Many, if not most, family law courts in Texas, including Harris and surrounding counties, now require divorcing couples to attempt a settlement through mediation before going to court. This hasn’t always been the case, but mediation is something many divorcing couples should research and carefully plan for, especially with regard to the financial aspects of divorce.
Mediation is defined broadly as any instance in which a third party helps others reach agreement. It is method commonly used to settle disputes in business, diplomatic circles, the workplace, legal conflicts, the community and in family matters. The mediator acts as a neutral third party and facilitates rather than directs the process. Typically, mediation has a structure, a timeline and methods that ordinary negotiation lack. The process is also generally private, confidential and voluntary.
In a common Houston divorce scenario, an individual hires an attorney and files for divorce from his or her spouse. The other spouse then engages an attorney and the standard divorce process begins. Currently, there is a cooling off period of 60 days, then both attorneys begin the "discovery phase" in which all assets and liabilities of both individuals are identified and accounted for, including community and separate property. All financial records for both parties are gathered and reviewed. Then, each individual, working with their respective attorneys, begins developing their terms for a divorce settlement.
Eventually, a court date is set. Generally, if there are no factors in the case that could prevent mediation from being effective (see below), the couple then selects a mediator they can both agree on and set a mediation date before the trial date. The mediation usually takes place in a neutral location where each individual and their attorneys gather in separate meeting rooms. The mediator moves back-and-forth between the two rooms during the mediation process.
The goal is to work out as much of the settlement as possible, and strive to leave the session with a Mediated Settlement Agreement (MSA) signed by both parties. The MSA is then converted to a divorce decree document by the attorneys. Everyone then reviews and signs the decree. The signed decree document is submitted to the court for the judge to review and sign. The court typically reviews and approves the decree and the couple is officially divorced. A successful mediation means they avoid the expense and time commitment of a court appearance.
Divorce mediators can be engaged anytime in the divorce process where there is a reasonable expectation that the couple can eventually reach a mutual agreement. Some couples retain a mediator before they hire an attorney in order to save time and money. Others retain a mediator as part of their divorce team.
However, according to one divorce attorney, in order for mediation to be meaningful, effective and fair, both spouses should have relatively equal “bargaining power,” and should not be overly emotional, angry, fearful or intimidated. In addition, both must be fully informed of all relevant factors – i.e. assets and liabilities. In cases involving custody and visitation disputes, both parents should come to mediation having fully evaluated each others' abilities and weaknesses, and have the best interest of the child at heart. If the mediation process is not working for one or more of the above reasons, either spouse has the right to end the session and walk away. He or she can schedule another mediation session or proceed to court.
In choosing a mediator, couples should understand that mediators are neutral and not advocates for either spouse. Mediators also should know the divorce laws of your state and be aware of tax consequences of all proposed written agreements.
In more contentious cases and where the finances are complex, or there is the presence of physical or psychological abuse, couples may best be served by seeking the help of a team of experts that include an attorney, a divorce financial analyst and a mediator, for example, and possibly a family therapist.
In all instances, it is prudent to have any proposed Mediated Settlement Agreement reviewed by a divorce attorney and a certified divorce financial analyst prior to signing.
Join Patricia Barrett, a Certified Divorce Financial Analyst and legally trained mediator, at upcoming 2014 Leisure Learning classes in Houston. She will also be presenting at the Guide to Good Divorce seminars in Houston on July 26 and Sept. 27, 2014. For more information on divorce financial planning or divorce mediation, visit Patricia's website, Lifetime Planning.