I am a divorce mediator and coach, who after thirty years of practice is more convinced than ever that most divorcing people are getting screwed by their lawyers and the legal system. AMA!
I am Sam Margulies and was one of the early pioneers in divorce mediation in the United States. I shifted from representing divorce clients in adversary proceedings to mediation because I was appalled by the unnecessary carnage and waste of resources I observed in the court system. Although most states were shifting to no-fault divorce, lawyers did not get the message and continued to fan the flames and encourage their clients to fight. But typically by the end, after clients spent years in limbo and tens of thousands on legal fees to prepare for trial, the lawyers would negotiate a settlement and the case would be over. Yet this was often the same settlement that could have been negotiated in the first few months at a fraction of the cost and in a fraction of the time. Two things became evident to me:
- The system serves the welfare of lawyers; not clients.
- Clients accept the system because they are fed a bunch of myths and come to believe that their “tough” lawyers will fight for them and win more of the money and all of the kids.
It was then, and still is, bullshit. The popular culture continues to distort the realities of divorce. So people continue to believe that it’s all about fighting in court when in reality, it’s all about negotiating a settlement that lets all family members thrive. The average legal fee for divorce in the US is now between $15,000 and $20,000 per person. The average mediation fee in my experience is less than $2,000 and when we’re done the parents can still talk to each other and cooperate for the benefit of the kids. My mission is to convince people contemplating divorce to investigate this humane, common sense alternative to fighting through lawyers and ruining their lives.
I just launched my new Youtube Channel called "Divorce For Grown Ups", so let me know what you think of my first video (in the proofs)!
(IAMA Proof) http://youtu.be/qXygtkn9S3E (Part 1 and 2 of my first video for my new Youtube Channel): http://youtu.be/I0s1wdaeC8k and http://youtu.be/kryP-Lfav5A
Website: www.SamMargulies.com Facebook: https://www.facebook.com/MarguliesMediatedDivorce Twitter.com: https://twitter.com/sammargulies
Divorce lawyers are paid by the hour. The more they fight the more time they spend and the more money they make. This is the only profession in which the bigger an asshole you are the more money you make.
Not all lawyers are like that in my experience. Lots of jobs involve charging by the hour. I know that I'm better off from the times I have sought legal advice.
I do agree that if you can use mediation to solve any problem then of course that will be cheaper and better. That is the case for commercial litigation anyway. The problem is, of course, when one side won't be reasonable.
You are correct. There are always those who just can't be reasonable. And there are certainly some lawyers who give very good advice,
What sort of material objects have you seen been fought over that you scratch your head about?
ie: my Mother and Father had all of the property decided over except a hand-made baby cradle that they went to court over.
I mediated a custody fight over a parrot. I also was in court once waiting for a trial to begin and both clients were in agreement over everything but a used dresser. The struggle ended when I told my client that I had a dresser ion my attic and she could have it.
I live in TN. My husband just left 2 weeks ago. He wants to go through a mediator, we have no money for lawyers. I don't want a divorce. I am hurt and shocked at all of this. We have no property or money to fight over. We have a 6 year old son. Does a mediator work for one side? Should I find one myself? Can I trust someone he picks?
You need to resolve how you will parent your son and an how each of you will b e supported. Mediation is the only way that makes any sense for you. Choosing a mediator must be a mutual effort. Look online for mediators in your area and talk to several. If you find one you like suggest that mediator to your husband an d ask him to check out that mediator. For more information on how to find a mediator go to my website sammargulies.com and request the free book available on the site.
in and adversarial proceeding, each lawyer (supposedly) represents each client. But to whom does a mediator have ethical duty? And who pays the mediator, is it 50/50?
What is the best way for a divorcing couple, who may not see eye-to eye on anything, to pick a mediator that they both if not like at least respect?
Mediators do not represent either party. They are there to facilitate the discussions and negotiations of the couple. They make it possible for the couple to have discussions that they would otherwise be unable to have. The mediator has an ethical duty to the integrity of the process. When I mediate I am there to help all members of the family thrive. Picking a mediator is not so difficult that the couple need have a big struggle. They just keep looking until they find one they both trust.
sounds kind of like a divorce therapist. as a follow up, has a couple for whom you've been mediating decided to stay married and work it out? in other words have you saved marriages while working as a mediator? is that something you keep in mind while mediating, or is it more that by the time a couple comes to you they both have decided to end it?
In almost all cases by the time a couple comes to see me their marriage is dead. I do not think that it is a service to the couple for me to push them toward reconciliation. In a few cases both parties are so ambivalent about the divorce that I refer them to a good therapist to see if this is what they really want to do. But I seldom see couples reconcile once they have explored divorce.
About 70% of divorces are initiated by wives. The most common reason is that there is a failure of communication and therefore no intimacy. They are bored and want more out of life than their insensitive husbands can offer.
Divorced as of 2011. What a miserable experience I wouldn't wish on anyone.
I hired a lawyer. He was lazy. I wasn't local. He wouldn't communicate, wouldn't answer the phone, put no effort in, and I swear he was in cahoots with the other lawyer. Anyway, he recommended a mediator, and everything finally looked like I would get a fair shake. Really put the time in and established good rapport and put my relationship with my son on display. She even said to me "it's obvious you and your son have a much better relationship" in comparison to his mother.
Get to court and the mediator flipped on me and pulled the "both of these parents are amazing and the child would excel with either, Judge".
How does that make sense? Isn't it your job to recommend someone, in the child's best interest? She never spent a minute with the child alone to talk with him.
Long story short, she got possession of our son and moved overseas with the military and my relationship with him is crumbling, one day at a time.
I have zero faith in the legal system, lawyers and mediators. I hope I never have the need for legal representation again.
You have obviously had a bad time. You would have been better off if you had a private mediator from the beginning and had not become so polarized through the lawyers. The job of mediator is not to make recommendations to the judge but rather to bring the two parties to agreement. There is a larger question of how you got into a custody fight in the first place as it is about the worst thing that can happen to a child.
I was dragged into court year after year by my ex over specific custody issues. He would take me to court over dropping her off at 4 PM rather than 7 PM. I gave up on having a lawyer after about 2 years of this; he continued to pay one. We were never offered a mediator. It went on for 10 years like this. How do you get a mediator when the other party doesn't want one?
In some jurisdictions there are court connected mediation programs, particularly for custody matters. In those jurisdictions a judge will usually order mediation. If there are nor such programs one could ask the court to order it. But generally, mediation works only when both parties desire a resolution.
What is the cheapest way to divorce someone?
It depends on whether there are children and if support an d property division are at issue. If so the cheapest way is mediation. If there are no issues and no kids you can usually do it yourself. Check online for the necessary forms.
Are you happily married? if so how long and what makes it work? If divorced, why?
I am in the process of divorce. The "why" is private.
I didnt mean to ask specifics, more like if you couldve done something differently, what would that be?. Sorry if my question seemed to be prying
If I had a do-over I would have spent more time getting to know her. I am convinced you cannot know another person for at least two years.
I have heard from Legal Aid lawyers that things can be very contentious and it is not about the lawyer trying to earn a big paycheque. They get paid no matter what happens in the divorce. In fact, I have heard that they wished they COULD bill their clients for all the, well, arguing, because it may be an incentive for the clients to work things out and take the reasonable advice being offered by their lawyers. Do you think the 'Legal Aid' context is different?
Legal aid lawyers are on salary. They do not bill by the hour. And people who qualify for legal aid could not pay by the hour in any event.
Right, so presumably their cases would resolve quicker, as they are not motivated by the same things you cite up top (lawyers trying to make things complicated so they can make money). But to my knowledge, their court matters do not resolve quicker than private lawyers' court matters. What I'm suggesting is that it may be about the clients and basic human nature - not about greedy lawyers.
In the US only about one percent of divorces go to trial; the rest all settle by negotiation. So those who actually go to trial are the extreme exception to the rule. There are, of course, always a few people who need the soap opera of the court room and who drag everything out. But they are the exception.
What is he main cause of divorce in your opinion and how many marriages have you saved. is their couple you think divorce is best for them ?
I don't know that I have saved any marriages. There are many causes of divorce. The most common I have seen is the cumulative effect of neglect; the failure to maintain the marriage and do necessary repair work when a relationship becomes frayed. I think some couples reach a level of misery in which there is nothing left. That marriage is dead and all that is left to do is provide a dignified burial.
Are prenups worth it for people who aren't wealthy? Are they worth it at all?
I don't have much use for prenups. They are usually used to protect the economically stronger party and speak to problems involving power, sharing and trust. Not a very good recipe for an intimate relationship.
What is the best way to protect myself before I am in a divorce hearing?
Talk to your spouse and find a mediator. Most divorce judges are not among the intellectual giants of the bar. You take your life in your hands when you submit your fate to such a mediocre mind. Protect yourself by making it unnecessary to have a divorce hearing.l
What would be your advice to newlywed couples?
It would really depend on the couple. If they are twenty somethings it would be different than if they are fifty somethings. Generally my advice is to pay attention to the marriage. Most marriages die of neglect. They need continual repair and refreshment.l
You're right there, we've just passed our fifth anniversary and that advice definitely still applies!
We are on the precipace of taking my wife's ex back to court over visitation with their son. The child is 14 next month, has HATED going to his father's house for visitation for as long as he can remember
It's not petty childish reasons either. First and foremost there were issues with the stepmother. She openly admitted not liking the son. She treats her children with preference and the step son, well like a step son.
There are HUGE issues with cleanliness. The son is a clean, by the book, rules appreciator. The biological father is lax at cleaning, at best. There are bugs, roaches, everywhere. The son refuses to shower or bathe over there as the conditions of the bathroom disgust him so. He states that he often wakes in the night because he can feel bugs crawling on him.
Additionally the bio-father has NO concern for the sons desires. Son has an activity that he wants to participate in on a weekend when he supposed to be at his dad's, often the answer is simply, "too bad." The son and his father have attended counseling together though little change has come from it.
We are fed up. This man consistently uses visitation like a tool to exert authority of his son. He does NOT have joint custody, only visitation and fails to consult the custodial parent (my wife) when needed, i.e. recent holiday weekend visit he attempted to negate wifes right to first refusal while he was at work. His solution was for his wife (from whom he is currently estranged, not living together, and going through divorce proceedings) to watch the son. He has frequently made medical decisions regarding the sons well being without consulting the custodial parent, allowed the boy to suffer overnight with a broken ankle, because HE (the father, no medical training) didn't believe it to be broken. The mother recieved a call the next morning that she should meet them at the hospital.
I could go on, but I digress it will only make me appear vindictive and unforgiving. Long story short my son would rather not attend overnight visitation. He would prefer to visit at his own pace and will. The ex is CONVINCED that my wife and I vehemently impunge his character to the son. This is not the case. We encourage the son to engage his bio-father in as many methods of communication as possible. He has simply lost his "oomph," to do so. At 14 he is amazingly cogniscent of the actual goings on regardless of what he is told. He has surmised and come to his own conclusions that his bio-father is a "bad" person, a habitual liar, and extremely manipulative. He has called his father out in this in therapy on multiple occassions, with no change in behavior.
We have a high priced attorney on retainer. She tells us that in our state, Oklahoma, the court cares little for the childs wants and without legitimate cause for concern there isn't much we can do but wait until he's eighteen.
Do you have any suggestions?
I am skeptical that you are getting accurate advice from your "high priced" lawyer. There are several things you can try. First, have the child interviewed by any of the psychologists who regularly appear in court. If the psychologist determines that continued visitation ids not good for the boy he/she may become an ally in seeking redress from the court. You can also file a motion to modify or terminate visitation with the biological father and ask the court to appoint a neutral psychologist to review the entire situation. If your lawyer does not support you in this find a new lawyer. Every judge has a law clerk who spends a year or two learning the ropes in court before beginning to practice law. Find out if your judge had such a clerk three or four years ago and see if you can find that young lawyer. He/she has a good relationship with your judge. That would be a good lawyer for you to have.
From all the divorce horror stories I have heard over the years, I sort of have the understanding that the system is biased against men. From your experience, can you confirm this and what advice would you give to any would-be husband in terms of protecting themselves from the worst case scenario? Should a prenuptial agreement be a default option when getting married?
First, I cannot agree that the divorce system is biased against men. Because men are the ones who more often pay support there is a natural tendency for then to feel unfairly treated. And I have seen many women who fare poorly when compared to their husbands.
As to prenups, I have long believed that if you feel you need a prenup to protect you against your spouse to be you should not get married.
Is divorce mediation anything like binding arbitration?
My biggest fear about getting a divorce is that I would not end up with primary custody of my kids. I'm happy and willing to pay spousal support, but I would never accept my wife getting primary custody.
I keep a running record of all the days my wife goes out in the evening (so I must cook and put the kids to bed), or when she goes out for the weekend (so I take care of the kids)... in case one day I might need to "prove" I am actually the primary caregiver.
I would divorce tomorrow if I could somehow know in advance I would be able to keep my kids as primary custody.
How would mediation help me in this situation? My wife thinks she's an awesome mother and would not likely accept any situation where she doesn't "get" the kids.
Mediation would not assure you primary custody. Mediation is about settlement which requires mutual agreement. Why would your wife agree to you having sole custody? Moreover, why would you want it? Among educated people the norm is becoming joint custody for many good reasons that I do not have space her to discuss. It sounds like you are headed for a train wreck that will leave your family in emotional and financial shambles.
My wifes ex husband refuses to go to mediation. He refuses to attend any of the co parenting counesling sessions ordered by their parenting consultant. Every so often another judge will get involved and suggest mediation. Its like they dont even know which cases they are working on.
She was all for it initially but he would do things like agree to it and then not show up. In your experience, is there a point where in a case, mediation is simply not an option? How can you get that across to attorneys and judges?
Her attorney needs to submit a letter to the judge detailing each refusal or resistance and ask the court to excuse your wife from further attempts at mediation. The lawyer also needs to request that the judge order the ex to pay your wife's legal fees each time his recalcitrance necessitates court action.
Im a teenage guy, and my parents recently got a divorce. My father is constantly spewing bullshit into my ears and getting me involved in everything. How can I tell him that I don't want him to be telling me all of this stuff? (I apologize, I may be asking a question that is not a part of your profession)
I think you should tell your father that you do not want to discuss this with him and that you will not respond to any further comment. If he persists ignore him.
If there's nothing that needs to be discussed as far as dividing material possessions and no sort of disagreements on the fact that one party is leaving and both parties are in agreement, do you need to bring in a lawyer or mediator?
If there are no issues of custody , support or property to divide you can probably do the divorce yourself. Consult the many websites you will find.
Do you think lawyers will ever change?
(Also, not all lawyers are soul sucking flame throwers. My average fee for divorce (before court fees) is $1500-3000 and I encourage mediation and communication.)
You appear to be a lawyer and one of those who is destined to go to heaven
Hi, Just out of curiosity, in your opinion , are there more women initiating divorces than men or is it the other way around and whats the most common reason?
Clearly, there are more women seeking divorce than men. About 70% of divorces are initiated by women. The most common reason is that the marriage has lost passion and intimacy. I other words it has become emotionally boring.
My parents are divorced. They are both lawyers, so did they screw themselves? Also, it took like 6 years, lawyers are freaking crazy.
It does seem a bit nuts to spend six years of one's life fighting a divorce. I know many marriages that have lasted that long. There is something about the legal culture that promotes mindless adversarial behavior. Let's hope it's not genetic.
Could you please explain how divorce mediation is different from traditional adversary proceedings?
Do you have any advice for people who are recently married or thinking about getting married?
Divorce mediation involves the use of a single impartial mediator to facilitate discussions between the spouses leading to agreement on all divorce related issues. Traditional adversary divorce involves the use of two lawyers who fight and struggle in an attempt to get more for their clients. The result is seldom different than the result of a mediated divorce except that it takes much longer, costs much more money and leaves you exhausted.
My advice for would be married is to know each other for a long time before considering marriage. Any defects you observe in the other will not improve with time; they will only get worse. You cannot fix people.
At 24 you are already legally emancipated in the US. Where are you?
If you read the book I wrote in 1989 and published in 1991 you will note that I figured it out some time ago.
I wish it were so easy to say who should not have gotten married and who should have married. When people who have been married 40 years divorce do you really think that you could identify the reasons from 40 years earlier that they should not have married? Life serves up many surprises. A couple that has been happily married for thirty years can encounter problems that tear them apart. Loss of a career, loss of a child or debilitating illness can test a couple in ways they have not been tested before and the marriage crumbles. But for that critical problem the marriage might have endured. I don't think it is all that easy to look back and say the couple should never have married. I was admitted to the bar in New Jersey in 1978.
What is the worst case of a woman using a child against her husband in divorce proceedings?
After a recent awakening to the mens rights movement I'm convinced that marriage is simply too much of a risk.
Its great to see a legal practitioner acting ethically :-) +1 Internet Point too you.
The worst case use of a child in divorce proceedings is a phony accusation of child abuse. This is the nuclear bomb of divorce because it is so difficult to prove a negative and the courts choose to err on the side of conservatism. But do not assume that this is only used by women as it has frequently been used by men as well.
As for marriage being too much of a risk, I'm not quite there yet particularly for younger people who plan to have children. For older people who will not have children I am beginning to think that ther are alternatives to marriage that may make more sense.
My parents divorce dragged on for several years and ended up costing them over $100,000 (it ended in 2009) and both of their attorney's said that it was "one of the worst" they had ever seen, but both of my parents claimed that they were following the advice of their attorneys. I don't know what to make of any of it, but do attorneys profit off of these sorts of divorces more than they would off of a quicker and less "nasty" divorce?
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