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Q&AAsk a Lawyer
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Divorce and family law attorney Marilyn A. Westlake promotes mediation as a faster and cheaper alternative to litigation. Westlake has been practicing in Syracuse, N.Y., since 1986.

Untied: Can you explain mediation?
Westlake: There is a neutral mediator who facilitates the discussion between the two parties. And the divorce mediator has an agenda, a list of issues to discuss with the parties. The mediation sessions are conducted without attorneys, so that the parties share the cost for the mediator. They control what time they are going to meet with the mediator. They go through issue by issue until they’ve made all their decisions. The mediator takes notes and, if the mediator is an attorney, would draft the legal separation agreement for the parties. And they each go to separate lawyers to review the agreement before they actually sign it. So the lawyers are back in the capacity of advising attorneys, as opposed to representing parties. If these same individuals were to choose attorneys to represent them, each of them would typically start off paying their attorneys $3,000 as a retainer. And that would not encompass the entire cost of the divorce. It would go on from there.

Untied: How much does mediation cost?
Westlake: The mediator charges a particular hourly rate for the mediation sessions and then usually a flat rate to draft the separation agreement, so the parties have more control. They control how much money they’re paying by deciding if they want to have a session with the mediator or pay an attorney $3,000 up front. And then the lawyers on each side would perhaps send letters to the other lawyer, prepare financial documents, exchange some phone calls, that type of thing, so that the parties have control over the financial aspects of the divorce. That’s how the mediation process results in the parties paying less to get the same agreement they would get if they had litigated the case. And the mediation process is shorter. If I’m working with a couple, I can get them to the point where I’ve written their separation agreement two months or three months after I’ve met them. The divorce litigation process, in contrast, can go on over a year.

Untied: What is the most common mistake that women make when going through a divorce?
Westlake: I think that in preparing for entering into negotiations, most people are not as prepared as they should be. So I would say that’s probably the biggest mistake – not getting their ducks in a row before they begin the process.

Untied: Are there gender differences in the ways that men and women approach divorce?
Westlake: A consistent gender difference is more in the area of their thought processes or approach. Women tend to add a lot of details, to add a lot of description, to add a lot of emotion to their communication, whereas men refrain from that type of speech and are typically more direct. Then again, this is a very broad generalization, certainly not true for everyone. So if I were to give advice to women, I would urge them to make lists before they speak to their attorney, to make lists before they get into a mediation session, be very focused, go back to their main talking points and goals. That’s advice for either gender, but it is particularly important for women not to go off track and discuss a lot of extraneous details. That’s how clients can be better clients and work better with their mediator – try to stay focused on the decisions they’re making and bring up only those things that would have an impact on their decisions.

Untied: What are the most common areas of dispute during divorce?
Westlake: As you can imagine, it’s pretty much the same issues that you have in a marriage. People are discussing their children, they’re trying to figure out their custody and parenting situation, where the children will be living, and many will choose to do a custodial sharing arrangement. They’ve got to work out in the mediation process the details of how that’s going to take place. You know, where will they be on Tuesday nights, who’s taking them to the ballgame, and who’s going to handle the doctor’s appointments? All those issues are important, as well as all the financial aspects. How will the child support be handled, who will be paying money to whom? Maybe they have a house, one of the parties may have a pension, they may have racked up credit-card debt, and their vehicles might have to be title-transferred from one to the other. So every single thing in a relationship and in a family needs to be either handled through an alternative process like mediation or litigated and perhaps even tried by a judge in court.

Untied: Can a person receive child support during the separation, before the divorce goes through?
Westlake: Yes. For example, in a litigated situation one of the parties might go to court and file a motion asking the judge to order that the child support be paid during the process, while they are exchanging financial information and negotiating their settlement. In the interim, a judge can order that support be paid. In the mediation process we can discuss the support issues and they can agree that a certain amount of money will be paid while we’re continuing the process. And if they make the decisions leading to a separation agreement, part of the separation agreement is certainly going to be an extensive discussion of the support issues. That will all take place prior to the finalization of the divorce.

Untied: Can you describe the difference between child support and alimony?
Westlake: One of the basic differences is that child support is not recordable income, subject to income tax by the recipient. Nor can the payer of child support use that child support payment as a write-off on taxes. Spousal maintenance is the opposite. The IRS considers spousal maintenance, or alimony, income to the recipient, and it is a tax deduction for the person paying that money.

Untied: When do spousal maintenance payments usually end? Do they end when a person moves in with a new partner, or when the person is getting married, or is that determined state by state?
Westlake: This is a good time to mention that it’s very rare for a judge to decide, and for a case to actually have a trial. Even in the litigation process, with the help of the judge they usually come to a settlement. So when you get to the topic of spousal maintenance, what the attorneys do is negotiate the terms, or the parties negotiate with each other through a mediator. And you’re looking at a certain length of time for spousal maintenance. It’s very rare that it would be lifetime. In New York state, it’s referred to as rehabilitative maintenance, so the idea is to allow the recipient to become self-supporting, perhaps to seek further vocational training, whatever it might take for that person to be able to support themselves. We typically say it may be half the length of the marriage or up to half. So if it’s a 10-year marriage, maintenance might end somewhere between three, four, and five years.

Typically, maintenance is going to end upon remarriage, as well as upon cohabitation with another party, because the person writing that check is certainly going to be disinclined to pay if their ex-spouse is now living with another individual. It would be extremely unusual to negotiate alimony or a spousal maintenance payment that wouldn’t end upon remarriage or cohabitation.

Untied: Have these slow economic times affected the number of people filing for divorce?
Westlake: Yes, I definitely would say that it has. Even though it’s a lot less expensive to use mediation, it still costs money. My phone, quite frankly, is not ringing as often as it did six months ago, and I think that it’s due to the economic situation, to a large extent. I really believe couples are staying together, even though they would prefer not to, because of finances.

If you have any specific questions for our lawyer, please email them to us.

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