After doing your due diligence, you and your spouse have decided to pursue a Northern Virginia divorce through mediation. The first thing you should do is pat yourself on the back as you have made a very good decision amid the process of reaching the very difficult decision to end your marriage.
Mediation avoids the high emotional and financial costs of traditional litigation and puts you and your spouse in the driver’s seat. Mediation allows you and your spouse to work out, in a safe environment and with the help of your mediator(s), the details of your settlement: What will happen with your property and any debts you may have? What will your parenting plan look like? How will your child’s medical and other expenses be handled? Will there be spousal support? If so, what are the details regarding that? Before working out the details of the settlement, however, it is a good idea to understand the role of your mediator. What can your mediator do? And, just as importantly, what is your mediator not permitted to do?
At Kales & Kales, PLC, both Amy and Jonathan Kales are attorneys. Jonathan has been practicing family and divorce law exclusively for over twenty years, and Amy joined Jonathan in his practice in 2004. We are well versed in handling many different types of cases, including collaborative divorces, uncontested divorces, and traditional litigation cases. When we are wearing our mediator hats, however, our roles are a bit different from when we are representing our clients individually.
When we mediate for you, whether online or in person, we are not acting as advocates, rather we are neutral. This means we represent neither party individually; hence, we cannot point out red flags for either spouse. So, while we can point out what the law is, quote statutes, and tell you what we think the result would be if a particular issue were litigated in court, we cannot tell you if a particular decision may be for or against your best interest. We can tell you what is typical, and we can use our vast experience to come up with creative solutions to solve the issues which need to be resolved for your Marital Settlement Agreement. While we always do our best to make sure you are informed, we cannot recommend you take any course of action. Because we cannot act as advocates, we always advise our mediation clients to have their Marital Settlement Agreement reviewed by a Virginia attorney that represents only them before they sign the Marital Settlement Agreement. Independent attorney review is not required to be sure, but we always recommend it.
During your mediation sessions, we will meet with you and go over issues which are required to be in your settlement. When you and your spouse have reached an agreement in principle, we will draft a comprehensive Marital Settlement Agreement. The Marital Settlement Agreement itself is only part of the divorce process, however, and that document, alone, does not divorce you.
Once you have an executed Marital Settlement Agreement (i.e., it has been signed by both parties), and you have been divorced for the statutorily required amount of time (i.e., 6 months with no minor children and 1 year with minor children), you can proceed with the processing of your now uncontested divorce through the court system. The court in which you file depends on where you live. For example, Arlington County residents file for divorce in the Arlington Circuit Court, Fairfax County residents file for divorce in the Fairfax Circuit Court, etc.
Although we, as your mediators, can draft the Marital Settlement Agreement, we are not permitted to usher that agreement through the court process under Virginia law. This is because, in a divorce case, even when it’s an uncontested divorce, one party must be the plaintiff, and the other party must be the defendant. The plaintiff and the defendant have necessarily opposed interests. If one of the parties were to stop cooperating in the divorce process for example, a mediator would have no ability to remedy the situation. Although when we act as mediators, we are not able to get you from the starting line of the divorce process to the finish line, i.e., your actual divorce, we are able to help you work through what is most often the most complicated, important part, i.e., the divorce settlement.