Picking the Right Process – Uncontested Divorce vs. Kitchen Table Mediation

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Despite what popular culture tells us, it is very common for people who are getting a divorce to reach their own agreements.  Typically people who reach their own agreements come up with the “big picture” agreement but still need some assistance fine tuning the details or drafting documents.  It’s at this point where one person will usually call a lawyer or mediator and say they want to do an uncontested divorce.  Although an uncontested divorce may make sense in your particular situation, kitchen table mediation should be considered as well.

Uncontested Divorce.  An uncontested divorce involves one lawyer working with one client to draft the agreement the parties have reached.  Alternatively, if no agreement has been reached, then the lawyer may work with the client to create a proposal to give to the other spouse.

The lawyer in an uncontested divorce only represents the spouse who hired him or her and cannot represent both people.  The job of the lawyer is to provide legal advice to the client who hired the lawyer and to draft the documents on his or her behalf.  Clients who call about an uncontested divorce are often disappointed to learn that one lawyer cannot represent both clients even if the clients have reached their own agreement.

You can learn more about uncontested divorce here.

Kitchen Table Mediation.  In kitchen table mediation both clients work with one mediator to fine tune the agreements they have already reached.  If the clients have not already reached their own agreements then the mediator can work with both of them to create a mutually beneficial settlement.  Once a complete agreement has been reached the mediator drafts the documents on behalf of both clients.  The mediator works with both people but does not represent either person and cannot provide legal advice to either person.

You can learn more about kitchen table mediation here.

Uncontested vs. Kitchen Table Mediation.  The main difference between these two processes is that both clients participate in the kitchen table mediation whereas only one client participates in the uncontested divorce.  One of the potential issues with an uncontested divorce is that the person who did not hire the lawyer may be concerned that the documents were drafted by “their ex’s lawyer.”  This may make the non-hiring spouse suspicious and cause them to hire their own lawyer to review the documents.  Although there is nothing wrong with this, it usually creates a certain level of mistrust and often adds more expense than the clients were planning on.

Kitchen Table Mediation tends to cost less and take less time for a couple of reasons.  First, in kitchen table mediation both clients receive the same information at the same time from a neutral source, i.e., the mediator.  Instead of getting conflicting advice, clients receive neutral information which they can evaluate for themselves.  Next, both clients get the benefit of offering input in the drafting of the judgment instead of one lawyer drafting the documents on behalf of just one person.  Since the

mediator worked with both clients it is more likely that the documents will reflect the agreement that the parties reached (versus one lawyer drafting on behalf of his or her client).

The Verdict.  If both people are willing to participate in the process then kitchen table mediation usually makes more sense than an uncontested divorce.  However, if someone is not willing to come and meet with their spouse and the mediator then an uncontested divorce may be the better option.

Do I NEED a mediator?

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Occasionally people will ask something like this: “We have figured out our entire agreement. Do we really need a mediator?” The answer is – no, you do not need a mediator – but it’s probably a good idea to have one. There are usually two main concerns someone has when they ask this question.

Concern #1 – We are getting along really well – we don’t want a mediator (or lawyer) to screw that up!

This is a fair concern. Rightly or wrongly, lawyers have a reputation for creating arguments rather than solving problems. However, a mediator is not acting as a lawyer (although many mediators are also lawyers). The mediator’s job is to work with both clients to help develop an agreement that will work well for each of them. A really good mediator will help identify shared interests which will “enlarge the pie” for both clients. In short, a skilled mediator should improve the situation, not make it worse.

Concern #2 – We have figured everything out – we don’t actually need to mediate anything!

You are probably right at a high level. However, there are always at least some details that have been overlooked. Instead of mediating, the mediator in this situation can help you fine-tune the agreement you have already reached or figure out if there is anything you have overlooked.

Here’s an example: It is common for people to decide that one person is going to keep the house and buy the other person out. Here is what they may not have considered:

• How will they get the other person off the mortgage and in what timeframe?
• What happens if the other person cannot be removed from the mortgage?
• Should the non-owner be removed from the deed? What happens if the owner dies while the non-owner is still one the mortgage if the non-owner has been removed from the deed?

The mediator in this situation isn’t really mediating, per se. Rather, he or she is acting as a creative problem-solver to help you optimize the agreement you have already reached.

So why hire a mediator in this situation?

Reason #1 – This is probably your first or second divorce. The mediator has dealt with hundreds of divorces.

Experience counts for a lot. Even if you think you have covered every possible detail, the mediator will almost certainly offer some insight or help generate some idea that you had not considered.

Reason #2 – The “do-it-yourself” paperwork is more complicated than it seems.

There are several options for online divorce paperwork. The forms you fill out yourself are really only suitable for very straightforward situations with little or no complexity. You can also pay an online service or a paralegal service but these are often riddled with errors and not sufficient in highly detailed agreements.

A mediator who is also lawyer can draft all of the paperwork for you and submit it on your behalf.

In short, a mediator can provide valuable insight even if you think you have already figured everything out. A mediator can also prepare the paperwork on your behalf.

Health Insurance, Divorce and the Affordable Care Act

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One of the biggest concerns for people going through divorce is losing health insurance. The Affordable Care Act (aka “Obamacare”) significantly changed the way health insurance is dealt with in divorce. In short, the Affordable Care Act makes it much easier to obtain health insurance coverage after you go through divorce. Here are the basics that you need to know:

Open Enrollment. Open Enrollment is the period of time when you have to apply for health insurance unless an exception applies (called a “special enrollment period”). The open enrollment period for 2016 is November 1, 2015 through January 31, 2016.

Special Enrollment Period. You can apply for health insurance during a “special enrollment period” if you have 1) a qualifying life event or 2) other complicated situation.

Qualifying Life Event. There are many different qualifying events. The one that most commonly applies in a family law situation is divorce. Other qualifying life events that may occur during the divorce process include loss of job, loss of health insurance coverage or significant reduction in income. If you do not qualify under one of these scenarios, you should determine if there are other qualifying life events that may apply in your situation. If you are not eligible under a qualifying life event, then you should determine whether you can apply as a “complicated situation.”

Complicated Situation. If you have a particularly complicated situation but do not have a “qualifying life event”, you should discuss your circumstances with a health insurance broker or other HealthCare.gov worker. Your circumstances may still qualify you for a special enrollment period. Domestic abuse and spousal abandonment are two situations which may qualify as a complicated situation. There are potentially other situations which may qualify you as well.

COBRA. COBRA is a federal law which was the basis for maintaining health insurance after divorce prior to the passage of the Affordable Care Act. COBRA allows you to maintain the same health insurance plan you have had for up to 36 months. However, COBRA is often expensive and does not apply in all situations (e.g., the employer must have at least 20 employees). COBRA may still be a good option if you need to maintain your specific health insurance plan.

Tip: You may be eligible for COBRA through your soon-to-be-ex’s employer and a private policy through the Affordable Care Act. You should check to see how much COBRA costs and compare it to the cost of a plan through the Affordable Care Act. Cost is obviously a significant consideration, but you should also compare the level of coverage and whether your preferred healthcare providers are covered under the new plan.

Tip: You can apply for health insurance through Healthcare.gov on your own or you can work with a health insurance broker (some states run their own individual exchanges although Oregon no longer does). You do not pay a health insurance broker for their services. Health insurance brokers get paid by the insurance companies. It may make sense to work with a broker since there is no additional cost to you and they know how to navigate the health insurance system. One health insurance broker you may consider using is Portland, Oregon based Century Benefits.

End of Prior Coverage. Generally speaking you will continue to be covered under your ex-spouse’s health insurance through his or her employer through the end of the month in which the divorce is final. However, some employers will terminate coverage for a now-former spouse immediately upon learning about the divorce. It is important for the employed spouse to check with the employer before the divorce is final to learn when the ex-spouse will be removed from coverage. This information should be shared with the spouse who will be losing coverage.

Legal Separation. It is fairly common for people to get a legal separation rather than a divorce so that the former spouse can continue health insurance benefits. If you are considering a legal separation for health insurance reasons it is necessary that you check with your employer to determine whether the employer treats legally separated spouses as married or as divorced. Your employer’s HR department should be able to provide you with this information.

Summary. It is much easier to obtain health insurance after a divorce than it used to be. However, there are specific timelines that may apply to your situation. It is important that you obtain information about health insurance before you get divorced so that you have a plan for insurance once the divorce is final. You can obtain more information through OregonHealthCare.gov or HealthCare.gov.

This is only an overview. You should discuss the specifics of your situation with a health insurance broker or other health insurance professional.