Husband doesn’t want divorce; wife coming in with him for mediation

Husband does not want a divorce.

A couple came in to see me today. The wife brought all the financial paperwork and was ready to get started on a mediated divorce. As I explained the process at length, and answered the wife’s questions, the husband sat in a chair as far away from the wife as possible, arms folded across his chest, and said not a word.

When I asked the husband if he had any questions he said bluntly, “No.”  After a moment, I said to him, “It appears to me me that you do not want to even be in my office. Is that true?”

He said, “Yes, I don’t want to be here.”

I said to him that I thought that perhaps he did not want a divorce at all and asked if that were true. He said that it was true and that he  did not want a divorce.

I told him that I had an obligation to tell him that mediation is a voluntary process and that, if he did not want a divorce, he didn’t have to agree to one. The wife did not look particularly happy that this.

It is my job to tell people the truth. The truth is that, in New York, we do not have “no fault” divorce. If his wife wants a divorce, and he does not agree, that she will have to hire an attorney, start a divorce action, serve him with papers, and convince a judge that she has grounds pursuant to the laws of the State of New York for the judge to grant her a divorce.

That is not as easy as it seems.

I asked the wife the following question: “If your husband will not agree to a divorce what will you do?”

She replied, “I will hire an attorney and sue him for divorce. I am not staying married to him one more minute.”

I asked the husband if he had understood that the wife was determined. He said that he did.

I then explained to him that if she sued him for divorce, there were two possible outcomes. 1. She would prevail, in which case the matter would go forward and the Court would determine custody, visitation, support, and distribution of assets and liabilities.

I pointed out that a Judge does what he or she thinks best, based on the laws of the State of New York, and that a judge has no obligation to do what one or the other of the parties wants. So in a litigated divorce the parties have far less control over the outcome than in a mediated divorce.

2. If his wife is unable to convince a judge that she has grounds for divorce then the action would be dismissed and they could live unhappily ever after. I told him that, no matter how awful things at  home were now, after the time, expense, and stress of an ultimately unsuccessful divorce trial, life at home would be a living hell. I wouldn’t recommend it.

My point to him really was not that he had to agree to a divorce, but that if divorce was virtually inevitable, he would have far more control over the outcome by participating in a mediated settlement.

One of the advantages of divorce mediation is that you retain far more control over the process than you do in a litigated divorce.

Spousal Intimidation in Divorce Mediation

What do you do in a divorce mediation when one spouse is intimidated by the other and will not stand up for (usually) herself? It is true that the divorce mediator’s job is to be a neutral, but I take the position of aggressive neutrality. My job is to help the two people make a deal. To do that when one of the parties is cowed by the other means that I have to agressively seek out the real needs of each. For example, a wife who is afraid of her husband and just wants out needs to understand that a year from now, when the fear has begun to fade, the economic needs that she ignored in order to get away from her abusive husband have now come to the fore and she is unable to live. It is essential to explore with both the husband and the wife just what the real economic needs are for each and how to allocate the total resources of the marriage to support both of them. Obviously, once the marriage is over each spouse is responsible for his or her own support, but where they have minor children, or one of the parents has been out of the workforce for years, a realistic assessment of what each need is fundamentally important if the mediation is to be a long term success. My next post will address just how to go about doing that.

Divorce mediation and the need for separate counsel

A mediation prospect came to see me yesterday and presented a common problem from my perspective. She was very eager to pursue mediation rather than to hire separate attorneys. However, her husband had not come with her to the initial consultation. He just told her, “Find a mediator, tell him this is the deal, and have him write it up.” He then told her what he was willing to do, take it or leave it. I discussed what he had proposed with her and gave her my opinion that she giving away the farm. My suggestion to her was that she and her husband make an appointment and begin the mediation process so that I could help them make a deal that recognized the rights and obligations of both of them and that sought a resolution that would be as fair as possible. She told me that he had told her that it was take it or leave it and that if she didn’t take it he would put her out on the street and she would get nothing. I tried to explain to her that was not how the law worked and that she had rights, but she was so frightened of her husband that she was consumed by fear and unable to think for herself. What is the point of this story? Mediation is not the solution for everyone. Yes, it is much less expensive, in the short run, that hiring separate attorneys. But she was willing to give away the farm, to take far less than she was entitled to, and to suffer into the future, rather than to stand up for herself. Mediation cannot be successful in that situation. In such circumstances the wife really needed separate counsel to represent her. That does not necessarily mean a scorched-earth litigation; it does mean that negotiation between equals required separate divorce attorneys for each of them. It is a myth that mediation is always the best approach. It can be, where both parties are seeking a reasonable and fair resolution, but it cannot work where one of the parties in a divorce insists on dominating the decision-making. It is fundamentally important to recognize when divorce mediation is appropriate and when a divorcing couple need separate counsel.

When divorce mediation works.

In this economic downturn on Long Island couples whose marriage has come to an end and who need to officially end it can turn to divorce mediation for an inexpensive, low impact, and quick way to end their marriage while avoiding the expense, the grief, and the time-consuming effort of using two attorneys. That method is called divorce mediation. Mediation is a process in which you both use a single attorney, whose job it is to serve an a knowledgeable, objective expert in assisting you to make a deal that offers the most effective solution for both of you, and for your children if you have them. For divorce mediation to work you have to meet three criteria: 1. you are both agreed on the outcome, whether that is a divorce or a legal separation. 2. You each need to be reasonable and realistic about the outcome; you only have what you have. Divorce does not create more or fewer children, or more or less income, or more or less assets, or more or less debt. The goal is to create the fewest crumbs (legal fees) while dividing the assets. 3. Full financial disclosure. If you have gold bullion buried in the backyard and you spouse doesn’t knoIn this economic downturn on Long Island couples whose marriage has come to an end and who need to officially end it can turn to divorce mediation for an inexpensive, low impact, and quick way to end their marriage while avoiding the expense, the grief, and the time-consuming effort of using two attorneys. That method is called divorce mediation. Mediation is a process in which you both use a single attorney, whose job it is to serve an a knowledgeable, objective expert in assisting you to make a deal that offers the most effective solution for both of you, and for your children if you have them. For divorce mediation to work you have to meet three criteria: 1. you are both agreed on the outcome, whether that is a divorce or a legal separation. 2. You each need to be reasonable and realistic about the outcome; you only have what you have. Divorce does not create more or fewer children, or more or less income, or more or less assets, or more or less debt. The goal is to create the fewest crumbs (legal fees) while dividing the assets. 3. Full financial disclosure. If you have gold bullion buried in the backyard and you spouse doesn’t know about it, its time to fess up about it, its time to fess up.