You and your spouse have decided, or have been ordered by the court, to utilize the services of a mediator to help reach a settlement in your divorce. But do you still need an attorney? The short answer is, it certainly can’t hurt to consult with an attorney before beginning the mediation process but it could be devastating if you don’t. What you must realize is regardless of the mediator’s qualifications he or she cannot give you legal advice, cannot advise you of your rights under the specific facts of your case and cannot tell you if the agreement you have just negotiated and about to sign is really in your or your family’s best interest.
Mediation is a fantastic process that allows you and your spouse to control the outcome of your divorce, creating a tailor made solution that considers all members of the family. But if you don’t know your rights and responsibilities under the law that controls divorce proceedings in your state, how can you possibly expect to reach a fair settlement. And please don’t be fooled into thinking that you can avoid your agreement after it is signed just because it is unfair. The court will allow you to enter into a bad agreement and will enforce that agreement against you if requested to do so by your former spouse.
All too often I have met with a prospective client who, after signing a mediated agreement, is seeking some way to avoid the once unrealized consequences of that agreement or seeking to enforce an agreement that is unfortunately written in such a way as to make it unenforceable. The following is just a small sample of some of the mistakes I have seen unrepresented couples make when reaching and drafting mediated divorce settlement agreements:
Agreeing to sell the marital home and distribute the proceeds of the same without addressing the details of what price the home should be listed at,which party shall be responsible for the carrying cost of the home until it is sold, which realtor shall be utilized to sell the home, etc…
One spouse agreeing to give up an asset because that spouse didn’t believe they were entitled to a share of the same or the inverse giving to the other party a share of an asset only to later learn that the other spouse had no legal claim to that asset in the first place. (i.e. not knowing what is and is not a marital asset and each parties’ respective rights regarding the same)
Improperly valuing an asset, more often than not a retirement account and thereby giving up thousands if not, hundreds of thousands of dollars that the party was otherwise entitled to.
Failing to be compensated for a debt held in the name of one of the parties but which represents a marital debt just the same. (i.e. not knowing what is andwhat is not a marital debt and each party’s responsibilities regarding the same.)
One spouse agreeing to pay child support above the state child support guideline amount with the belief that he or she can modify the amount at their whim just because the amount is above the guideline amount.
Agreeing to pay spousal support or the inverse agreeing to not receive spousal support based upon mistaken assumptions. (i.e. not knowing the laws of the state with regard to spousal support.)
Were these mistakes the result of a poorly trained or inexperienced mediator? No, the mediator may have been excellent in helping the parties draw up a peaceful agreement for their divorce. He or she may have been able to give the parties some basic, relevant information about the divorce laws in their state. But the mediator must at all times during the mediation remain neutral, and as stated above he or she cannot give the parties or either of them legal advice and the only sure way to avoid mistakes in the agreement is to receive the proper legal advice.
So when should an attorney be consulted, before mediation, during mediation, or after? Again the short answer is during all phases. Having an attorney by your side throughout the mediation process is highly recommended but if funding is limited finding a mediation-friendly attorney to assist you prior to attending the mediation is money well spent. At that juncture your attorney can assess the facts of the case, review pertinent financial information and ultimately develop a plan for your mediation. A seasoned family law attorney can identify issues that you may not have been aware of, dispel any misconceptions you may have regarding your rights and responsibilities under the law and provide you with some guidance as to how your judge is likely to rule on the particular issues in your case if in fact the issue is presented for that decision. Why is that important to know how you judge may rule on one particular issue or another if your main goal is to settle the case without court involvement? It’s important because it informs you as to what issues you may wish to hold steadfast upon during the mediation and those that you should be willing to compromise upon.
Is that all you need to assure that you end up with a well written and comprehensive mediation agreement? Absolutely not, but if you can’t retain an attorney to assist you throughout the process at least you can enter into it with some relevant knowledge and a plan for a successful mediation. The only sure way to confirm that you end up with a well written and comprehensive mediation agreement is to have that agreement reviewed by a Family Law attorney BEFORE the settlement agreement is signed. Again a seasoned Family Law attorney is trained and has the experience to recognize issues and deficiencies in agreements that would not generally be recognized by the parties themselves or even the mediator or the mediator may have noticed the issue but due to their roll in the mediation process is ethically restricted for one reason or the other from bring the issue to one or both parties attention. The down side with consulting an attorney after mediation and before the settlement agreement is signed, and only during that phase, is that you may be advised not to sign the agreement due to one deficiency or the other. Now that deficiency could be corrected with a small modification of the agreement language that the parties readily agree to or it could result in the need of a complete redraft of the agreement to which neither party may agree placing them back in the same position as they were before the mediation took place and resulting in a great amount of lost time, money and spent emotions.
So what type of attorney should you be looking for to assist you during, prior to or after the mediation but BEFORE the agreement is signed? Your consulting or reviewing attorney should be mediation friendly, so you may want to avoid the attorney who was referred to you because he or she is a “bulldog litigator”. While battling it out may be lucrative for lawyers, it could result in draining your financial and emotional resources, and likely will not result in the best arrangement for you and your family. Preferably, your attorney should also be mediator or at least be trained in mediation. At a minimum they should understand the mediation process and be clear in what you want to accomplish. You will also want to choose an attorney who specializes in divorce in your state. Family law is very fact specific and decided on case-by-case basis, and you want your attorney to be up to date with the most recent case law that is relevant to your case. Matrimonial law differs state by state and while there are similarities between states there are also some very large differences as well. So advice from the best New York divorce attorney could prove absolutely useless in a Florida case. You should be able to speak freely with your attorney and he or she should be able to explain complicated legal wording in language you can understand. Finally, the attorney should have good reputation in your jurisdiction, ask around, Google him or her, check with his or her respective legal bar and confirm that they are in good standing.
Obtaining independent legal advice from a mediation friendly divorce attorney is an important step in the divorce mediation process. Doing so gives you the best and possibly only chance to ensure that you understand every word of the agreement, that it says what you intend it to, that it is enforceable and that it is fair to you and your family. Hiring an attorney to assist you during your mediation is not without some cost but making that investment should save you time, money and angst in the years to come.
Author: Daniel Bachert
Mr. Bachert is a Matrimonial/Family Law attorney and Florida Supreme Court Certified Family Law mediator practicing within Broward, Palm Beach, Martin and St. Lucie counties of south east Florida.