When clients visit my office for an initial consultation about their impending divorce, they invariably ask about the benefits and pitfalls of mediation.  Over the last several years, the use of alternate dispute resolution in divorce and other litigation matters has increased in popularity.  This is due to the widespread belief that staying out of Court is a cheaper and faster way to resolve most legal disputes.  While this is generally true and while mediation may help parties reach that goal, it is not the answer in all situations.  Let’s examine some of the myths and truths about mediation:

1)      Mediation Will Save Me Money – While it is true that the cost of bringing a divorce case to trial can be quite expensive, attending mediation is not always a cheaper alternative.  In a mediation setting, the parties pay a mediator a designated hourly rate.  Depending upon the number of sessions that the parties meet with the mediator and hours that the mediator spends reviewing their case and/or drafting a settlement agreement will determine the ultimate cost.  In addition, parties are also advised to hire their own independent lawyers to review any proposed agreement arising out of mediation on each party’s behalf which is another cost.  Moreover, if the mediation proves unsuccessful, the parties are back at square one, facing possible litigation, after having already spent the cost of mediation;

2)      Mediation Will Get My Divorce Resolved Faster – Many clients believe that mediation is the key to a quick resolution of their divorce.  This is certainly true if both parties are amicable, there is minimal property to divide and both are like-minded in what constitutes a fair division of that property.  In fact, if these factors exist, mediation is not even necessary – the parties can resolve their issues directly with the limited assistance of counsel.  In most instances, however, parties are not like-minded (which is why they are divorcing in the first place), do not have minimal property issues and are not amicable.  This is not to say that most divorces will not resolve – they usually do by mediation or by settlement at some other point – just that going to mediation alone, will not in itself speed up the process and in some instances can slow it down if it proves unsuccessful;

3)      Mediation Is A Less Adversarial Way To Get Divorced – The idea that mediation is a gentler, less adversarial way of getting divorced is true.  That is, if it works.  Again, if both parties are committed to the mediation process and determined to resolve their divorce in this manner, they have a greater chance of success than those who believe that mediation alone will make them gentler and less adversarial. Those who think that mediation in and of itself will make the differences that caused the breakdown of the marriage magically disappear and will allow the parties to agree to a distribution of assets for the greater good of the family are often sorely disappointed.  Mediation by its nature requires parties to agree in order to work and if they are not able to agree, then mediation is not the answer;

4)      The Mediator Replaces The Judge– Some clients have the false notion that the mediator essentially operates as a private judge and will make decisions for them to resolve their divorce.  This is not true.  Binding arbitration is a type of alternate dispute resolution where parties agree to submit their case to the arbitrator to decide their issues.  It is not the same as mediation.  In mediation, the mediator acts as a facilitator to help parties reach an agreement.  The mediator does not “decide” the case for the parties, and in fact, should remain neutral in helping parties reach agreement.  The potential problem is that if parties do not agree, the mediation does not succeed.

5)      Mediation Helped My Friend So It Will Help Me – One of the most difficult questions that clients pose is why some tool like mediation could help a friend, relative, etc. and not help them.  Clearly, it is understandable how someone would want a simple solution to their divorce that worked for someone else they know.  However, as I routinely explain to clients, each divorce case is unique and must be evaluated on its individual merits.  There is no one-size-fits-all resolution to divorce cases.  Parties are wise to review their options with counsel and take the path that seems right for them – even though it may differ from that of their friend, neighbor or relative.

It is certainly beneficial that clients have a wide variety of choices in trying to resolve their divorce, mediation being one of them.  This takes pressure off the over-burdened Court system and gives parties a modicum of control in a situation where they often feel so out-of-control.  However, before embarking on the mediation path, it is critical that parties fully understand the process and the chances of success in their particular situation.  Hopefully the tips above will at least give parties some issues to consider before moving forward.  What is most important to keep in mind is that most divorces do resolve at some point with or without mediation.  Getting wise counsel in helping to navigate the system and decide what path right for you in your matter is most critical in saving time, money and aggravation

Everyone is speculating that the Ashley Madison hack will mean an increase in business for divorce lawyers.  This remains to be seen.  However, the real question is what happens if your name appears on the list of users?  And what if it is not your name but your spouse’s name that is included on this list?

In most States, including Pennsylvania and New Jersey, infidelity in itself will not usually affect the financial outcome of your divorce, nor do you need to prove infidelity to get divorced.  We have “no fault” divorce which essentially means that if one party wants to get divorced for any reason, they will be permitted to do so.  Moreover, while marital fault, i.e. infidelity, is a factor that a Court can consider in awarding alimony or dividing property, as a practical matter Courts primarily focus on economics when determining these financial matters.

So then, how will the Ashley Madison hack affect the divorce rate?  In fact, there will likely be more divorces as a result of this event.  The reason is that many people who may suspect that their spouse is cheating often need confirmation of same.  That is why they hire private investigators to track down their spouses to see if their suspicions are true. Well, a private investigator is not needed to confirm that those who used the Ashley Madison site have cheated. The information is out there for everyone to see.  Once the infidelity is confirmed, it is likely that those who were contemplating divorce will actually move forward.  And others, who never suspected that their spouses were cheating may now have a reason to get divorced.

It will not only be the spouses of those who used Ashley Madison who might move forward with divorce.  In fact, those who used the site may be relieved that they have been “discovered” and may decide to end an otherwise unhappy marriage.

If parties decide to divorce as a result of being discovered using Ashley Madison, what will happen if any monies are recovered from a lawsuit against the site for breach of the confidentiality it promised?  Should these monies be considered marital assets subject to division?  Frequently, Courts look to the timing of the injury provoking the lawsuit to determine whether it is marital or not.  In this unusual instance it would seem that fairness dictates that any financial recovery should be shared in some way.

The ultimate fallout from the Ashley Madison hack remains to be seen.  However, the most important lesson from all of this is that no websites are 100% secure and should be treated as such.  Thus, be careful of what you post.

With the recent decision of the U.S. Supreme Court, same-sex couples now have the freedom to marry, and divorce, throughout the Country.  There is finally marriage equality.

Certainly, being able to marry is important as not only is it the ultimate demonstration of love and commitment, but it also confers certain legal rights, that to date, some same-sex couples were not able to enjoy.  For example, with marriage, spouses also get certain mandatory rights of inheritance.  In Pennsylvania and New Jersey, a party cannot disinherit his or her spouse and even if one spouse dies without a will, the other will automatically inherit at least a third of the decedent’s estate.  In addition, married couples are able to file taxes jointly and receive social security benefits from their spouse.  They are also entitled to visit their spouse in the hospital and make medical decisions on his/her behalf.

What seems ironic is that by being able to marry, same-sex couples are now also able to divorce wherever they may live.  Prior to this landmark decision, couples who married in States where same-sex marriage was legal and moved to States where it was not, were not able to divorce if the marriage went south.  Our divorce laws are designed to give property and other financial rights to couples who were once married.  Without such rights, there is no standard methodology for dividing property that was acquired during the marital relationship, nor is there any right for a dependent spouse to receive support.

What remains to be seen with the advent of marriage equality, is whether same-sex couples will be given the green light to adopt children as a couple.  If they decide to have children through alternative reproduction technology (“ART”), i.e. a surrogate, egg donor or sperm donor, will both spouses be deemed the legal parents of the child by virtue of their marriage, although one of them has no biological connection to the child?  Once all married couples are treated the same, then we will have true marriage equality.

This morning, I appeared on Fox29 in Philadelphia where I discussed and commented on a recent case out of Brooklyn, New York.  In this matter, a divorcing party was granted permission to serve initial process by way of Facebook.  In New York, like many jurisdictions, an initial divorce summons or divorce complaint must be served by personal service, and if the other party cannot be found after diligent search, a court may allow alternate means of service such as publishing notice in a local newspaper.  The rules governing service of initial process are very specific and usually very limited, until now, that is.

In the Brooklyn case, the wife demonstrated to the Judge that she spent significant time, with no success, searching for her estranged husband in order to serve him with the divorce.  The only way she knew how to communicate with her husband was via her Facebook account.  Thus, the Judge granted her permission to serve divorce papers through social media.

This case is noteworthy for a number of reasons.  First, courts are usually slow to embrace technology.  For example, in many jurisdictions pleadings in divorce litigation, such as complaints, motions, etc. cannot even be filed with the court electronically.  And service of these documents on the other party cannot even be accomplished by facsimile or emails.  Thus, allowing a party to serve a complaint by Facebook is a huge leap in terms of efficient use of technology.

Second, divorce and family law attorneys usually advise clients to be circumspect in their use of social media.  After all, it is no secret that communications on social media sometimes cause marital rifts in the first place which may eventually lead to divorce.  Additionally, we have all heard horror stories of people posting inappropriate comments and pictures on social media, some of which end up as evidence in divorce and/or custody trials.  So, using social media to assist in the process of moving a divorce forward in a more positive manner is a refreshing concept.

Will service of complaints by social media become the norm in divorce cases?  I think not.  However, this case will serve as a landmark in giving people a viable alternative to present to the court in those unusual situations where the other party cannot be located by any other means.  Eventually, the courts will catch up to current technology, and a case such as this is a step in the right direction.

Figuring out taxes when going through a divorce is challenging for most.  The attached post (click here) that I wrote for Avvo’s Naked Law Blog gives some important tips to make tax time easier.