Many people who are planning to resolve their divorce issues in mediation wonder whether or not they need an attorney. The following information can help you understand why attorneys are necessary, when to consult with an attorney, and what questions to ask any attorney you are considering hiring.
Consulting Attorneys Play an Important Role in Divorce Mediation
Divorce can affect every aspect of your financial future. If you have children, your entire future relationship with them is at stake as well. In light of this reality, deciding not to hire a lawyer can be very risky. In most cases, you will not need full representation, just someone to consult with when things get sticky. If you aren’t able to settle everything in mediation and you unexpectedly find yourself in court, it can be a great benefit to have an attorney who is already familiar with your case. At the very least, you will need a consulting attorney to review your Marital Settlement Agreement (MSA) before you finalize it to ensure that it is both legally enforceable and in your best interests.
Your Mediator is Not Your Attorney
A mediator who is also a family law attorney can provide you with a lot of helpful legal information. Even mediators who are attorneys, however, are not permitted to give legal advice during mediation. They do not represent either spouse, and they are required to remain completely neutral throughout the process.
Each Spouse Needs a Separate Attorney
Some divorcing couples are so amicable that they think it makes sense to save money by using the same attorney. This is always a conflict of interest. Even if you agree on all your issues, your legal interests are not the same. Each of you stands to lose or gain different rights or benefits. Sometimes couples reach an oral agreement, and then one spouse hires an attorney to formalize the paperwork. In this situation, it is critical to be aware that the attorney represents only the hiring spouse. The other spouse would therefore be wise to have an independent attorney review the written MSA before finalizing terms.
The Best Time to Talk to an Attorney is Early in the Process
Obtaining legal advice before starting mediation is ideal. This can help you understand the strengths and weaknesses of your case from the beginning. It will also help you focus on important issues instead of wasting time on peripheral aspects. An attorney can help you determine what documents you need to collect and whether or not you will need any expert opinions. In certain rare situations, however, it may make sense to hire an attorney only to prepare or review an MSA. For example, if you have no children, similar incomes, and very few assets, you may be able to reach an agreement between yourselves very quickly and with minimal legal advice.
Find an Attorney with Family Law Experience
An attorney who has practiced family law either exclusively or primarily for several years is likely to have the right kind of experience to act as a consulting attorney in a divorce mediation. If the attorney is certified by the New Jersey Supreme Court as a Matrimonial Law Attorney, or at least practices with a partner who has this certification, that is an extra measure of assurance that the attorney or the firm has superior knowledge and experience across the broad range of issues that might come up in a divorce.
Find a Settlement Oriented Attorney
Once you have made a commitment to resolve your issues through mediation, you will want to rule out any attorney who is not settlement oriented. Your goal is to partner with someone who shares your interest in collaborative solutions. On the other hand, even when both parties are committed to mediation, court intervention cannot always be avoided. Unless you have already agreed on virtually everything and are consulting with an attorney solely to finalize your MSA, it is a good idea to have an attorney who will be assertive in protecting your interests in court if that proves necessary.
Initial Attorney Consultations
Before consulting with an attorney, take some time to clarify your goals for the outcome of your case, and begin to educate yourself on New Jersey divorce law. (You can find ample information on the Weinberger Divorce & Family Law website.) Understanding what may be involved in your case can help you decide how much attorney assistance you are likely to need. You can then take advantage of the free initial consultations many attorneys offer to screen two or three candidates. Talking to a few different attorneys is also a good way to get perspective on your case.
Let the attorneys know what your issues are and whether or not you have already reached any agreements. A good attorney will outline both the upside of your situation and any potential pitfalls. While it may not be pleasant to hear that you are unlikely to get everything you want, or that there is a chance your case could end up in court, it is better to be prepared up front than surprised down the road. Depending on the complexity of your case, consider asking a prospective attorney some or all of the following specific questions:
Skills and Experience
- How long have you been practicing family law?
- What percentage of your practice is family law?
- Are you certified in matrimonial law or are any of your partners certified?
- Do you have any other specialized education or training?
- How many clients have your represented as consulting attorney in mediation?
- How many family law court procedures have you handled?
- Do you generally recommend mediation?
- How many of your cases settle through mediation?
- Under what circumstances would you recommend filing a motion in court or taking a divorce case to trial?
- Will you personally handle my case?
- Who will provide back-up if you are unavailable?
- How often do you accept or return phone calls?
- Do you prefer to communicate primarily by phone or primarily by email?
- What is your hourly fee for mediation consultation?
- What is your hourly fee for litigation matters?
- Could I be responsible for other costs beyond hourly fees?
- Will you require a retainer at any point, and if so, what amount?
- What other fees might I incur as a result of hiring other professionals (e.g., accountants, child psychologists, appraisers, private investigators)?
- What are some of the different scenarios and contingencies that may affect the ultimate cost of my divorce?
One final note of caution: A consulting attorney should not be associated with the same law firm as your mediator. Contact us today for more information about using a consulting attorney in divorce mediation.