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Mediating Your Divorce? Do You Still Need an Attorney?

by Joy Rosenthal
May 2014 Joy Rosenthal

You’ve been mediating your divorce for 3 months, and your split is almost complete. The agreement says that you and your former spouse will have alternate holidays with the kids, that you won’t move too far from each other, and that you’ll still split the mortgage payments.

But how do you know if this is the best agreement for your family?

Mediating keeps you in the driver’s seat and allows you to come up with a tailor-made solution that considers all members of the family – and, hopefully, will be the best possible solution under the circumstances.

But you still need to hire a mediation-friendly attorney to be your partner.  Getting the advice of an attorney will ensure that your divorce agreement is well-informed, fair and enforceable.  Your attorney is there to assess your situation explain the law as it pertains to you, answer questions, give suggestions, to guide you through, help you make informed decisions and make sure you understand exactly what you are signing.

 

Why do you need an attorney if you’re mediating?

Your mediator may be excellent at help you talk through your family’s concerns and fears, and helping you draw up a peaceful agreement for your divorce. She may be able to give you some basic, relevant information about divorce laws.  However, no matter what her underlying profession, she must remain neutral, and thus, she cannot give you legal advice. 

Because your lawyer understands the norms of family law, she can help you decide whether certain provisions make sense for your family. For example, say your agreement states that you need to pay 15% of your income in child support to your former spouse. This may seem like a large percentage, but in fact, your state’s child support statute requires that you pay out 17% of your income. Your attorney will know these details and be able to tell you if your agreement is a fair deal for you or not.

Your attorney can also highlight any missing details or possible scenarios that the mediator may not have found. For example, your agreement says that each of the parents cannot move a “25 miles” from where you live now. Your attorney may ask several clarifying questions, such as:

  • Where do the children go to school? Could they really travel 25 miles?
  • Does either parent actually plan on moving?
  • Are they ever allowed to move?
  • How much notice do they need to give before they plan a move?
  • What happens after the children go to college – does this still apply?
  • Can you move to a different state as long as it is within 25 miles?

These clarifying questions can help ferret out the important details that make your agreement able to be read, understood, and easily interpreted by anyone who reads it.

When should you include your attorney?

If you choose to include a lawyer from the beginning stages, your legal counsel will be a consulting attorney. Your consulting attorney will be able to explain what the norms are in your jurisdiction so that you can be well prepared for mediation. She will be able to talk to you about your fears and concerns, and help you figure out which decisions need to be made immediately. She can also clarify questions, give you feedback between mediation sessions, and help you evaluate your options to make informed decisions.

If you decide to include your lawyer in the final stage of mediation, they will be your reviewing attorney. Since the divorce agreement is written in legal language, she can explain it to you in plain language so you know exactly what you are signing before you sign it.  Because she was not part of the mediation process, the reviewing attorney can take a fresh view and see if it is missing any important points. She may do reality testing and ask hard questions that you may not have thought of while mediating. And since she is familiar with family law, she can advise you about how your agreement may vary from the law and whether this agreement meets your goals.

Your divorce agreement is an important document, and may affect your life for years to come.  You should understand every word of your agreement.  Take the time to go over it in detail. 

 

How to find the right attorney

Your consulting or reviewing attorney should be mediation friendly. Ideally, your attorney is also a mediator or is at least trained in mediation. At the very least, they should understand the mediation process and what you want to accomplish. If you choose a lawyer who doesn’t understand mediation, they might be litigious and want to fight instead of settle.  While battling it out may be more lucrative for lawyers, it may drain your financial and emotional resources, and not result in the best arrangement for you and your family.

You will also want to choose a consulting or reviewing attorney who specializes in divorce and is licensed to practice law in your state.   Family law is very much decided case-by-case, and you want your attorney to be up to date. 
That’s why it is important to work with someone who practices family law full time.  It is important to work with someone who is familiar with matrimonial law in your state, because laws may be very different between states.

You should feel a good rapport with this attorney – and make sure you understand what she is saying.  You want someone who can explain complicated legal wording in language you can understand.

Finally, make sure your attorney is someone you can trust.  Your attorney should have a reputation for integrity.  Ask around.  Your mediator may be able to recommend either a good consulting or reviewing attorney - as long as they are giving you and your ex- the same list, there is no harm in taking a recommendation from the mediator.

Make the investment.  Expect to pay for several hours of time for a consulting attorney, and less (perhaps only a few) hours for a reviewing attorney.  Their time will be spent speaking to you, (occasionally) doing legal research, reading the agreement and making suggestions or edits, and, if you wish, negotiating with the other attorney.

Conclusion

Getting independent legal advice from a mediation-friendly divorce attorney is an important part of the divorce mediation process to ensure that you understand every word of the agreement, that it says what you intend it to, and that it is fair to you and your family.  Investing in this now may save you time, money and angst in the years to come.

Biography


Joy S. Rosenthal, Esq. is a compassionate mediator, a skilled negotiator and an intelligent litigator with extensive background in the private and public sectors. Joy served as a Staff Attorney at the Legal Aid Society's Juvenile Rights Division for nearly 10 years, where she represented hundreds of children and teenagers in foster care, child welfare, custody, adoption, PINS (Person in Need of Supervision) and delinquency cases in the Bronx and in Brooklyn. Joy was honored to be selected for a one year fellowship at New York University School of Law's Family Defense Clinic, teaching law students to represent parents in child welfare proceedings. Joy founded Rosenthal Law & Mediation in 2006. The firm's practice centers on family and estates law, as well as family-based mediation. In addition to her private practice, she mediates custody and visitation disputes for the New York City Family Courts and serves as a Guardian Ad Litem, protecting the rights of youth and the disabled in New York City Surrogates Courts. She also serves as President of the Board of Directors of the Family and Divorce Mediation Council.

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Website: www.joyrosenthal.com

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