After agreeing upon the terms of a settlement in a divorce mediation, the drafting attorney usually will put together the settlement agreement. It might be in the form of a separation agreement or a stipulation of settlement. Since I am a New York City area, Suffolk County and Nassau County divorce lawyer and divorce mediator, I have always been the drafting attorney on my mediated cases. It is recommended that each party take that settlement agreement and have it reviewed with their own attorneys. The purpose of the review attorneys is to make sure that each party understands their rights, understands what they are signing and that what they agreed upon is in fact in the agreement. This is the person that could give them the legal advice they need.
Everyone that goes through alternative dispute resolution has questions. Would I do better if I went to court? Is this a fair agreement? People that go through collaborative law or litigated cases receive the advice and representation of an attorney throughout the process. Collaborative law, for those, who have not heard about it, is another non-adversarial way to resolve matrimonial and family law cases. I like to think of collaborative law as a method somewhere in between mediation and litigation however it is non-adversarial, like mediation. Feel free to click around my blog, website or call to talk about collaborative law. This blog entry is geared more so about divorce mediation.
The divorce mediator’s role is as a neutral to help people settle their differences and formulate an agreement to move on with their lives. When I shift gears into my role as drafting attorney my job is to ensure that the understanding that the parties made is put into proper form to be a legally binding agreement that settles the case. Usually, in the case of a divorce, that means to settle all of the issues that a Judge would have to decide had the case proceeded to litigation and a trial. In this blog I will go through topics that I include in my settlement agreements when acting as a drafting attorney. For each topic I will touch upon some of the considerations that a review attorney, which is sometimes my role, can address with their clients to make sure their client is armed with the legal information they would need to making a knowing, intelligent, and voluntary agreement for their divorce or other family law issue that is mediated.
Grounds are usually the first substantive decision that I address when I put together an agreement. More often than not, since the No-Fault divorce law passed in New York, grounds in not a contentious matter for mediating couples. Nowadays, most mediating couples agree to utilize the no fault grounds option which just means that the marriage has been irretrievably broken for at least six months. It is not the husband or wife’s fault, it just did not work. When abandonment or some of the other fault based grounds are selected, as they had to be more frequently in the past, whether or not there are any implications by the selected divorce grounds can be discussed with the review attorney.
Child custody, when there are children under eighteen years of age, is the next substantive decision that I tend to address in my settlement agreements. The implications of joint legal custody versus sole custody should be talked about with your review attorney. Under what circumstances in the future can child custody be changed? If the child custody issue was litigated, what are the chances of winning? Many of these questions cannot be properly addressed by your mediator who is supposed to be neutral. Custody and parenting time are important topics to address with your review lawyer.
Child support and maintenance are important areas of law to consider for your rights. Would I get more or pay less if a judge decided it? Would maintenance be for more or less years if a court decided it? Should “extras” be included in child support? There are many questions that parties to a divorce mediation may have that generally will not be addressed by your mediator. These are appropriate topics for your review lawyer. A final big area to discuss with your review attorney would be equitable distribution of marital assets and debt. Would I get any distribution on the increase in value of my spouse’s separate property? Do I deserve a distribution on the professional license my spouse earned during the marriage? Do I deserve a bigger share than fifty percent of the marital assets?
There are many more topics and questions that your review attorney can help to illuminate. Often a party to a mediation might want to discuss some tweaks or changes to the agreement after their meeting with the review attorney. At a minimum a party should have a deeper appreciation of what they received and what they might be waiving upon executing the agreement. Admittedly, not everyone uses review attorneys, however I hope this blog entry helped to illustrate why it is a recommended step.
If you have questions feel free to call our office about your free initial consultation. Different specific areas of law are addressed in other blog entries and my website. Mediating couples are invited to come to the office together for a half hour free consultation. Parties that want the advice on attorney can consult themselves but in that event I may be unable to then be the mediator on the case. In any event, we would look forward to hearing from you. It would be our pleasure to work with you.
. It would be our pleasure to work with you.