also a party to the divorce. He or she must also be on board if you choose to utilize the collaborative or mediation model. When faced with an uncooperative spouse, litigation may be the only viable option.

Either way, it’s always wise to consult an experienced divorce attorney to discuss which option might best serve your needs.

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Divorce Often Brings Out the Worst in People

Irene C. Olszewski, Esq. — Tue, 22 Nov 2011 18:55:33 +0000

I would venture to say that everyone out there in cyber land knows at least one person who has gotten a divorce. Likely, you know several. Perhaps you’ve experienced divorce yourself. Sometimes, divorcing couples are nice to each other. Sometimes they are are at least civil. Other times, they become unrecognizable strangers during the process. Why? Because divorce often brings out the worst in people.

Divorce can be an emotionally devastating time, especially when leaving the marriage wasn’t your idea. I came across this post by Susan Pease Gadoua on the Huffington Post that speaks to that issue.

Read: What Did I Ever See in My Ex?

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Renewable Marriage Contracts?

Irene C. Olszewski, Esq. — Tue, 11 Oct 2011 23:59:47 +0000

Divorce rates are high. It seems that the number of couples seeking divorce continues to rise. It’s a combination of factors, I’m sure, but the bad economy likely plays a part.

In an effort to decrease its divorce rate, Mexico City is proposing a renewable marriage contract that would give couples a 2-year trial run after which they can either renew the marriage or seek divorce. Hmm. There’a a novel idea for you. (Or maybe it’s just the making of a good novel??)

Here’s a link to a post about renewable marriage on the Huffington Post:

Are Renewable Marriage Contracts The Wave Of The Future?

So, what do you think about the idea?

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Dirty Divorce Tricks

Irene C. Olszewski, Esq. — Wed, 13 Jul 2011 18:07:01 +0000

Most everyone can recall a horror story or two about a divorcing couple. People do some interesting things when faced with divorce — and the parting of their assets.

I’ve posted here before on some of the antics divorcing couples are prone to, such as not wanting to divide up the marital assets fairly.

I came across a wonderful post by my U.K. colleague, Marilyn Stowe, that is worth a read. The post is presented in 11 “slides” each with accompanying text. Be sure to read the entire post and remember not to do any of those things if you’re involved in a contentious divorce!

Read: Top 10 Dirty Divorce Tricks [Huffington Post]

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The 90 Day Waiting Period for Divorce in Connecticut

Irene C. Olszewski, Esq. — Thu, 02 Jun 2011 21:46:46 +0000

Clients often call me and say that they want a divorce and they want it fast. I explain that the State of Connecticut has a mandatory 90-day waiting period before a court can issue a decree of dissolution (divorce). They often argue and tell me they want the divorce faster. It’s a simple divorce, after all. Can’t I just tell the court to forget about the waiting period?

Um, no I can’t inform a judge that hey, my client wants this divorce yesterday so why not just pretend the statute doesn’t require you to wait 90 days before issuing a decree. I’m sure the judge would hold me in contempt. Or maybe just laugh me out of the courtroom.

I refer clients to the pertinent statutory section:

Sec. 46b-67. (Formerly Sec. 46-44). Waiting period. Effect of decree. (a) Following the expiration of ninety days after the day on which a complaint for dissolution or legal separation is made returnable … the court may proceed on the complaint ….

You’d be surprised how many people argue with me about the statute, as if I happened to have been sitting on the legislature when it was written. Sorry folks, I’m just a lowly lawyer who has to obey the statutes. I don’t write them.

If you want to obtain a divorce in Connecticut, you have to wait 90 days before a court can go forward on the complaint. Be patient!

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What Court Will Adjudicate My Divorce?

Irene C. Olszewski, Esq. — Tue, 17 May 2011 17:05:12 +0000

I often receive requests from clients to file their divorce in a specific court. Sometimes it’s for convenience, such as having the court closer to their place of employment so they don’t lose as much time traveling on hearing days. Other times it’s a preference for better parking. Unfortunately, we are not allowed to simply file an action in any court we choose. Certain courts handle cases from parties residing in specific towns. In some instances, there may be a choice of a second court, in which case the client will have some say in where the divorce will be adjudicated. For example, if you or the other party to the divorce happen to reside in South Windsor, you will have the choice to file in either Hartford or Tolland.

Connecticut General Statutes Sec. 51-345(a), (c),(e) and (f) govern the filing of civil cases. To determine where your divorce must be filed, visit the Judicial Website here and select the town in which you or the other party reside. Don’t worry though, your lawyer will know which court will have jurisdiction over your divorce!

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Contemplating Divorce? Take Stock of Your Assets

Irene C. Olszewski, Esq. — Tue, 26 Apr 2011 18:33:45 +0000

When a person is contemplating divorce, he or she is often shocked at which assets are actually “up for grabs” when the marital pot is being divided. Bank accounts, stocks, pensions, IRAs, real estate, cars … these are just some of the assets that may come into play.

If you do not have a prenuptial agreement to the contrary, the marital assets (those acquired during the marriage) will be considered when negotiating a separation agreement to be presented to the court.

It’s important to understand that the job of the court is to facilitate a fair and equitable division of money and property. This is to be sure that one spouse doesn’t walk away with everything while the other spouse gets nothing. It’s the job of the court to try to divide the assets as close to 50/50 as possible.

That’s to to say that divorcing couples don’t have some latitude when negotiating a final settlement. One party can trade cash, for example, to offset the value of another asset that the other party may be entitled to.

You will be required to furnish bank statements, tax returns, pay stubs, credit card statements, pension statements and the like once your divorce commences, so if you’ve made the decision to divorce, start collecting those documents.

By all means, don’t be caught off guard. Take stock of your assets.

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Can Saying ‘I’m Sorry’ Before Couples Go to Sleep Cause Divorce?

Irene C. Olszewski, Esq. — Fri, 15 Apr 2011 00:15:01 +0000

Ah, catchy title, right? I knew I’d hook you with that one. Seriously, though, I do have a point.

A few years ago, I represented the wife in a fairly straight forward divorce action in which she was the Plaintiff (meaning she initiated the divorce). The couple had been married 27 years — happily, by all accounts — and nobody was more surprised by the divorce action than the husband. I can’t say I found that revelation too surprising; it’s not uncommon for one person to be happily married to the same person who is quite unhappily married to them.

During a negotiation conference, the husband looked at his lawyer and said, “Every time we had a fight, in all those years, we always said we were sorry before we went to sleep for the night. I don’t get it.”

Later, when I was alone with my client, I asked her about the ‘I’m sorry’ policy. I admit, it was more out of curiosity than any legal strategy I was devising but I did have an ulterior motive. I wondered who it was that usually said ‘I’m sorry’ and how many times she actually had done something to warrant making the apology.

Ooh, I’m so darn intuitive.

“I was taught that when couples fight,” she explained, “someone always has to say ‘I’m sorry’ before they go to sleep because you should never go to sleep angry at each other.”

I’d heard that, too. I pressed on.

“So”, I asked, “your husband always apologized when he was wrong?”

My client gave me a shocked look that suggested I’d just arrived from another planet. Then she laughed. Hard.

“Goodness no,” she sputtered between laughs, “he never once apologized. It was always me who had to end the fight.”

My theory was sound, I knew it. I told you I’m intuitive.

“Why did you say ‘I’m sorry’ if you weren’t sorry?” I asked, hoping for some piece of sage advice.

“Because that was the only way to end the fight!” she retorted.

As we continued the conversation, she admitted that her husband was always right, even when he was wrong. She apologized when she was wrong, she apologized when he was wrong and she apologized when neither of them happened to be wrong.

She woke up 27 years (and a few thousand apologies) later and decided she’d had enough apologizing for one lifetime and promptly filed for divorce.

I’m not a marriage counselor but for what it’s worth, I do have a background in behavioral science and I was actually pursuing my M.S.W. when two of my graduate professors suggested that my fine oratory skills and knack for penning a compelling argument might make me a good candidate for law school. If I end up with an ulcer, it’s their fault. But I digress.

I thought about my client’s response several times in the years that followed. Tonight, it hit me that I should make it the topic for a blog post. (It must be the marriage counselor in me).

Here’s my sage advice: If an apology isn’t genuine, then it isn’t an apology.

Hey, what do you want for free? Okay, okay … Let’s just call that the basics. I think we all agree on that. But when someone proffers apology after apology, year after tired year, a little bit of that person dies each time. In this case, Hubby went to bed satisfied that the fight was over — and that he was right, once again. The wife, conversely, went to bed all those nights knowing the fight hadn’t been her fault and that she had nothing for which to be sorry. One apology lead to another and then another … then 27 years of apologies had taken a toll. What the wife ended up realizing is that each time she took the blame, she went to sleep angry. All that anger built inside her a drip at a time until the glass was so full, it became a waterfall of anger. That’s when she called a divorce lawyer.

I’m not suggesting that couples shouldn’t ever apologize. What I am hoping is that if you’re the one considering making the apology in the name of ending the fight before you go to sleep for the night, make sure it’s a sincere apology.

If not, you’ll probably end up calling a divorce lawyer.

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Divorce Tougher on Sons than Daughters

Irene C. Olszewski, Esq. — Wed, 09 Mar 2011 02:21:10 +0000

Divorce is difficult on everyone involved and it’s no secret that it’s often hardest on the children. According to the New York Times, sons of divorce are three times more likely to commit suicide than their female counterparts. That’s a frightening statistic.

Read the full article: Sons of Divorce Fare Worse Than Daughters

For more on how to help your son to get through your divorce, read: How We Can Help our Sons of Divorce

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