If a divorce doesn’t land in front of a judge, is it legally binding? What happens if one party doesn’t hold up their end of the separation agreement? What if circumstances change and one party wants the agreement amended?
These are common questions for anyone who wants to avoid a lawyer-driven divorce. The short answer to the first question is “yes,” but read on for the how and why behind that answer, as well as the answers to other common questions.
How Does Divorce Mediation Create a Legally Binding Divorce?
Divorce mediation is a different path that leads to the same place as a divorce that ends up in court: a legally binding separation agreement signed by both parties. What differs is how you and your ex-spouse create the terms of this contract. In mediation, the goal is discussion and negotiation. With the guidance of your mediator, both sides should come to the final agreement having felt heard. You may not get everything you hoped for, but hopefully you will feel that you can live with what you have negotiated.
Once the separation agreement has been drafted, each party is advised to have their attorney examine it, just as you would any other legally binding contract. Once all is agreed upon, both parties sign it. It is then submitted to your Iocal county courthouse with any other necessary divorce paperwork, which your divorce mediation firm can help with.
So Why Not Just Hire Attorneys?
When divorce proceedings are led by attorneys on each side, the goal becomes winning, not discussion and negotiation. And as with any competition, you may lose — in many ways. The divorce may take longer as it can be difficult to schedule meetings with you, your ex, and two attorneys from different firms. If the case ends up in court, months can turn into a year or two. The fees can become astronomical and decisions that will affect your life for years to come will be in the hands of a judge. Additionally, the dirty laundry of your divorce will become a public record.
So while any good divorce mediator will advise you and your spouse to “consult” with individual attorneys as you see fit, you can do this while continuing to represent yourselves. This allows you to reduce costs and maintain control of the process.
What Happens If My Ex Breaks Our Separation Agreement?
While the goal of divorce mediation is to arrive at an agreement that both you and your spouse can live with for years to come, there’s no guarantee that one of you won’t fulfill your end of the bargain. For example, what is your recourse if alimony or child support payments stop arriving? Or you have a dispute about visitation?
Remember, this agreement gets filed and signed by a judge. That makes it a Court Order just as if the judge created it herself. The court will enforce the terms of the separation agreement and the non-compliant person may be disciplined for breaking a Court Order.
What If We Want to Change the Separation Agreement Terms Later?
Should a situation arise where one person wishes to change an aspect of the separation agreement that pertains to alimony, custody, visitation, or child support, you can file a court petition to modify it. (Many states do not allow changes to property allocations or they allow changes for only 30 days.) If you both agree to the change in question, the process can be fairly stress-free. You only need to properly document the changes with both party’s signatures and have the “modifications” filed with the court.
If you disagree on this change, consider going back for one or more mediation sessions to work out the details. At South Bay Mediation, we often are asked to help past clients revise terms of their agreement due to unforeseen changes in their lives.
If you are unable to agree, you can always file a motion so that the issue gets a hearing in court.
The Benefits of Divorce Mediation
As you can see, if you choose to mediate your divorce rather than litigate it, the resulting legality is the same. However, consider that when mediating your agreement, it is likely you may feel like you got a fairer shake since YOU helped structure that final agreement, rather than being forced to abide by a judge’s ruling.
You can take the time — without worrying about mounting hourly lawyer fees — to consider “what if” scenarios that will help you account for the types of life changes that sometimes lead to broken or modified agreements. And an experienced mediator can lead you through these discussions as they are deeply familiar with common situations that can affect a divorce agreement in the years to come.
Learn how you can benefit from the expertise of South Bay Mediators. Contact us today for a free consultation.