A real client’s questions about divorce settlement and mediation
Here is a real client’s questions about divorce settlement and mediation. Don’t worry, I’ve removed the names and changed out the details to protect confidentiality. This client asked a lot of questions that frequently come up, so the client’s e-mail was particularly well-suited for a blog post.
I think you’ll really benefit from seeing what real people ask me and what my responses are.
The client’s e-mail and the client’s questions are in the left column below, and my responses to the client’s questions are in the right column:
Client asks: |
My responses: |
| Eric,
I have a hodgepodge of questions… |
|
| What comes next and what are you needing me to prepare for and how to get “it” ready for you? I know I need an appraisal… do I notify [my spouse] this is coming out of the funds? …and what is the appraisal used for? | Other than getting the appraisal, I don’t anticipating needing anything from you between now and the mediation date. But if anything comes up, I will notify you immediately.
The appraisal helps us get a neutral, professional opinion as to the true, market value of your house, so that you and [your spouse]—who aren’t really in any position to speak authoritatively on the value of the house—don’t have to argue about its value. I’d e-mail [your spouse] with something simple, like this: [your spouse], My attorney suggested that, to get an accurate idea of the value of the house, we get an appraisal between now and our mediation date. I suggest we pay for a mutually chosen, neutral appraiser to conduct the appraisal and share the costs of the appraiser equally. How does that sound to you? [Client] |
| Do you need me to still provide bank statements, paycheck subs? [my spouse] is the primary on the [credit card] and I don’t have the ability to see what is being charged or paid on that card anymore. It’s only under his login and password now. He was going to send me the rest of December [credit card] statement…but didn’t. Do you still need that from me, and do I press for it with [my spouse]? | Yes, press for it. Gently, but firmly.
Press for the email password he changed too. Even if [your spouse] never sends it, pressing for it (in a classy, non-nagging way) shows that you did you part to get it and that [your spouse] withheld it. |
| Should I start making plans with [my spouse] to arrange the exchange of property in dividing up the household and personal items. Do you recommend this done before mediation? | Sure. If you and he can start working out the division of your personal property by agreement, start making overtures. Start seeing if you and he can agree.
It would be great if you could get this at least started before mediation. The more you can discuss or agree upon before mediation the less time and money you’ll spend in mediation. And if you can get it done before mediation, that’s great too. Make sure that you understand that once something leaves your possession, it will be nigh on to impossible to get it back, if you want it back. |
| I don’t have any more money in the [my checking account with X bank]. I have no need to keep this account open, but I identified it in my Financial Declaration, so do you recommend to leave it open until the divorce is finalized? If you do say it’s ok to close and stop the account, what documentation is needed to be provided to the court in closing that account? | Do you see any need for it to remain open? Any harm it would do [your spouse] if you closed it? If not, go ahead and close it, e-mail [your spouse] and tell him you closed it because there was no money left in it. You need to be able to document that you notified [your spouse] that you closed the account. If he gives you a hard time about closing the account, let me know, but I doubt he will. |
| Have you heard back about taxes, and how do I prepare… either way? [my spouse] has always gotten his taxes in early… | I have e-mailed his attorney again about your desire to file a joint return. That’s about all we can do for now. Their failure to respond isn’t doing them any favors. You are free to inquire with [your spouse] about this too. I would, if I were you. Since we will be meeting in mediation before the filing deadline for income taxes, we can discuss this at mediation. If [your spouse] files before then, we can move the court to award you half of any refund you would have gotten had you filed jointly. Whether the court will grant that motion is not known, but the odds favor you. |
| Has his lawyer sail mailed his accounts statements documents? He has always had full access and quick retrieval of all his accounts updates. Just recently he was able to quickly send me [credit card X] statements in the past few weeks.
The manner in which [my spouse] turned in his financial declaration and his supporting documents has me confused and baffled… as long as I have known him… he is most concerned about how he appears and is perceived by others. This has always been of highest priority to him. Do I say anything about the way he filled out his paperwork? |
Nothing more than what we received the first time. You’ve seen my e-mails to his attorney asking for the supplementation/updates, but he’s ignoring me (this is normal for most divorce attorneys—not right, but normal).
Please send me anything [your spouse] has sent you by way of supplementation. Don’t hassle [your spouse] directly about his financial declaration and supporting documents. Tell me, and let me hassle him through his attorney. His financial declaration is a joke, and his attorney knows better. |
| What does mediation look like? Will [my spouse] have to be here in person? [my spouse] had emailed me stating: | Most divorce cases settle. Your odds of settling in your particular are good, in my opinion.
Most cases today settle in mediation. Warning: mediators love to tell people how wonderful it is. Take this with a grain of salt. Here is basically how mediation works: The Mediation Process The mediator will ask you to sign an agreement that acknowledges that what’s is discussed in mediation is confidential and not admissible in court, that the mediator cannot be called as a witness, and that you agree to pay the mediator’s fee. At mediation you will usually start speaking with the mediator and provide background information about your marriage, your family, and what the issues are. You’ll then meet in a conference room or office where the mediator will explain what you can expect from the process. For example, the mediator may tell you that everyone will be in the same room for the entire mediation or that you’ll meet in separate rooms (this is known as shuttle mediation) so that the mediator can get the views or positions of the parties in private and discuss their ideas and concerns openly, without the other party there to hear you. If you reach agreement, either as to all issues or as to some, either the mediator or one of your attorneys will write a settlement agreement for the parties to sign. The settlement agreement is contractually binding. The terms of the settlement agreement will be incorporated into the Decree of Divorce. (https://www.nolo.com/legal-encyclopedia/divorce-mediation-basics-36180.html) If you want a good laugh, do a search on YouTube for “divorce mediation” for some of the worst acting you’ve ever seen and some of the most contrived mediation depictions. Still, you might learn a little useful information about the setting and the process, so either way, it’s worth a look. |
| “Regarding mediation, my plan will be to approach the meeting with an agreed upon amenable divorce so we don’t have to come prepared try to use the venue to air out the personal damages we caused each other. I will share perspectives if you choose to go down that path but hopefully we will walk into the room with lift regarding personal matters and focus on how we will address agreed upon finances.
“I think you can see that I am doing my best to give when it comes to financial matters. If you will do the same when it comes to the length of alimony payments asked for, this meeting could be brief and less traumatic on the already fragile lives we are living out.” |
[your spouse] is a real bag of wind.
The more you can discuss in advance the more productive mediation will be. DO NOT agree to anything with [your spouse], either orally or in writing, without consulting me first. If you agree to anything with [your spouse], either orally or in writing, outside of mediation that may (in the case of an oral agreement) still be binding upon you (certainly in the case of a written agreement). Even just sending emails back and forth can constitute a written agreement. Don’t believe there can’t be a written agreement without there being a “formal” contract that is signed in ink. No, no. |
| This leads me to believe he may try engage in conversation about these matters. I have had a bare minimum interaction on as little topics as possible, because of his emails. I am needing to have more interaction on other topics of straightening out of some of our accounts. | Go ahead and converse as much as you wish. Just don’t ever agree to anything with him without first consulting me. |
| Should I see if he’ll go ahead and give me the password to our family email? | Absolutely. |
| Should I pay off my [credit card Y] bill I’m paying you on? If he has to pay my legal fees, would it look better to have the debt still unpaid as opposed to having them paid?? | Make the monthly payment, if you like, or pay the whole balance off. I don’t think it will make any difference either way. Remember, most of the time the court does not award attorney’s fees, or if it does, it awards a fraction of what you incurred. I’m talking like 10 cents on the dollar. |
| More mediation questions: | |
| What topics should I be preparing for…?? | All issues raised by the pleadings of you and [your spouse]. |
| How detailed in the personal aspects should I be ready for?? | Negotiation is all business. Personal feelings and such really aren’t what mediation can help. It’s not a grievance airing session or therapy. It’s a business deal: “you get this, I get that, I trade this for that, you do this, and I’ll do that.” |
| [my spouse] has expressed his concern about how public the information is in mediation to me and others… so how public is it? | Stupid question on his part. Mediation is private, but that doesn’t mean you can’t discuss your divorce with others. |
| How does [my spouse’s attorney] run his mediation?…and since [my spouse’s attorney] suggested the mediator, is there any concerns I need to be aware of??? | Mediators have no power. They can make you do nothing. They make no report to the court. They can tell no one what goes on in mediation.
The mediator is not the key to a settlement. You could have a cardboard cutout serve as mediator. Good mediators can help negotiations and may pull back from the brink a negotiation that is teetering on the edge of failure, but what makes for successful mediation and negotiation is YOU knowing what matters to you most and at what point you would say, “This and no further. If you won’t accept these terms, I’ll see you in court.” We’re required to go to mediation, but frankly I have yet to see a “master” of mediation who can magically bring parties together. I have no problem with our choice of mediator. I’ve used [the selected mediator] myself before. She’s good but no one special. She’s not a ringer for [my spouse’s attorney]. |
| I do have questions about understanding alimony… for me those questions would work better in a conversation as to what our options are? What judgments can be made or set up from the beginning similar to civil judgments at that time, if any can be made similar to other civil judgments regarding money? Such as garnished wages, and other means that civil cases use? | You will almost certainly not get as much alimony as you want or think you deserve.
You can have alimony awarded to be paid on a monthly basis. You can ask for a “lump sum” alimony award. If [your spouse] does not pay child support as ordered, you can garnish his bank accounts and pay checks to ensure you get paid. The process of garnishing alimony is the same as for garnishing to collect a judgment. I would be happy to meet with you again over lunch for an hour to discuss alimony and only alimony for the entire hour. Please call Phillip to schedule. |
| Thank you,
Client |
You’re welcome. If you have any other questions, please ask. |
Utah Family Law, LC | divorceutah.com | 801-466-9277
Tags: alimony, appraisal, financial declaration, mediation, real property, settlement