A quicker, cheaper divorce settlement can be a result if your client wants to meditate, but it still requires preparation on your part as litigation does.
By T.E Cauthorn, Former Judge, Family Lawyer
So Your Client Wants to Mediate: Part One
You believe mediation is fairer and more economical than the civil justice system. Be warned: If you are not properly prepared, the real cost can be off the charts and the result will not be fair.
Many have great difficulty in putting fault and blame aside in a divorce case. Trust may have been betrayed. Promises may have been broken. Children may be involved. Your savings, investments, and retirement may be involved. If you have a normal body temperature, it is hard to see how you can put fault and blame aside, but you must. Your future and the future of your children are at risk if you cannot. The result of this mediation will entirely depend upon agreement between you and your spouse.
Fault and blame will not lead to a successful result. Mediation differs from litigation in that the parties, with the assistance of the mediator, reach their own agreement. The mediator will not make decisions for the parties. The parties will make decisions for themselves. In order to make these decisions you must be able to state clearly what you want and why.
Properly prepared, you will have fully consulted in advance with independent counsel of your choice. “Fully consulted” means you have provided your counsel all of the relevant facts and she has provided you all of the relevant law that applies to those facts. Sounds simple doesn’t it? It isn’t.
Here’s what you must accomplish in advance of the mediation:
- Each spouse’s education – what and when;
- Each spouse’s work history;
- Each spouse’s child rearing history;
- Each spouse’s pre-marital property, vested and unvested – what and when and how held from prior to marriage until now – fluctuations and contributions and management;
- Inheritances of each spouse – what and when and how held from inheritance to now – fluctuations and contributions and management;
- Gifts from or to each spouse from the other spouse or another person – what and when and how held from gift to now – fluctuations and contributions and management;
- Each spouse’s current and previous income from each source, passive or otherwise – fringe benefits and bonuses – expense reimbursement – bring individual tax returns, 1099’s, and W-2’s;
- Special needs of either spouse;
- Special needs of children;
- Monthly family expenses for spouses and children, jointly, including each debt service;
- Monthly expense of each spouse, individually, including debt service;
- Monthly expenses that relate only to the children;
- Each asset of each spouse, how titled or held (e.g., vested vs. unvested options, limited partnership or limited liability corporation interests), where held (e.g., account name and number), and current gross/net value – bring marital balance sheet or your jurisdiction’s required financial affidavit;
- Post-divorce needs of each spouse;
- Training or education necessary to restore either spouse to productive work;
- Each asset of each child, how titled or held, where held, and current value;
- Each debt of each spouse, including individual guarantees, joint or individual, name of each creditor (e.g., account name and number);
- Law of your jurisdiction regarding treatment of equitable division of marital property – pre-marital property – gifts and inheritance to you and your spouse during the marriage;
- Law of your jurisdiction regarding factors for award of child support – bring the required child support worksheet and applicable schedules;
- Law of your jurisdiction regarding factors for award of spousal support;
- Law of your jurisdiction regarding factors for award of child custody – parenting time – decision making – bring your jurisdiction’s required parenting plan and affidavits regarding the best interest of the children; and,
- Federal and state income tax consequences, if any, of post-divorce spousal support.
Each page of each document you intend to supply at the mediation should be clearly marked that it was provided during mediation and is confidential.
In our next instalment I will explore how to make sure the mediated settlement memorandum refers to a formal settlement agreement, but is enforceable if no formal settlement agreement is ever completed. I will address the situation where your spouse develops “settler’s remorse.” Until then, crank up the scanner and photocopier because you’ve got a lot to do before the mediation.
T. E. Cauthorn has been practicing law in Georgia since 1972. Mr. Cauthorn served as a State Court Judge and then a Superior Court Judge before resigning his seat in 1991 to return to private practice. Since co-founding Cauthorn Nohr & Owen, Mr. Cauthorn has been responsible for obtaining significant compensation for injury victims, resolved countless divorces, civil disputes and business issues to his clients’ benefit, and successfully appealed numerous civil and criminal cases.
So Your Client Wants to Mediate: Part Two
If your client wants to mediate, save them money by insisting that your suggested language be inserted into the mediated agreement.