I. Introduction to Virginia Divorce Mediation: A Step-by-Step Guide to a Smooth Resolution

Virginia divorce mediation is a process where the spouses use a third-party neutral, i.e., a Virginia divorce mediator, to assist them in reaching a comprehensive divorce settlement agreement. This agreement may be called a Marital Settlement Agreement or a Separation Agreement or a Property Settlement Agreement or some combination of these names—but the title is stylistic— regardless of title, these documents all do the same thing: they detail the terms of the divorcing couple’s settlement.  

When spouses decide to go through the divorce process via Northern Virginia divorce mediation, they are, in effect, deciding to take control of decisions which may impact their lives, and which might otherwise be made in court by a judge. If successful in mediation, divorcing couples often avoid lengthy discovery processes and the stress of an equitable distribution and/or child custody trial. The importance of mediation’s added benefit of preserving familial relationships also cannot be overstated.

In order to obtain an uncontested divorce in Virginia, whether in Fairfax County, Arlington County, or elsewhere, couples must (1) be separated for the required statutory period (6 months if there are no minor children, 1 year if minor children are involved) and (2) have a fully executed Marital Settlement Agreement which settles all issues arising from the couple’s marriage. 

During the mediation process, the attorney mediators at Kales & Kales, will help you determine the terms of your settlement and will craft a Marital Settlement Agreement detailing those terms. Broadly, a Marital Settlement Agreement must tell the court: (1) How will the couple’s property be divided? (2) How will the couple’s debt be allocated? (3) Will there be spousal support? If so, what is the amount, duration, and modifiability standard of the support? When will spousal support terminate? (4) What is the parties’ parenting plan? (5) How will the children be supported/how will the children’s expenses be handled? and, finally, (6) How will the parties handle health insurance and unreimbursed medical expenses both for themselves and for their children?

Although it may seem daunting, at Kales & Kales, we have the experience and know-how to help you reach settlement. Mediation allows us to explore both parties’ interests, goals and motivations and then brainstorm creative and workable solutions.

II. Preparation Phase

A.  Choosing A Virginia Divorce Mediator.

There are many places to find a mediator. One merely needs to plug “best divorce mediators near me” into their preferred search engine and a number of possible mediators will pop up. It is also likely that if one speaks to close friends and family, someone will have either gone through Virginia divorce mediation or know someone who has. Referrals are always a good place to start. Getting a list of potential mediators is, no doubt, the easy part. The harder part is choosing the right mediator for you.

What types of characteristics should you be looking for in a mediator?

First, divorcing couples should seek out mediators with experience and knowledge about their subject area. Some divorce mediators are not attorneys. At Kales & Kales, PLC, Jonathan and Amy Kales are attorneys and have been practicing law for many years. They began practicing law together in 2004. Although they no longer litigate, they did for many years. They are well versed in the intricacies of divorce law in Virginia, and each has had mediation training.

Another question divorcing couples seeking mediation should ask is about the mediator’s approach. Some mediators will examine the facts of a divorcing couple’s case and apply the law as they believe a court would likely do and lean on the parties to settle that way. Other mediators, including the mediators at Kales & Kales, PLC, will listen to the facts of a divorcing couple’s case, but they will also listen to their concerns, goals, and interests. Although the law is always present and can serve as a guide at times of impasse or as background information, we are creative with solutions and may come up with ideas that a court might not. We understand agreements are definitely not “one size fits all.”

Lastly, divorcing couples should look for a mediator who is both a good personality match and someone they can trust.  You certainly do not have to become best friends with your divorce mediator, but having a safe, productive relationship is a must. A unique aspect of Kales & Kales is the clients who retain us get two mediators for the price of one. Amy & Jonathan Kales are married and the mediations at Kales & Kales are co-mediations. Amy & Jonathan work well together, and their strengths are complementary. We have found having both a male and female mediator tends to put couples at ease. Amy & Jonathan sometimes hear information differently and often will describe solutions or points of law in a different way. Amy tends to be a more linear thinker, and Jonathan tends to be a little more outside of the box. At Kales & Kales, we strive to treat our clients with respect and patience, and we always try to provide an atmosphere where both clients can be open and have their voices heard.

B.  Preparing to Mediate at Kales & Kales

How do you get successful results in Virginia divorce mediation? Prepare! Prepare! Prepare! In order to assist divorcing couples in preparing for mediation with Kales & Kales, PLC, we ask divorcing couples to complete some documents. The documents not only help our clients prepare for mediation, they also help us get to know our clients before we sit down with them to mediate.

The first document we’ll need prior to starting a mediation is a simple intake form.  Our intake form asks for certain details, including the date of the divorcing couple’s marriage, the number and ages of their children if applicable, and the date of the parties’ separation. We’ll also ask the divorcing couple to sign an Agreement to Mediate. This document is the document through which Kales & Kales, PLC and its mediation clients enter the mediation process. It explains the firm’s billing practices as well as certain ethical aspects and legal implications of mediation.

Finally, the largest piece of paperwork Kales & Kales will ask a divorcing couple to complete prior to their first mediation session is a Financial Disclosure worksheet. This document is important because it gives the divorcing couple a good idea as to the property issues which must be decided. Some people are surprised to learn property includes not only your bank accounts and your home, it also includes such things as retirement accounts, pensions, pets, personal property, whole life insurance policies, and 529 accounts. By identifying accounts and their values, parties start to get an idea as to what needs to be discussed. Where is there agreement?  Where will assistance be needed in generating and discussing options? 

Prior to entering the mediation process, couples should have a good grasp on their assets and their debts.  If one spouse handled all of the finances prior to the separation, mediation can be the forum through which information is exchanged. If nothing else, the Financial Disclosure form allows individuals to learn what it is they don’t know and will need to learn.

III. Virginia Divorce Mediation Sessions

The first mediation session at Kales & Kales will always begin with a description of the process. Amy & Jonathan will share what the couples can expect in the first and follow-up mediation sessions, as well as information they must know about mediation in general and about administrative matters.

After the background, we’ll move right away into the substance of the mediation.  The issues which must be covered in the Marital Settlement Agreement are outlined and are shared with the couple. The outline can be approached in a number of ways.  Sometimes we start with the most difficult issue, i.e., the area where spouses will need the most help finding a workable solution; sometimes we start with the issues where the spouses have already reached agreement or they feel they will reach agreement upon easily; and finally, sometimes we just start at the top and work our way down. Often times, during mediations sessions, Amy & Jonathan will provide the legal background on a particular issue. If a couple is unsure how to start, Amy & Jonathan will help them generate options to solve the issue at hand. 

Mediation sessions generally last between 2-3 hours. We have discovered during our years of practice that couples start to reach the point of diminishing returns somewhere between two and three hours into the sessions. On average, it takes couples 2-3 sessions of 2-3 hours each to reach an agreement in principle. Kales & Kales will, of course, continue to work with you if you move beyond three sessions and you want to keep trying. It is also important to know there is no minimum number of sessions or minimum time. You are only charged for the time that you use. So, if you only use one session to reach agreement, you’ll only be charged for that time.

Once we have worked our way through the questions to be answered, Amy & Jonathan will work on drafting a Marital Settlement Agreement from the notes they took during the mediation sessions. It is important to note, because Kales & Kales when serving as a mediator, is a third-party neutral, we always advise clients to get individual legal advice, if not throughout the process, then at a minimum, prior to signing the Marital Settlement

IV. Post-Mediation Phase

Once the parties have reached a comprehensive settlement and have signed a Marital Settlement Agreement, all that remains to be done is to process the divorce through the court system. When serving as mediators, the attorneys at Kales & Kales, are neutral third parties and therefore cannot assist mediation clients with the court process; however, we’re always willing to provide a referral.

The court process, once an Agreement has been signed, is relatively straight forward: (1) One party becomes the Plaintiff and files a Complaint for Divorce; (2) The other party becomes the Defendant and will either file an Answer to the Complaint for Divorce or execute an Acceptance of Service/Waiver of Notice; (3) The Plaintiff will execute an Affidavit, Deposition or Statement in Support of Divorce; and finally, (4) The parties will submit a Final Order of Divorce to the court for entry, which the court will ultimately sign, making the divorce final.

The Final Order of Divorce incorporates the Marital Settlement Agreement which means if either party were to violate the Marital Settlement Agreement, they would also be violating a court order and could be held in contempt of court for doing so. Simply put, it is the wisest course of action to follow the Agreement. If you have a disagreement as to the meaning of the Agreement or if circumstances have changed, there are processes available to have the Agreement modified, amended, or explained. And, of course, returning to mediation is always an option.

V. Conclusion

Virginia divorce mediation is an alternative form of dispute resolution which, if successful, allows divorcing couples to avoid the stress of an equitable distribution and/or custody trial. This guide was meant to provide background information about the process from start to finish.  If you have any questions, please contact us today at (703) 896-7580 or contactus@kaleslaw.com.

VI. FAQs

• How long does it take to get a divorce in Virginia?

Once a couple has been separated for the required statutory period and has an executed Marital Settlement Agreement, it generally takes between 3-6 weeks for the divorce to be final. This is an estimate and is reliant upon both parties participating in the process and the court finding the file to be in order.

• What is the difference between divorce mediation and litigation?

A litigated divorce is one which is filed prior to the parties reaching an agreement as to the issues resulting from their marriage. The court schedules trial dates and discovery deadlines. The parties enter into negotiations with their attorneys as their representatives. If they are unable to settle their case, there will be a trial and the judge will determine the division of their property and the custody of their children.  

A mediated divorce is one where the parties attempt to settle their differences outside of the courtroom and reach decisions with the help of a third-party neutral. Although the parties are encouraged to have legal representation, the parties attend mediation sessions together with the hope of reaching settlement and avoiding court.

• What are the benefits of choosing mediation over litigation?

Mediation is generally less expensive than a litigated divorce. In addition, the parties are able to make their own decisions on issues which impact their lives. Mediation generally has a lower emotional cost as well. Couples who choose mediation are usually less adversarial.

• Is mediation suitable for high-conflict divorces?

Mediation is suitable for couples with a conflict level of up to a 5, or maybe a 6, on a scale of 1-10, with 10 being the highest level of conflict.  We do understand that all divorcing couples have some level of conflict.

• What happens if we can’t reach an agreement in mediation?

If the parties are unable to reach agreement in mediation, they can pursue a divorce through litigation or through the collaborative process.

• How confidential is the mediation process?

The mediation process is confidential. Under Virginia law, you, your spouse, and the mediator may not share or disclose anything you say or any documents you provide during the mediation process (including during screening and intake). There are a few exceptions to this confidentiality rule, including: (1) the written and signed Marital Settlement Agreement that results from the mediation (2) documents that weren’t prepared specifically for mediation and would otherwise be discoverable and (3) threats to injure someone.

• Can we have legal representation during mediation?

Yes. In fact, at Kales & Kales, we encourage you to have legal representation during the process. Although the vast majority of our mediation clients do not have their individual counsel present during mediation sessions, we are not opposed to it. And it is recommended that parties, at a minimum, have the Marital Settlement Agreement reviewed by an attorney prior to signing it.

• What if I change my mind after signing the Marital Settlement Agreement?

That depends. Does your ex or soon to be ex-spouse also want to change the Agreement? If so, an Addendum to your Marital Settlement Agreement can be drafted and incorporated into a court order.

If your ex or soon to be ex-spouse does not agree to the change, has there been a material change of circumstances which would justify a change in custody, child support or spousal support? If so, you can petition the court for a change.  Adult financial settlements are generally final. (Exceptions may apply, for example, if the Agreement was signed under duress).

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