How does mediation work in a divorce? In Tarrant County, many of the judges require parties to attempt mediation before a contested final trial to see if an agreement can be made thus eliminating the need for a final trial. The family law courts in Tarrant County are very busy courts and have very heavy dockets. Mediation is used to increase judicial efficiency and provide families a non-adversarial resolution to their family law matters including divorce.
It is important to use a mediator who is experienced in mediating family law issues. If your divorce is primarily concerned with child issues, you want a mediator who is effective at reaching mutually beneficial agreements in that vein. Same goes for a divorce that is heavy in property concerns.
Mediation is a good option for divorce as it gives the parties more control over the outcome of their situation. If you go to trial, your fate and the fate of your family is left up to a complete stranger or strangers - either the judge or a jury. At least in mediation your concerns and your feelings are heard. In a trial, you are bound by the rules of civil procedure and rules of evidence and it is a matter of what you can prove with evidence. It doesn’t matter so much how you feel about things in a trial. The judge won’t care how you feel; he only cares about what you can prove. And saying something on a witness stand is not necessarily proof.
So what does mediation look like? Well, it doesn’t look like the TV version. The parties and lawyers don’t sit across from each other at a table and try to broker a deal. A neutral third party acts as a mediator. Mediators are trained in alternative dispute resolution. Some are also family law lawyers; others are former judges and some are even former family law judges. Your lawyer will help identify a mediator who will work well for your situation. What normally happens is you and your attorney sit in one room and your ex/spouse sits in another room with his or her lawyer. The mediator will shuttle back and forth between rooms to try to reach an agreement.
If a deal is made, a Mediated Settlement Agreement (MSA) is drafted and signed by the parties, the lawyers and the mediator. In Texas, that MSA is binding. There are no do-overs. An order is drafted and a judge must sign it so long as it comports with the MSA. The order cannot deviate from the agreement made at mediation and memorialized in the MSA. If it does, the judge cannot sign it.
You do not have to walk away from mediation with an agreement. If you cannot live with the agreement, you should never sign the MSA because if you do, you are stuck - you are bound by the agreement. I always tell my clients, if you don’t think you can live with the agreement, you should not sign the MSA.
If an MSA is signed at the end of mediation, one of the attorneys for one of the parties is identified to turn the MSA into an order the judge will sign. Because all of the details cannot be put in the MSA, the order is always much longer than the MSA assuring required language is in the order.
The final very important aspect about mediation is that it is confidential. If you do not reach an agreement, the mediator cannot testify to anything that happened in mediation.
In the majority of cases, I recommend mediation as I believe it is best for children if you can keep your divorce out of the courthouse.
People initially may believe mediation is costly because not only are you paying your lawyer to prepare for mediation and attend it, you also have to pay the mediator for that time. But going to final trial will end up costing you five to ten times what mediation would cost. Not to mention the stress of a trial.
Ami J. Decker
www.famlawtex.com
Tarrant County Family Law
Saturday, March 31, 2012
Saturday, March 24, 2012
Texas is a Community Property State
From time to time, you may here this phrase: Texas is a community property state. What does that mean? It means that everything acquired during a marriage is considered property of the community or marital estate. This includes assets and debt, regardless of whose name is associated with it. For example, even if a credit card has only your name on it, all debt on that card is community property and all community property is subject to division in a divorce.
Contrary to community property, separate property is any property purchased or owned by one party prior to the marriage. But if you think you have separate property in a divorce, you must prove it is not community property.
With regard to community property, there is a statutory "rebuttable presumption" in the Texas Family Code that all property and debt in either spouse's name is considered community property and thus divisible in a divorce. A rebuttable presumption means the person who claims the very opposite of the presumption has the burden to prove his point. For example, if a spouse owned a 1968 Chevrolet Camaro prior to marriage, he or she must prove that the car is not community property thus subject to division in divorce and should remain his or her separate property. This means the spouse must prove he or she purchased the car before the marriage and that is was not purchased during the marriage.
Other items considered separate property, so long as it is proven, is a gift to one spouse and an inheritance to one spouse. As an example, if the husband's father gave the husband, and the husband only, the 1968 Camaro during the marriage, it is the husband's separate property. Further, if the husband's father died while the husband was married and the Camaro was given to the husband from the father's will, it would also be the husband's separate property and not to be divided in a divorce.
Ami J. Decker
www.famlawtex.com
Contrary to community property, separate property is any property purchased or owned by one party prior to the marriage. But if you think you have separate property in a divorce, you must prove it is not community property.
With regard to community property, there is a statutory "rebuttable presumption" in the Texas Family Code that all property and debt in either spouse's name is considered community property and thus divisible in a divorce. A rebuttable presumption means the person who claims the very opposite of the presumption has the burden to prove his point. For example, if a spouse owned a 1968 Chevrolet Camaro prior to marriage, he or she must prove that the car is not community property thus subject to division in divorce and should remain his or her separate property. This means the spouse must prove he or she purchased the car before the marriage and that is was not purchased during the marriage.
Other items considered separate property, so long as it is proven, is a gift to one spouse and an inheritance to one spouse. As an example, if the husband's father gave the husband, and the husband only, the 1968 Camaro during the marriage, it is the husband's separate property. Further, if the husband's father died while the husband was married and the Camaro was given to the husband from the father's will, it would also be the husband's separate property and not to be divided in a divorce.
Ami J. Decker
www.famlawtex.com
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