Mediation is about to blow up... what next?

[iluminati]

My ex-wife and I are mediating to settle out the terms of divorce.  My ex stalled the proceedings for 8 months with excuse after excuse.  First, she couldn't be there because of work, then she couldn't be there because she wasn't work.  Back and forth we went.  Also, she's complaining about child support because she can't pay the statutory minimum and pay her rent.  Now, I did manage to get realistic budget numbers with proof, and she's right.  (We also live in the NYC Tri-State area, so you can imagine how cost of living is high.)  Finally, we get to a mediator a couple of weeks ago, and I capitulate on the child support just so I can get it overwith.  Effectively, due to some tax considerations, she'll owe nothing in child support on a year-to-year basis unless 1) she gets help, 2) she moves back with her family or 3) I make enough money that the child deduction is moot, which would mean I wouldn't need support anyway.

Despite all of this, her lawyer is asking for even more breaks on child support, despite going below the statutory limit and giving her time to catch up to the full amount in the event her income ever improves.  My lawyer is recommending that I leave mediation and file for divorce over irreconcilable differences.  Now, the divorce would cost me more money to file, but I'm willing to move forward.  Is there anything worth salvaging in the mediated separation agreement that I have?  Should I ignore it?  Should I use it as evidence of willingness to bargain in good faith?  What should I do?

[ForeverDad]

Is there anything worth salvaging in the mediated separation agreement that I have?  Should I ignore it?

It depends on how your state handles partially agreed terms.  Can you report "we agreed on all issues except X, Y & Z"?

Should I use it as evidence of willingness to bargain in good faith?

Does your state allow for partial mediation successes to be reported to the court?  My state apparently is an all-or-nothing state.

What should I do?

It's astounding how often a settlement is reached when a trial or major court hearing is looming, that is, on the proverbial court house steps.  My consensus in most of these situations is that the other parent will continue delaying until you move to the next steps that give real incentive for serious negotiation.  Many ex-spouses either fear court will make them look bad in court or don't know that they will look bad in court.

My case, my ex (1) refused to settle because she had a favorable temporary order and delayed the case as long as she could for nearly two years and (2) settled on Trial Morning because the custody evaluation was unfavorable for her.

However, don't be fooled into thinking that the court will see things totally neutrally.  It's amazing how much latitude parents of a female gender (or a messed up parent, as LivednLearned can confirm) are given in family court.  It may be technically gender neutral (or squeaky wheel neutral) by law but rules, policies, procedures and decisions are often written in such a way to favor one gender over the other.

In my case, my ex twice was ordered to receive child support even though she has never provide proof of income or any tax filings.  (Yes, partly I'm responsible since we didn't demand it.)  The court accepted "imputed" amounts based on minimum wage calculations.  Recently we changed from equal time to me having majority time during the school year.  Though the order repeatedly mentioned her poor behaviors, and she was twice previously given child support without providing any financial data except "imputed" figures, "Father offered no financial or other information to allow the Court to determine what amount, if any, Mother should pay in child support. Therefore, Mother shall not be ordered to pay child support at this time."

[iluminati]

I did my homework on partial mediation settlements,  and my state is an all or nothing state as well.  The only way I could get a partial settlement is if I proved part of it violated state law somehow. 

Also,  you have a point about trial being a motivating factor.  This morning the emails have come fast and furious looking to agree to terms.  It's just like everything else in the marriage: everything has to be dealt with at gunpoint to get anything to happen.  It's frustrating because most people aren't going to go to war over everything in the world,  but force seems to be the only language they understand.  Oh well.

[ForeverDad]

Boundaries.  Reasonable but firm ones.  Otherwise any agreement, if there is one, will be nitpicked, reinterpreted and fall apart before it gets to court.  "We haven't reached agreement in mediation, therefore I will have the court decide."