Monday, March 19 , 2018, 11:42 pm | Fair 53º


Brian Burke: About Your Divorce (Letter 65) — It’s Over

Nick and Nora have successfully completed their divorce. There was a possibility that once they submitted the outline of the deal to their respective attorneys, it would be torn apart and sabotaged by lawyers seeking to make more money out of conflict. It didn’t happen.

Early in the history of divorce mediation — 20 or 30 years ago — this was a big concern. The fear was that a couple would work with a mediator to determine a mutually acceptable resolution of their case. But when the parties took it to their separate lawyers, the lawyers would dissuade their clients from completing the agreement they had reached for themselves.

I can’t recall a single case where this actually happened. By the time the tentative deal is delivered to the lawyers, the clients have spent all the time necessary with the mediator to ensure they understand its terms, what they are giving up and what they are getting. They have been told by the mediator that they should not sign the agreement unless they feel it is in their best interest to do so. They have had all the time they need to “sleep on it,” so it is very unlikely that they will say, a year or two later, “What did I do to myself?”

During the course of mediation, if the mediator has done his or her job, they will not hear anything from their reviewing attorneys that they haven’t already heard from the mediator at least three times.

So what’s the function of the reviewing attorney? It’s a question asked often.

Here’s what reviewing attorneys do:

» The fact that they exist and will review the agreement before their client is bound by it provides freedom in mediation to explore all kinds of solutions to the problems presented — without the parties being fearful of getting stuck with something they don’t want or don’t understand.

» Doctors take X-rays from different positions and angles before coming to a conclusion about what’s going on under the skin. When the mediator drafts the Marital Settlement Agreement, it’s from a neutral position. The husband’s lawyer looks at it from the husband’s point of view and the wife’s from hers. In this way it is possible to spot language that sounded one way to the mediator but a different way to someone reading it from a different perspective.

» The couple and the mediator go over the same material several times and become so familiar with it that something could be left out and not noticed. When seeing the agreement for the first time the lawyers make no assumptions about what is in or out of the agreement, so they can spot omissions. (Omissions can occur in drafts, but they are almost always spotted before the agreement goes to the reviewing attorneys. In this regard they are safety nets rarely used, but they are useful because they are there.)

» A marital settlement agreement is a big deal. In Santa Barbara, a case with a home equity and a pension is likely to involve $1 million or more in assets. With that much at stake, it makes sense to get the outside opinion for your peace of mind (and the peace of mind of everyone affected by the settlement) and as an insurance policy. No one wants to do it, but the reviewing lawyer has an errors and omissions policy to protect him and the client from the kind of mistakes he’s being paid to find.

» When the parties sign the Marital Settlement Agreement after attorney review, both of them can live their lives on the assumption that the terms of the agreement will never be set aside on the grounds that the other party didn’t understand their consequences. A judge would not look favorably on a person who seeks to avoid an agreement that he or she reviewed with an attorney before signing. In this way, each party gets the review to ensure the other party that the deal is good forever.

Now back to Nora and Nick. They are more or less living happily, and their ongoing story is boring. But the 64(!) episodes of their divorce provide a lot of material from which to draw lessons about the nature of both the psychological and legal process.

So that’s what future columns will do. I’ll add material to what we already know about Nick and Nora and use it to show aspects of divorce that are not immediately apparent and often quite different from the mistaken beliefs I hear in my office.

— Brian H. Burke is a certified family law specialist practicing family law and mediation in Santa Barbara. A researcher and educator in the field of divorce and family conflicts, he is also the creator of the Legal Road Map™. Click here for more information, call 805.965.2888 or e-mail .(JavaScript must be enabled to view this email address). Click here to read previous columns. The opinions expressed are his own.

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