For premarital agreements, follow these steps to decide whether a prenup makes sense.
Once you understand the basics of premarital agreements, you should focus on the specifics of your circumstances and figure out whether a prenup is what you need. The following three steps will help.
If you or your fiancť answer yes to any of the following questions, there is a good chance a prenup would be helpful. If you answer no to every question, you might still benefit, but having a prenup might not be as critical.
Jot down on a piece of paper a list of the things you might want to include in a prenup, such as identifying separate property, decisions about how you will handle money and property while you are married, whether alimony will be paid or waived in the event of divorce, retirement benefit agreements, and agreements about how you want to leave property at your death.
Next, ask yourself this question: On a scale of one to five, how comfortable am I with the idea of having a prenup?
Score of one or two. If you give yourself a one or a two, try to identify the reasons for your discomfort. If it is because you are uncertain how the terms of a prenup might compare to your legal rights without one, you may want to investigate the laws of your state before making a decision.
If you are pretty sure you want a prenup and your discomfort comes from fear of starting an argument or offending your fiancť by asking, then you might take this as an opportunity to practice talking about difficult matters in a loving way. You may even find it helpful to work on communication and negotiation skills with a counselor who specializes in premarital counseling.
The same is true if you don't think you want a prenup and you feel that your fiancť is pressuring you to make one. This is a good time to practice communicating -- clearly and kindly -- about stressful issues. Whether or not you eventually make a prenup, you're sure to learn more about what you each need and want.
Score of three, four, or five. If you scored a three, four, or five on the comfort scale, you are ready to start talking specifics with your fiancť. Even so, bear in mind that every good conversation involves some give or take. Don't assume that you and your fiancť will see eye-to-eye on everything, especially when you first start talking. Allow plenty of time to talk -- and be willing to get help if you need it.
When you're ready, Nolo's book, Prenuptial Agreements: How to Write a Fair & Lasting Contract, by Katherine E. Stoner, Attorney-Mediator & Shae Irving, J.D., walks you through each of these steps in more detail, and helps you draft your own agreement.
Here's a quick glance at the pros and cons of premarital agreements.
If you're thinking about making a prenuptial agreement, it can be helpful to look at the most common advantages -- and challenges. We'll look at the good news first, then weíll talk about a few downsides.
Making a prenup can:
Making a prenup may actually strengthen your relationship. While people often imagine that negotiating a prenup leads to conflict, communicating about money matters can actually improve the quality of your relationship and support good communication in your marriage. Even if you don't end up signing a written agreement, talking frankly about money and property can eliminate misunderstandings that might otherwise crop up between you. Remember that sooner or later, you and your intended will be discussing money. If you think you can handle it, most psychologists and legal experts would tell you there's no time like the present.
While there is a lot to be said for a carefully considered, clearly written prenup, there are some downsides to consider.
It's not romantic. Let's face it, a prenup is not romantic. Being engaged conjures up images of candlelit dinners and walks in the moonlight. Although marriage is a financial partnership as well as a romantic one, if you feel that discussing something as mundane as property and finances, as well as the possibility of divorce, will mar an otherwise beautiful time of your lives, you may not be candidates for a prenup.
The time may not be right. The need for a prenup is partly a question of timing. The issues covered in a prenup will probably arise sooner or later in your marriage: money management, property rights, responsibility for debts, estate planning. And if your marriage doesn't work out, you'll certainly need to deal with divorce decisions.
But making a prenup forces you to confront many of these issues now, at a time when your relationship may still be new and untested. Discussing what goes into a prenup could be unpleasant and stressful, leaving one of you with bad feelings about the relationship. (If now is not the time to make a written agreement, you may be able to make a contract after you marry (a "postnup"); but postnups have their own disadvantages, including stricter legal rules.)
State law may protect you without a prenup. The laws of your state may do a fine job of accomplishing what you want. For example, you may live in a community property state where assets owned before marriage are separate property and those accumulated during marriage are community property that is owned fifty-fifty. If this is essentially what you would want in your prenup, or maybe even better than what you expected, why go through the work of negotiating a prenup? Still, you'll want to be sure that you're not facing any special circumstances where your state law is unclear.
If you're leaning toward making a prenup and feel ready to consider specifics, the next step is to take a careful look at your own situation. Or, get Prenuptial Agreements: How to Write a Fair & Lasting Contract, by Katherine E. Stoner, Attorney-Mediator, and Shae Irving, J.D. (Nolo). This book helps you from start to finish: from deciding whether a prenup is right for you, to negotiating and drafting the agreement.
Same-sex marriage facts to help you decide whether it's for you.
For same-sex couples living in Massachusetts, California, Connecticut, Iowa, New Hampshire, New Jersey, Oregon, Vermont, Washington state, and Maine, either same-sex marriage or a reasonable facsimile is now a reality. If you live in any of these states, you and your partner have a decision to make that same-sex couples have never had to make before: whether marriage is right for you.
A few other states -- Hawaii, and Washington, D.C. -- have domestic partnership laws, but they offer limited rights that don't really approximate marriage. Still, for folks living in these and other states, it's never too early to think about what you might do if new relationship options became available where you live.
Here are some things to consider as you think about how you want to structure your relationship.
Having children. In most cases, if you have children or hope to raise a family, getting married is probably the right choice. Both partners in a married couple have the same rights and responsibilities to raise and support children of the relationship, and in a divorce both can seek visitation and custody. If one parent dies, the other one steps right in as the primary legal parent. It's pretty difficult to make these sorts of arrangements absent a legal marriage or a second parent or stepparent adoption.
Jointly owning property. Marriage isn't a prerequisite for owning property together, but if you get married, in most situations your property will be jointly owned regardless of who paid for it. This is the reverse of the presumption that applies to unmarried couples. Getting married may be the most efficient way of establishing a property merger. If keeping things separate is more to your taste, you will have to sign a prenuptial agreement to avoid the joint ownership presumptions of a legal marriage.
Splitting up property. In most states, each married spouse's
earnings are owned by the two of you, and, if the marriage breaks up --
regardless of who's at fault -- you each generally get half of everything you've
accumulated. By contrast, if you are unmarried, your property is co-owned only
if you have an agreement to that effect, and likewise for debts and obligations.
Divorcing spouses are also entitled to seek
Formalities. Every marriage requires a formal ceremony, and every marital separation requires some kind of formal court action -- and quite often the help of a lawyer. Unmarried couples can break up informally, on their own terms.
Inheritance and death taxes. Without a legal marriage, a couple needs to sign several agreements to create even a partial framework of protection in the event of death, and certain tax benefits are forever denied to unmarried couples.
If you are married, however, the surviving spouse generally inherits all the property if the partner dies without a will. (Laws exempting married couples from inheritance taxes and gift taxes don't yet apply to same-sex couples, because the federal government does not recognize same-sex relationships even if state law provides for marriage or marriage-like benefits.)
Transfer taxes. In theory, transfers of property upon dissolution of the relationship are tax-free for legally married couples, but not for unmarrieds. It's unclear yet how these rules will apply to same-sex couples, because of the federal government's refusal to recognize same-sex relationships.
Government benefits. Marriage can bestow a bevy of important
benefits, including military or
Immigration. A legal marriage is the only reliable method of providing a foreign partner with the privileges of immigration to this country if the person doesn't qualify under work or other provisions of the Immigration Act.
However, again because the federal government does not recognize same-sex relationships, this benefit is not yet available to married same-sex couples. In fact, couples in which one partner is a nonresident are advised against getting married or entering a civil union or domestic partnership, which could threaten their visa status in some situations.
If you need to make a decision about how to structure your relationship,
first decide whether you fall into one of the got-to-marry or better-not-marry
situations. Raising kids or facing a serious illness, for example, generally
favors a marriage (unless it disqualifies you for
If you don't find yourself at either extreme, take a close look at the marital property rules for your state, evaluate the benefits and burdens given your personal situation, and get a good sense of what being married would do for you financially.
Then, consider whether being married feels right for both of you emotionally. If the answers come back positive for both of you, then proceed, but consider creating a prenuptial agreement if any aspect of the traditional marriage structure doesn't meet your needs. If the impact of marriage feels unduly negative for one or both of you, however, maybe you should hold off.
To learn more about issues facing same-sex couples, get The Legal Guide for Lesbian & Gay Couples, by Denis Clifford, Frederick Hertz, and Emily Doskow (Nolo). Or, see Making It Legal, by Frederick Hertz and Emily Doskow (Nolo), available July 2009.
Undoing a gay marriage, civil union, domestic partnership -- or all of the above.
Over the past ten years -- since Vermont civil unions became the first marriage-equivalent relationship for same-sex couples -- a patchwork of marriage equality, marriage equivalents, and marriage ďliteĒ relationships, each of which provide some rights, has emerged in the United States. There are now 13 states that offer some form of relationship recognition for same-sex couples, each with different rules. In addition, some cities and counties offer local registration, with varying benefits, as do some employers.
For many couples who canít marry in their home state, going somewhere else to legalize their relationship looks like an attractive option -- and some couples have taken advantage of that option many times over. They registered as civil union partners in Vermont while visiting New England, took a honeymoon in Hawaii and registered as reciprocal beneficiary partners there, and then, after returning home to New York City, registered as domestic partners with their city government. Maybe they even flew out to California and got married there during the window of opportunity in 2008. And now they want to end their relationship. If this describes you, youíre probably wondering what to do.
First, itís important that you do something. Once youíve decided to break up, remaining legally registered or partnered, let alone married, means you continue to be financially and legally bound to your partner. Even if your union didn't have much legal significance at the time of registration, that can change. A Vermont civil union may not have been recognized as a marriage equivalent in New York City a few years back when you signed the papers, but with the increasing level of partnership recognition there, it now could subject you to joint liability or even a duty to pay spousal support.
Ending your multiple partnerships requires you to consider two questions.
What are the legal consequences of remaining registered or partnered? If one or more of your partnerships are on the local level -- like registering with your employer, or with the city or county -- those probably donít involve too many legal rights. You should still end the registration, just to make sure everything is clear, but if you forget, youíre not likely to run into a lot of financial consequences. On the other hand, any marriage or registration on a state level must be legally terminated. Most of these registrations incorporate marital rights and duties, so if you donít terminate the relationship you could be on the hook for your ex-partnerís credit card debts, could be ordered to share some of your savings with your ex, and could find yourself paying spousal support.
If either of you die before ending the registration, the survivor could make a claim against the otherís estate. Remaining partnered also precludes marriage or registration with a new partner. For all these reasons, if you entered into a legal relationship in any of the states where thatís available (currently California, Connecticut, the District of Columbia, Iowa, Maine, Nevada, New Hampshire, New Jersey, Oregon, Washington, and Vermont), you should take steps to sever the legal connection.
What are the procedures for ending each partnership? The local registrations are easy to end, as are registrations with your employer that you entered for insurance purposes. Each city or county will have a termination form, and you simply have to obtain it, fill it out, and send it in. Most local registries donít even require both partners to sign the form. (However, you should notify your former partner. If you donít have a current address just mail it to the last known address Ė even if that is your own home. Just in case it ever comes up later, youíll be able to show that you made an effort.)
Terminating a state registration or marriage is much more complicated. In a few instances (such as a California domestic partnership if you own no real estate and have few assets) you can file a simple termination form, but not too many people qualify for that, and some states donít have that option at all.
Instead, most states require you to go through the same divorce process that opposite-sex couples use, involving the local family court. If you have more than one state registration, you should probably try to file for termination of the one you entered into first, but make sure that you ask the court to end the subsequent partnerships at the same time. Another option is to take legal steps to end the relationship that's legally the strongest -- in other words, if you are both married and registered as domestic partners, terminate the marriage and try to get the court to end the domestic partnership at the same time, as part of the same proceeding. You may want to talk to an attorney about the best way to go about ending your legal relationship.
Using the divorce courts is the point at which problems can arise. If you live in a state that doesnít recognize same-sex relationships and you went elsewhere to marry or register, your local court may refuse to grant a divorce. If you have multiple registrations from different states, the judge may be even more reluctant to end all of the relationships.
You might think you can just return to the state(s) where you registered and complete the legal process there -- but most states have residency requirements for divorce, some as long as a year. The exception is California, which allows anyone who registered there to get a divorce there regardless of where the couple lives. So if you're registered as California domestic partners and you live in another state, you should be able to terminate your domestic partnership simply by sending in paperwork to the California court. (The same rules donít apply to a California marriage, however.)
One way to get around this problem in states that will allow it is to file for an annulment on the grounds that your out-of-state registration is technically invalid. This isnít ideal, because from a political perspective itís never a good idea to denounce a same-sex relationship as not being legal, but you may find it necessary if youíre really stuck. You can also try to find a different judge in your state, perhaps one who is more sympathetic to your situation. Another option, if the residency requirement in the state where you registered isnít too long, is to establish residency and get your divorce without actually moving there.
To do any of these things, you'll need to find a local divorce lawyer to help you. Your situation is unusual, and having an attorney may make the difference between failure and success. Itís not necessarily going to be simple or cheap, but itís important that you make sure that your legal status -- in every state thatís relevant -- reflects the reality you are actually living.
For a comprehensive, easy-to-understand guide to the past, present, and future of same-sex relationships in America, see Making It Legal, by Frederick Hertz and Emily Doskow (Nolo), available July 2009.
How divorce lawyers work.
You probably know of people who suffered the torments of hell going through divorce, and you also probably know people who pulled it off without much fuss. Why are some divorces sensible and others catastrophic?
The answer depends on various factors, including the personalities of the people involved, the importance of what's at stake, and sometimes on how much you rely on lawyers and courts to resolve troublesome issues. In general, the less you use the court, the less cost and heartache you'll have -- and in many cases, you'll get a better final result. But how do you avoid courts and lawyers?
In theory, at least, it's simple: You usually do best if you and your spouse work out thorny issues together, perhaps with help from a neutral third person, such as a mediator. You keep control over such vital matters as how your children will be raised, what happens to the family home, and how your property will be divided. If you and your spouse can work these issues out yourselves -- and many, if not most, couples can -- you will save yourselves time, money, and anguish. More important, you will spare your children the ugly spectacle of extended parental fights, helping them come through the divorce as undamaged as possible.
If you are able to resolve the big questions of children, money, and property, you then just need to ask the court, in writing, to grant a divorce. In many states, you don't even have to appear in court. Many courts now make it relatively easy for people to handle an uncontested divorce without a lawyer.
When you're emotionally distraught or angry, turning all the details and hassle of a divorce over to a divorce lawyer may seem like a perfect solution. Unfortunately, it doesn't always simplify things.
It's all about the lawyer you hire, so it's critically important that you find the right one. If you want a lawyer's help but you still want to keep your divorce civil, make sure you hire a lawyer who will support that approach. When you interview lawyers you're considering, ask them whether they feel favorable about negotiating a settlement rather than fighting it out in court. Lawyers operate under a prime directive: the zealous pursuit of their client's interests. If you make sure to let the lawyer know that your interest is in an amicable divorce, then that's what you should get.
Unfortunately, some lawyers make it a practice to be as aggressive as possible, and if your spouse finds a lawyer like that, you may have to fight fire with fire. In these cases, unfortunately, the battle can go on and on, intensifying in passion, until the clients run out of money and limp to the settlement table.
Worse, if there are children, the fight depletes not only your pocketbook, but also your children's sense of security. Once the legal fight is over, trying to establish a normal ongoing parenting relationship between both parents and the children can be very difficult.
Some family lawyers are trying a new method called "collaborative practice," in which the clients and lawyers agree that they will not go to court but will share information voluntarily and work cooperatively toward a settlement. Collaborative lawyers will take cases only where the other spouse has also hired a collaborative lawyer, and the lawyers sign an agreement that, if the case can't be settled, the parties have to hire another lawyer to do the litigation. This removes the lawyers' financial incentive to go to court and encourages everyone to settle earlier.
It makes a lot of sense to hire a lawyer if there is a real problem with abuse -- spousal, child, sexual, or substance. In that situation, a lawyer can help you get the arrangement you need to protect yourself and your children.
It can also make sense to hire a lawyer if your spouse is being dishonest or vindictive and you just can't cope with it. In that case, you may need someone to protect your interests.
It's also prudent to hire a lawyer if your spouse has an attorney. This is especially true if you have children or are facing complicated financial issues. It could be difficult and emotionally intimidating to go head to head with a seasoned pro.
If you can't afford a lawyer, consider calling your local legal aid office. If you qualify financially, a lawyer will at a minimum discuss the legal aspects of your case with you and may continue to answer questions on an ongoing basis during your proceedings while you represent yourself. Ask whether the legal aid office has a pro bono program. The office may have a list of private attorneys that are willing to take on cases referred by legal aid at little or no cost.
If you don't qualify for legal services or pro bono help, you'll have to shop around for someone to represent you.
Mediators help you and your spouse get over the emotional barriers to negotiation and negotiate a sensible divorce agreement that meets the both of your needs. Unlike lawyers, mediators work with both spouses at the same time. They don't represent the individual spouses' interests, the way a lawyer does. Instead, mediators facilitate a negotiation between the spouses that in most cases results in an agreement satisfactory to both sides. Or, for a review of all your options and the different kinds of divorce, see Nolo's Essential Guide to Divorce, by attorney Emily Doskow (Nolo).
Collaborative divorce helps spouses work things out -- without a court fight.
When itís time to divorce, spouses have important choices to make about how
to proceed and what type of help theyíll ask for from others -- including
lawyers, mediators, and other professionals. Some people will go on to a lengthy
high-conflict divorce with attorneys representing each side, trying to get
everything they possibly can. Others will easily agree on how to divide their
property and share custody of their children, and might only need help in
preparing the legal paperwork to get divorced. But many people fall in the
middle, and for those folks,
Divorcing spouses may have different points of view on issues like property division, custody, or support. But this doesnít mean that they have an actual dispute that has to be resolved by a third party. They may simply need help making the decisions together -- and perhaps advice about whatís best for them.
Collaborative divorce (also called collaborative law, or collaborative practice) is a process in which you and your spouse negotiate an acceptable agreement with some professional help. You and your spouse each hire specially trained collaborative attorneys who advise and assist you in negotiating the settlement agreement. You meet separately with your own attorney and the four of you meet together on a regular basis, in ďfour-wayĒ meetings. A collaborative divorce may also involve other professionals, such as child custody specialists or neutral accountants, who are committed to helping you settle your case without litigation.
Ordinarily, both spouses and their attorneys sign a ďno courtĒ agreement that requires the attorneys to withdraw from the case if a settlement is not reached and the case goes to court.
Eventually, you will have to have some contact with a domestic relations or family court to get legally divorced. Through collaboration, you can keep that contact brief and manageable. Once you reach agreement on all the issues, youíll make the legal part of the divorce a simple, uncontested procedure that doesnít require a trial or contentious hearings on points of evidence and pretrial maneuvers.
There are five ways that collaboration can cut down on the acrimony and expense of divorce, while giving you results that are at least as good as what youíd get in court. You and your spouse can:
Whether you and your spouse use collaboration from the very beginning of the divorce process or only for part of it, you will save time and money. Perhaps just as important, you will more likely get through the divorce with your privacy and dignity reasonably intact.
For more information on collaborative divorce, and for help finding a collaborative lawyer in your area, see the International Academy of Collaborative Professionals, at www.collaborativepractice.com.
Questions about obtaining and maintaining the legal guardianship of a child.
How do I establish a guardianship?
Can I be appointed guardian if the child's parents object?
Who financially supports a child under a guardianship?
Are a guardian's responsibilities burdensome?
To put a guardianship in place, you will start by filing guardianship papers in court. A court investigator will likely interview you, the child, and the child's parents if they are alive and available. The investigator will then make a recommendation to the judge. The judge will review the case and decide whether to appoint you, usually after a hearing. The court must find that the appointment is in the best interests of the child.
If you want to name a guardian for your own children in case you aren't around to take care of them, use a will to name the person you want to take care of them. (If this is what you want to do, read Nolo's article Guardianship for Your Children.)
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As a general rule, guardianships are not granted unless:
There are some circumstances where you can get a guardianship over the
parents' objections, but you'd usually have to prove that the parents were
unfit. You would need a lawyer's help for this.
Other family members -- siblings, grandparents, aunts, and uncles of the child -- are also entitled to know that you are pursuing a guardianship, and have a right to object. You should probably consult a lawyer if anyone in the child's family tells the court that they object to you becoming the guardian.
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Unless a court terminates the biological parents' rights (uncommon in most guardianship situations), the parents are responsible for supporting their child. In reality, however, financial support often becomes the guardian's responsibility. The guardian may choose to seek financial benefits on the child's behalf, such as public assistance and Social Security.
Any funds the guardian receives for the child must be used for the child's benefit. Depending on the amount of money involved, the guardian may be required to file periodic reports with a court showing how much money was received for the child and how it was spent.
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An obvious but important question to ask yourself before you take any steps to establish a guardianship is whether you're truly prepared for the job. To find out, ask yourself these questions:
It's smart to consider your options carefully before initiating a guardianship proceeding. After honestly answering the questions above, you may need to rethink your plans.
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How to create a divorce agreement with the help of a mediator -- without going to court.
What is divorce mediation, and how is it different from arbitration?
Why is mediation better than going to a lawyer -- or is it?
What is the difference between court-ordered mediation and private mediation?
How do mediating spouses protect their legal rights?
Does the mediator meet with both spouses together or separately?
How much does mediation cost?
How long does mediation take?
How can a divorcing couple find a good mediator?
Divorce mediation is a process in which divorcing spouses try to negotiate an acceptable divorce agreement with the help of a neutral third party: the mediator. The mediator helps the spouses to communicate and negotiate but doesn't make any decisions for them.
Both mediation and arbitration involve a neutral third party who is not a judge. In mediation, the neutral party has no power to make decisions. In arbitration, the neutral third party -- the arbitrator -- listens to the facts and then decides the case, just as a judge would. Although the parties can present evidence and make arguments, they have no say in the final decision.
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Using mediation to negotiate a divorce agreement is almost always going to take less time, cost less, and result in a more solid agreement than using a lawyer to take the same case through the courts. When you are going to have an ongoing relationship with your ex-spouse, such as when you have kids together, mediation can help to improve communication and make your future interactions a little bit easier.
For some couples, however, negotiating directly with each other, even with the help of a mediator, is not possible -- either because of problems in the relationship (such as domestic violence or substance abuse) or because a spouse is unwilling to mediate. Even if you decide to mediate, you may want to hire a lawyer in a limited capacity to consult with you outside of the mediation. Many mediating spouses find it helpful to work with a consulting lawyer who can offer legal advice and review the settlement agreement before it is signed.
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As its name implies, court-ordered mediation is mediation that is required by the court as a part of a divorce proceeding. In many places, mediation is mandatory when there are custody or visitation issues. In fact, court-ordered mediation usually is limited to child custody and visitation issues, while private mediation often also covers financial issues and property division. There is often no fee charged for court-ordered mediation, whereas private mediators usually charge an hourly or per-session fee. The mediator in a court-sponsored program often makes a report to the court; private mediation is usually confidential.
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Because divorce involves legal questions, every divorcing spouse should know and understand his or her legal rights before agreeing to a settlement. One way for a mediating spouse to do this is to work with a consulting lawyer who knows and understands mediation.
Doing some independent legal research is another option. It's best to do this as early in the process as possible, then follow up with a legal review before signing the settlement agreement that comes out of the mediation.
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Some mediators prefer to work separately with each spouse, acting as a go-between. Others prefer joint meetings where both spouses are present and communication is more direct. There can be advantages and disadvantages to each approach, depending on the circumstances of the particular couple. This is a question that divorcing spouses should address in advance with a potential mediator.
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Most mediations involve an hourly or per-session fee, except for those that are ordered by a court or conducted through a community-based mediation agency. These agencies may provide mediation at a reduced cost or even for free. The number of sessions needed to gather information and negotiate an agreement will vary from couple to couple, so the cost of the mediation will also vary. Mediation, however, will usually be much less costly than adversarial litigation. A divorce mediator in private practice might charge anywhere from $100 to a couple of hundred dollars an hour, depending on where the mediator practices.
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Mediation almost always takes less time than litigation. Depending on the issues, it can even take place in one day, although most divorcing couples meet for several sessions on separate days over a period of days or weeks or months.
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Personal referrals are usually the best way to find any professional, including a mediator. But because mediation is a relatively new field, personal referrals may not be possible. In that case, divorcing couples may need to do a little research. Using Divorce Mediation, by attorney-mediator Katherine E. Stoner (Nolo), includes chapters on finding and evaluating mediators.
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