Is a Divorce Mediation Settlement Binding When a Lawyer was not Consulted?

happy-family-1316748Divorce mediation in New York is a voluntary settlement process used by spouses who wish to divorce. The process is facilitated by a mediator who works with both spouses to negotiate a settlement that both parties can live with and that is in the best interests of the family. The mediator typically tries to conduct the sessions in an atmosphere of respect and cooperation. For many couples, especially those with children, mediation is a better option than litigation because it is less expensive and involves negotiation to find a good solution for everyone.

However, it is recommended for each spouse to have a review attorney to discuss their legal rights, if not before, then after a settlement agreement is drafted with the terms agreed upon in the mediation. The mediator might give options about different ways that the issues are handled in court cases, but does not serve as legal counselor to either of them.  Whether or not individuals heed the advisement to seek the counsel of a review attorney, in most instances, people will be bound by what they agree upon by a properly drafted agreement through a divorce mediation.

For example, in Valkavich v. Valkavich, a case involving a Long Island divorce mediation, a plaintiff sued to declare null and void a Stipulation of Settlement. The defendants were his ex-wife, the Divorce Mediation Center, and its director. The stipulation of settlement was executed by the plaintiff and his then-spouse, and it was prepared by the Divorce Mediation Center. The plaintiff asked for punitive damages and reimbursement of paid child support, among other things.

The stipulation included a statement that the divorcing spouses would be asked to complete financial disclosure packages, but they could waive this activity if both agreed. The statement warned them that they should review the final agreement and bring it to their attorney or other advisor. The parties executed a financial waiver, acknowledging that the waiver could affect their abilities to recover hidden assets in the future.

The stipulation of settlement arranged for equitable distribution, child support, custody, and visitation. It stated that the spouses agreed the wife would have physical custody, while the husband retained visitation. The husband was to pay $3,300 in child support per month. The parties agreed that they had been advised of the statute on child support and case law. The stipulation also recognized that the director of the mediation center hadn’t represented either party. Later, the parties amended the stipulation, altering the husband’s gross earnings in the child support section.

The couple was divorced by judgment. In his suit to have the settlement set aside, the husband argued that the child support provisions didn’t comply with the Child Support Standards Act because his gross earnings in the years after the agreement was signed were significantly lower than what was stated in the Stipulation and amendment. He sought a downward modification based on a change of financial circumstances and then brought the current case. In the current case, he claimed that his gross adjusted annual income, even in the year he signed the agreement, was much lower than stated.

The defendants moved for summary judgment. The court explained that separation agreements that are fair on their face are usually binding unless they are put aside due to fraud, unconscionability, overreaching, or duress. In this case, both parties were fully informed of their right to attorneys. The court explained that the plaintiff hadn’t shown that the Stipulation was unfair when made. The plaintiff didn’t allege that he was unaware of his income or that he didn’t know the mortgage industry was in decline at the time of the signing. He also made no showing that there was a change of circumstances that justified changing physical custody to him, rather than his ex-wife. The husband’s complaint was dismissed.

If you are considering using mediation for your New York divorce, contact the Law and Mediation Office of Darren M. Shapiro at 516-333-6555 or via our online form. Our principal Darren Shapiro is an experienced, compassionate family lawyer and mediator.

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