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FS-Mediation and the Lawyer & Not Working During Divorce
Jan L. Warner & Jan Collins

Question: As part of my divorce, my lawyer told me and my husband that we had to participate in court-mandated mediation. I have not been happy with my lawyer who I believe has just been shuffling papers and billing me for doing nothing.

I believe this was validated at the mediation with another lawyer who just seemed to go through the paces to earn his fee. At the mediation, my lawyer didn't even have an asset and debt list or my visitation suggestions or my budget. The mediator called it an impasse in three hours. It was a disaster. Do I need a new lawyer?

Answer: Based on the limited facts you give us (and let us make it perfectly clear that this is your call, not ours), we do suggest that you find a new lawyer.

A good lawyer should be able to plan your case after the initial interview because he or she should 1) identify the issues; 2) develop an initial strategy; 3) begin the financial preparation that includes marital assets, marital debts and your budget; 4) begin to develop a custody/visitation strategy; and 5) give you instructions on what documents you need to provide and, if you don't have them, how to get the necessary information via subpoena or "discovery."

Once the financial records have been produced, an asset and debt spreadsheet should be prepared along with your budget.

While mediation is often mandated, based on our readers' e-mails, many mediators are not proactive and often have not even been provided with case information from either party. This means the mediator knows nothing about your case when you come in and must play catch up -- a huge waste of time.

Since the mediation process is confidential and can't be used in court, it is a great tool to craft a reasonable settlement -- assuming everyone is prepared and proactively participates.

In your situation, it does not appear that either your lawyer or the mediator had a clue about your case. If your trial is handled in the same fashion, another disaster could occur, but that one would be final and binding.

What to do? We suggest you schedule an appointment with your lawyer and lay out your concerns in writing. Find out what he or she has done vis-a-vis his/her time records. Find out why he/she was not prepared for mediation.

Unfortunately, clients who change lawyers once or twice are looked upon as "damaged goods" or "difficult clients" when, in actuality, the lawyer's lack of preparation and performance are to blame for the breach in relationship.

Question: My husband left me a year ago. He has been paying all the bills and giving me $1,000 each month. I stopped working three years ago to care for our two children. My lawyer told me not to seek a job. I am concerned about this advice. Am I overreacting?

Answer: No. This is, we believe, bad advice because here is what can happen: If and when your husband gets tired of footing all the bills and seeks legal advice, he may well sue you and claim you should have been working. If the judge agrees, income may be imputed to you, child support will be less, you may not receive alimony, and you will therefore not have enough to pay your expenses.



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Suggested Reading:
Separation and Divorce Guidebook
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FS-Be Wary of Credit Issues with Ex
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FS-Becareful of Bargaining Away Alimony As Child Support
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FS-Lawyer Tells Me to Lie & Pension Double Dipped
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FS-On and Off Again Reconciles Can Create Agreement Disasters
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FS-The Dangers of Family Loans
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FS-Transference of Affection & 10 Tips of Divorce
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