Making Divorce Mediation Work

While divorce mediation is an effective approach to settlement in family law cases, it is not foolproof.  Insurmountable problems can arise during divorce mediation that can frustrate settlement.  Here are a few commons problems and ways to avoid them:

  • Lack of adequate information.  It is impossible to negotiate settlement when you do not know what the assets are, or what the income is.  There are two solutions to this: (a) wait until both sides are satisfied that they have the information they need; or (b) proceed with an initial, brief mediation session to identify the disclosures needed and the steps necessary to make adequate disclosures.  The second option is often overlooked but can be an efficient first step toward settlement; get everyone in a room and discuss what steps are needed before negotiations can begin.
  • Scheduling conflicts.  The length of the mediation session should be agreed to beforehand and everyone should be available for the entire scheduled time.  It usually takes time to get to a settlement.  You can’t have an essential party announcing in the middle of mediation that they have another appointment and must leave.
  • A lack of interest in settlement.  For a variety of reasons parties are sometimes not interested in settlement.  Some people are inflexible and will not make deals. Others may have unrealistic expectations or be so confident that they are going to win at trial that they will not make any concessions. Still others may wish to proceed with litigation for emotional satisfaction.  A good mediator can address many of these issues, but sometimes it may be better to delay mediation until everyone is open to settlement.
  • A high level of conflict between the parties.  Some divorcing couples cannot sit in the same room and behave rationally.  A history of domestic violence may also make divorce mediation inadvisable.  A mediator can address this problem by having the parties sit in separate rooms while the mediator goes back and forth.

Despite these problems, divorce mediation should usually be a focal point of the parties’ efforts, just like trial.  Preparation for mediation should be conducted as intently as preparation for trial.  This is true not only in an effort to secure the most favorable settlement, but also to lay the foundation for effective settlement negotiations in the mediation.

Drafting Settlement Agreements, Part 2

The perils of drafting settlement agreements was illustrated by a recent decision of the Supreme Court of Georgia. When efforts to save their marriage had failed, wife drafted a six page agreement in letter form.  Both parties signed the agreement.  The agreement provided for alimony as follows,

“Up until all of our children have graduated from college, you commit to provide the following income for the children and me: Upon to a total annual gross income of US$500,000 you commit to giving 85% of your total annual income to me to provide for me and our children, after paying for the following items:

  • All federal, state and local taxes
  • Home mortgage, homeowners insurance, and real estate taxes
  • Debt pay down on any debt owed at the time of our separation
  • Life insurance and disability premiums’
  • Medical, vision and dental insurance
  • School tuition

Above a total annual gross income of US$500,000 we agree that you would provide 50% of any amount over US$500,000 to me to provide for me and our children in addition to the above mentioned 85% of your total income that is US$500,000 or below. After all of our children have graduated from college, you agree to provide 50% of your total annual income to me, whether I remarry or not, whether I work or not.”

While this language may seem easy to understand, the Court found that this language was too vague to be enforceable.  The first provision lumps in child support and alimony, two different categories that must be dealt with separately.  The switch from the first arrangement to the second is premised on all of the parties’ children graduating from college, which may never happen.  Calculating husband’s income is not clear.  Different terms are used: “total annual income,” versus “total annual gross income.”  It is also not clear whether the list of deductions applies in the second arrangement.

While the court would not enforce the alimony provision, the court did enforce the provision in the letter agreement regarding property division.  The amount of alimony and child support would have to be set by the court independently, without an agreement between the parties.

It is very difficult for a layperson to draft an agreement that will be acceptable to the court.  The layperson simply cannot anticipate what the language will mean to a judge. On several occasions people have come to us with an agreement that they had drafted.  Fixing the problems in their agreement usually costs more than drafting the agreement correctly the first time. In this case wife may have let husband keep most of the property in order to get an alimony agreement favorable to her.  When the court enforced the property division and rejected the alimony, wife lost the property and probably will not get the alimony she bargained for.  The parties have already engaged in litigation over the enforceability of the agreement.  Now they must litigate alimony and child support.  All of this could have been avoided by having the agreement drafted correctly the first time.

Drafting Settlement Agreements

A recent case illustrated the pitfalls for the unwary in drafting settlement agreements. The agreement provided that (a) husband would pay alimony until the wife remarried, and (b) after the wife remarried husband would continue to make payments until August 1, 2015, or until the wife’s children from a prior marriage finished school, whichever came first.   Wife remarried in October of 2008, triggering the switch to plan b.   Husband made payments until December of 2009, when wife died.  Husband stopped making paying, thinking that the death of the wife terminated the payments. The administrator of wife’s estate sued husband, claiming that his obligation continued until August 1, 2015, or until the children finished school.

Normally, both child support and alimony would automatically terminate upon the death of the wife, while a division of property would continue after death and could be enforced by the administrator of the estate.  Upon reviewing the parties’ agreement, the court decided that part b of husband’s payments were neither child support, alimony, nor property division. According to the court, they weren’t alimony because they were for the benefit of wife’s children.  They weren’t child support because the children weren’t the husband’s children. They weren’t property division because the payments were contingent upon the wife’s remarriage.   The court ruled that the payments were simply a contractual obligation and as such continued after the wife’s death.

There are several lessons here.  First, it is very easy to make a mistake in drafting a settlement agreement.  When this agreement was drafted it is likely that nobody thought about what would happen if wife died while the plan b payments were in effect.  While there is certainly nothing wrong with the husband’s obligation continuing after the wife’s death–it was going to help the wife’s children while they were in school, after all–the agreement needed to address clearly the effect of wife’s death on the payments.

Second, the drafting mistake here was failing to clearly identify what category the plan b payments fit into to.  Were they child support, alimony, or property division?  These different categories are treated differently, not only regarding the impact of the wife’s death, but also in the way they are taxed and enforced.  Clarity is essential.

Third, courts will have a tendency to enforce agreements to support children.  It is a long way from clear that the plan b payments were an uncategorized, “contractual obligation.”  The payments could have reasonably been seen as alimony to help the wife meet some of her expenses.  The fact that those expenses involved her support for her children does not necessarily mean that the payments are not alimony.

Assuming that the parties intended for the plan b payments to be alimony, the agreement could have explicitly said so: “The parties agree that the husband’s payments after the remarriage of the wife shall be alimony, taxable to the wife and deductible by the husband, and shall terminate upon the death of the wife.”  Of course, if the parties had intended for the payments to continue after the death of the wife, the agreement could have said so as well.

Divorce Mediation in Brunswick, Georgia

Some divorces are settled fairly easily.  The parties may sit down at the kitchen table and work out an agreement.  The lawyers may be able to resolve differences between the parties with correspondence and telephone conversations.  But if settlement discussions prove difficult, a mediator should be brought in to assist in negotiations.

A divorce mediator works primarily by bringing everybody to the table and asking questions.  A skilled mediator can use questions to focus everyone on settlement and explore possibilities they had not considered before.  Our experience has been that divorce mediation often helps settle cases, saving the parties a lot of money and aggravation.

Divorce mediation can be conducted at any stage in the proceedings, from early in settlement negotiations until just before the trial.  Divorce mediation can be useful in all areas of family law, including divorce, property division, child support, alimony, custody, and visitation.

Divorce mediation in Brunswick and St. Simons, Georgia, is done with one of the domestic mediators registered with the Brunswick Superior Court.  The following registered divorce mediators have had training both in mediation and family mediation:

James R. Coppage, 3176 Cypress Mill Road, Brunswick, GA 31525 (912) 265-1237.

Wallace E. Harrell, 777 Gloucester St, Ste 200, Brunswick, GA 31521 (912) 265-6700.

Larry Kimel, 200 Salt Air Drive, #130, St. Simons Island, GA 31522 (912) 506-4082.

Leslie Mattingly, 4315 Tenth St. EB, St. Simons Island, GA 31522 (912) 638-5430.

Mary Helen Moses, 228 Redfern Village, Suite 203, St. Simons Island, GA 31522 (912) 634-8595.

Rita Spalding, 1522 Richmond St., Brunswick, GA 31520 (912) 261-8686.

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