Of all the things that are driving my friend nuts over her impending divorce, it is trying to get proper representation. So far this is what happened:
he talked to a mediator on his own (before he even told her he wanted a divorce), and says they both should use that mediator, and that they should settle out of court completely (the lowest level possible I believe, with the highest level being litigation in court)
she (my friend) talked to several lawyers, some of which could also be mediators, but so far all insist “if I am your lawyer, I can’t be your mediator and vice versa”
also, she talked to a mediator alone, but now the mediator is acting as her counselor, so she can’t be the mediator
to top it off, when she goes to divorce lawyers, and they find out both spouses want mediation only with no court except for a rubber stamp, they don’t want to take her case as a lawyer because it is “too small” and probably won’t go to court mediation or litigation
What she wants is to get her own lawyer on retainer, and work with him on what her rights are, and putting together a proposed divorce settlement, based on emails and discussions with her STBX. But they don’t seem to want to do that. It looks like she can’t get a mediator of her own, because they only work with both parties, and one party has to give the other permission to talk to the other.
Has anyone gone through this? Is she missing something? Is it worth fudging the truth a bit that they “might go to court” (heck, they might) but they both are very motivated not to go to court? Do you even take your lawyers to mediation sessions, or are you not supposed to?
The point I think is that if they can settle out of court, their lives, and the children’s lives, will be as little affected as possible. Currently, she has more financial exposure than he has, and he has verbally and in emails proposed taking less than the law would likely give him, just to get out (per other thread, he “dropped the bomb” of wanting a divorce on her with no counseling or discussion on that fact). No idea about whether a gf (or bf) is involved, but in their state, doesn’t matter anyway.
State is NJ. Grounds are “irreconcilable differences”.
She’s spent many hours on trying to get a lawyer or mediator, including meetings, and feels like she has gotten nowhere.
(I always thought that if you got divorced, you had to each get a lawyer and go to court in front of a judge and hash it out. I did not realize you could make up your own divorce agreement together, and just both agree to it.)
Mediators should be independent of both parties. Truthfully, you never know whether mediation will solve all of the problems. It often just (significantly) narrows the field. That is super helpful, contains both emotional and financial drain.
I’ve seen cases completely resolved except for some dumb rug or guns or something.
You can self represent in court. I did…but both my ex and I are lawyers. I think the key questions is whether each party thinks the other is trustworthy/honest and/or the assets are crystal clear. My ex and I sat in our living room and valued things most people would litigate including house value and business value. He’d say what he thought, I’d say what I thought and we’d average…or do a trade out (retirement acct for ongoing business). (this assumes somewhat equal mental abilities and awareness and an ability to not get overly emotional)
Just getting a judge to sign off is often called a consent decree.
The court itself should have information on this process – what forms to fill out for an uncontested divorce, how mediators are assigned to a case (it may be possible to have one assigned through the court, e.g., rather than finding one on their own), if counseling is required or not (some jurisdictions require it when children are involved), etc.
If they just want help drafting the paperwork with their agreement, they should look for lawyers that advertise “uncontested divorce” as there are some attorneys who specialize in doing these for low fees, typically a few hundred dollars. Any attorney that litigates divorces will want to find areas to disagree on so they can make their money – they can make $40,000 and much more on litigated divorces that go to trial, so that is why they have no interest in an uncontested divorce where the parties plan to agree on everything.
Yes, it is possible to take an attorney to mediation, or possibly have an attorney review an agreement reached through mediation before it gets filed with the court, or of course give advice on legal rights before a mediation. There are also other experts such as accountants who are sometimes called in to a mediation if finances are complicated to resolve, or counselors may be brought in to explain how best to handle the co-parenting post-divorce and how different ages are affected differently.
If they really do agree on everything with no doubts, then they can theoretically also just prepare all the paperwork themselves without anyone else involved. I still recommend checking with the court though to get started in the right direction if they haven’t done this already. If they can agree on a mediator and meet with one together to choose one, instead of meeting separately as they have been doing, then that would be another step in the right direction. If one or both parties still want their own attorney to supervise the process by attending the mediation or reviewing the agreement or both, then perhaps an attorney who does uncontested divorces may be willing to do that for a low fee. They should stay away from the litigators if they want to divorce amicably and with their money intact for themselves and their children rather than spent on legal fees.
They should look at it this way – a mediator is impartial and works with both parties to help them draft an agreement, while an attorney must represent one or the other party’s interests only. An attorney who prepares the documents for an uncontested divorce will probably work with one party and expect the other party to affirm that they have consulted their own attorney if desired prior to agreeing to the terms.
Different state, different laws, but here’s what I’m considering doing for my own divorce: 1) Consult a family lawyer (although I am one myself) to make sure I’m not missing anything in my evaluation of the property-division considerations. 2) File on my own, using the forms provided by the state court system, which can be used in any county in my state. 3) Encourage my husband to participate in the process. 4) Serve my husband personally (meaning I hand the papers to him, he signs the proof of service). 5) Reach agreement with my husband on the property division.
In my state, a judge or court commissioner must approve the agreement, but I think that it’s unlikely that an agreement would not be approved unless it’s blatantly unequal or unfair. And even then, if both spouses sign off on it, the judge or court commissioner will likely just ask each one if he or she still agrees to what’s in the written agreement.
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Currently, she has more financial exposure than he has, and he has verbally and in emails proposed taking less than the law would likely give him, just to get out (per other thread, he “dropped the bomb” of wanting a divorce on her with no counseling or discussion on that fact).
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Hopefully she can use the “he wants out” to her advantage. I know a female military officer whose enlisted hubby “just wanted out” and he never asked for any of her retirement which is larger than his is…by a LOT.
That’s part of the problem, the husband thinks there were two steps to the divorce:
tell her he wants a divorce
agree to terms
It’s pretty clear now that there are many many issues he did not consider, beyond income and assets.
I think monetarily her retirement will end up fine (they will each keep theirs and hers is a lot more), but having enough money to stay in the house is a key facet of their divorce. And he is not local so he does not want to keep the house, he wants the equity and no part in the future mortgage.
It would be better for them to sell and her to buy or rent a place that she can afford ALONE so that she won’t be blindsided in the future when he may balk about future obligations and finances. She needs to assume she will be the sole provider going forward–if he pays in the future as he’s ordered, great! If he doesn’t, she doesn’t want her financial safety jeopardized.
With only one exception, she would be better to sell the house as soon as kids leave for college. In every case, the house sold for less than expected, and lots of repairs before the house could be put on the market.
I’d always recommend mediation first, but sometimes one knows that the other person has been hiding money, is self employed (so wages can’t be garnished), is so self centered they just don’t care about grown children. In that case, go straight to a lawyer of one’s own.
She can afford the house, but it will be tight. She will have to pay off his part of the equity but she can afford it due to previous good financial decisions.
The youngest is 5 years old. Yes, that means she plans to sell the house in 13 years at least, but could see circumstances where she would sell it sooner. Probably would not sell it in the next 3 years under any circumstances to help keep the stress level of the kids down.
The last time they moved was quite traumatic for the family, and they were intact then.
Himom, my patient had 4 kids, and was a n a good school system, near family. Her mortgage was far less than any apartment rental or other house would cost. They owned the house for YEARS. Her hubby was a deadbeat, so she was better off getting the house outright than relying on him for child support. This was the only time I felt the woman keeping the house, and adjusting child support, made sense.
I qualified to be a mediator, but never practiced it in an official,capacity. There were mostly lawyers in my course, who took this course to expand their marketability. One of the profs had a high priced clientele; I ended up,referring several patients to her. She knew all the ropes and loopholes. It was a far more efficient process than using 2 lawyers. If a woman was prone to cave, this mediator would step in and remind her that the $ was for the children.
To the OP, keeping the house might comfort the older children, but may not be the ultimate wisest choice.
Some of my friends, though in fairness their situations were fairly contentious, found that the mediators pushed them to settle for less than they wanted too. They all walked away from mediation but only one ended up in court. The others reached settlements through negotiations with the attorneys. By showing that they were willing to go to court, it put pressure on their soon to be ex husbands to reach a more fair settlement. (court is expensive)
Also, in every case, they each had representation at mediation and for the most part they weren’t in the same room. (the mediator would go back and forth between the rooms).
I’m going to throw this out there - this is what I did regarding the house.
I wanted to stay in the house until the youngest was through high school (we are in a very good school district). Youngest was 8 at the time of the separation. I proposed the following:
I had the house appraised. We figured out what equity we currently had (subtracting the cost to sell/realtor fees/taxes etc). The equity was divided 50/50. I could not afford to buy him out but I could get a refinance in my name at the current value. I would owe him that equity with a reasonable interest rate (simple interest) that would be due as a lump sum when the youngest turned eighteen. We had this written into the divorce agreement - no lawyers or mediators until later when he didn’t pay child support (for years).
This worked for me because 1 - My EX was really bad at child support (I had that in mind when I made the agreement) and I ended up deducting it from the equity/interest I owed him (although that did take a trip to court) and
2 - I could afford the house on my own (with a VERY tight budget).
The only bad part was the RE market crashed and the house was worth less at the time the youngest was 18. I am still in the house and I refinanced in order to pay off the ex .Now the market is turning in my favor and it is much cheaper than renting!
MOST (by far) women do not do well keeping the house. There are a few exceptions however and if you come up with a creative solution (assuming both parents want what is best for the kids) it could work.
I certainly would not let him off the hook so easily with half the home equity considered ‘his’. She has children to provide a home for.
She needs to take a very strong negotiation position.
Chester Karrass “The Negotiating Game” and Herb Cohen “You Can Negotiate Anything”.
She is a smart woman in many areas. She needs to use her intelligence to put her children and herself in the best financial position she can. She also doesn’t have to move forward quick and easy - if he wants her to move forward into divorce, he needs to ‘play nice’.
H probably realizes he wants to preserve having low lawyer/mediation costs, and having low costs on what the divorce will cost him in future support of the children.
It may be he will do better with a little bit of money, equity now. Is his career and future secure enough to ‘count’ on him with paying things in the future? She has to factor risk, but also the ick factor in dealing with him down the road when he doesn’t want to comply with financial agreements. Every time one goes back to court, it costs $$.
I’ve had friends/relative divorces which took forever despite mediators, despite forensic accounting, despite whatever. How it goes is in the end up to the participants. An experienced divorce lawyer helps but the process is designed to stall without agreement. I know this isn’t helpful but there is no especially good advice because what worked for this person might not work for that.
In my area during the crash lots of people got screwed who either wrote into their divorce papers either that one party would refi (they couldn’t anymore) and buy one out or based any division on what the house was worth in, say, 2007. Better to sell almost always although the women rarely wanted to. I have a girlfriend who did that but didn’t take into account the new roof needed, the taxes, the pool/lawn/other upkeep that either H did or they paid someone to do.
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I had the house appraised. We figured out what equity we currently had (subtracting the cost to sell/realtor fees/taxes etc). The equity was divided 50/50. I could not afford to buy him out but I could get a refinance in my name at the current value. I would owe him that equity with a reasonable interest rate (simple interest) that would be due as a lump sum when the youngest turned eighteen. We had this written into the divorce agreement - no lawyers or mediators until later when he didn’t pay child support (for years).
This worked for me because 1 - My EX was really bad at child support (I had that in mind when I made the agreement) and I ended up deducting it from the equity/interest I owed him (although that did take a trip to court) and
2 - I could afford the house on my own (with a VERY tight budget).
The only bad part was the RE market crashed and the house was worth less at the time the youngest was 18. I am still in the house and I refinanced in order to pay off the ex .Now the market is turning in my favor and it is much cheaper than renting!
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Another aspect was that your H knew that you owed him equity money, so that may have encouraged him to get behind on payments. I can see someone thinking, “Hmmm…she owes me $XXXXXX for my share of the equity, so I’ll just not pay support and she can subtract that from the equity owed.” The problem, of course, is if the wife needs that support so the budget can afford the mortgage payments.
I did my divorce with a single mediator and no lawyers. But we basically agreed on the division of property going in., and neither of us wanted spousal or child support. If one side has a lawyer then both sides need them. If there is any question about the assets of the other party, things get a lot more complicated and contentious fast.