How Your Matter Can Be Resolved
There are three basic ways in which your marital issues can be resolved. These three avenues are by court action, mediation, and separation agreement. Each venue has positive and negative aspects. In addition, there are two other options used less often, collaborative law, and arbitration. While each settlement option is different, all actions will require you to provide us with information so that our attorneys will be able to craft a settlement which best reflects your needs and desires. You may not know what this information includes or where to find the information. Your spouse may refuse to provide information or may even hide information from you. There are many ways Bender LeFante Law Offices can discover these documents. The easiest and most effective manner is for you to gather and provide this information to your attorney. Unless your attorney has an idea of what you have and what you want, she will not be able to effectively provide you with what you need to settle your matter.
For All Actions
Regardless if your matter is settled by agreement, mediation, or court action, we at Bender LeFante Law Offices are going to need you to provide us with documents to support your position. The initial documents needed will include:
A) Documents for all debts and income as of the date of separation such as:
- A statement for each financial account
- A statement for each credit card
- Statements about retirement accounts, 401-ks, IRAs, pensions, deferred compensation, stock options, etc.
- Car, boat, and airplane titles and documents showing what is owed
- Statements showing debts owed including, monthly payments, medical bills, back taxes, student loans, furniture accounts, etc.
- Your last 3 pay statements
- Business records for each business in which you own more than 5%
- Check registers for the past 2 years
- Mortgage or rent statements
- Tax return for the last 2 years
- Day care expenses, summer camp expenses
- Insurance costs
- Any unusual or extraordinary debts or assets
B) A History of your Marriage
C) A Custody History
D) A Document showing your Monthly Income and Expenses
You will work closely with our paralegal to gather the necessary documents. Once these documents are provided, the attorney will review them and may ask for additional documents. Unless and until this information is provided, the attorney will not be able to provide you with an accurate picture of possible outcomes. Regardless of whether your matter is settled by a Separation Agreement and Property Settlement, a Mediated Settlement, or a Court Action, obtaining information and understanding your situation will always be part of the necessary process.
1. Separation Agreement and Property Settlement
A separation agreement is the most common means to divide property and settle other issues in a separation or divorce. A separation agreement is a contract governing the separation of the parties, the division of any and all assets, obligations, rights and liabilities associated with the parties’ marriage to one another and setting forth terms for the custody and support of the children. In most cases, the agreement will include all issues which have arisen from your marriage and the end result is a document that you will settle all matters. If, for any reason, you cannot reach an agreement on all issues, it is possible to draft an agreement on all matters on which you agree, and submit the others to the court or mediate a settlement on the remaining issues. Your agreement is a final document and cannot be modified unless each party agrees. You should not sign an agreement if you do not think you can abide by its terms. Do not make the mistake of believing it is temporary in nature or subject to change. It is enforceable as any other contract, if a party breaches the agreement the other party can proceed to court for specific performance or money damages.
A separation agreement is usually the fastest, easiest, and least expensive way to settle your case. It allows for flexibility and for the inclusion of terms which would not be available in court. In most cases Bender LeFante Law Offices would review all your documents and negotiate with opposing counsel to reach an agreement. However, in any contract, you have to have two people who have a meeting of the minds. If there is no agreement, no matter how good the settlement or how wonderful the drafting, there is no final document and you will have to proceed with one of the other avenues open to you.
Mediation is a conflict resolution process in which the a mediator, usually a family law attorney, acts as a go between to facilitate as settlement. The mediator is not an advocate for either party. Generally, you and your attorney will be in one room and the opposing party and the opposing party counsel will be in another room and the mediator will travel between the two rooms to try to work out the terms of an agreement. Many times a party who had been unwilling to compromise to reach a separation agreement will be willing to settle when faced with a mediation. Many times a skilled mediator can present facts in such a way that the parties can see the other party’s position. The mediator can also act as a disinterested third party who will give an opinion as to how the mediator believes a court would resolve your matter. As in an agreement, the most mediated settlements include all issues; but a mediated agreement can be a partial settlement limited to the matters on which the parties were able to reach agreement. In Wake County, the parties to an equitable distribution action to divide marital property are required to attend financial mediation.
Attending a mediation is a way to avoid court while still having a more structured environment to discuss settlement. Like a separation agreement, if the parties do not agree, then there is no settlement and the parties will have to proceed with other available settlement options.
3. Collaborative Law
Collaborative law is mediation with a twist. The “twist” is that all the parties and attorneys sit down together at a table and try to reach a resolution of all issues. If any expert input is required or any outside opinion desired, the parties engage the experts together and neither party has exclusive access to the expert’s report or opinions. Because the collaborative process requires the parties to cooperate and to reveal information which may not otherwise be available to the other party, the collaborative law process provides that all statements, communications, and work product produced during or for the collaboration process are confidential and inadmissable in any court proceeding. In addition, the attorneys who represent the parties during the collaborative law process are legally restricted from representing the party in any court proceeding regarding the matters which were a part of the collaborative process. Collaborative law was codified at NCGS §50-70 -§50-79.
Arbitration is an out of court process whereby an agreed upon third party can hear witnesses, review evidence and make a binding decision regarding such matters as the parties place before the arbitrator. In family law, most arbitrators are appointed either by the parties or by the court under the Family Law Arbitration Act which is found at NCGS §50-41 through NCGS §50-62. Arbitration is very similar to the procedure used in court but differs in that it is not subject to the vagaries of the court calendar and, in most cases, the parties can select the person who is to act as the arbitrator. The arbitrator’s decision is a judgment and is not subject to negotiation. It can be made into a judgment of the court and is then enforceable as any other judgment. The down side is that the parties will be required to pay for the services of the arbitrator.
The final type of action is litigation. In litigation you give up the ability to be a part of the decision making process in return for an enforceable judgment. Litigation is needed where parties are unable to reach an agreement either through mediation or negotiation of an agreement, or if there is a need for immediate intervention by the court to protect a person or asset. Even if parties start with litigation, it may be possible to conclude matters outside of court. Conversely, even if the parties begin the process with an attempt to mediate or negotiate a settlement, it may be possible to narrow down issues and litigate only those matters which could not be settled by the parties, thus streamlining the court process. Some parties find that due to non-legal issues they are unable to resolve matters outside the court and that it is necessary to file an action. Court actions are usually the most time consuming and expensive, and provide the least opportunity for personal involvement in the crafting of the order. When proceeding to court, you are able to take advantage of discovery laws which require parties to provide information under oath, and which provide a means of obtaining information from third parties.
Regardless of whether your matter is a complex one or an uncontested distribution, we at Bender LeFante Law Offices want the final product to reflect your needs and desires. In order to advise you properly, we need you to gather information and provide it to us as soon as possible. The attorney will review the documents and consult with you as to your needs and desires. In order to provide effective representation, your attorney will need you to review a written history of your marriage, paying particular attention to any matters you believe to be significant. If custody is at issue, you will also need to provide us with a custody history and list of possible witnesses. You will also need to provide us with financial information. While many people do not have all the necessary information when they begin the separation process, it is important to gather the information as quickly as possible so that matters can proceed.
Do not underestimate the need to be equally prepared for drafting an agreement, negotiations, mediation, or arbitration as for court. Being able to back up negotiations with facts will lend credence to any position. Amorphous statements that “My client hopes to return to college” are no where near as persuasive as “My client has made inquiries as to the teaching program and has determined that she needs 29 credits which she can earn in 2 years if she attends school full time and then she needs an additional year to obtain employment and stabilize her job situation.”
Last, do not forget that there are at least two parties to any action. While we will strongly advocate for your position, we will also counsel you as to the strengths and weaknesses of your matter and suggest possible alternatives and compromises. Unless you know where you stand, you cannot make a reasoned decision as to how your matter should be resolved. Whichever process is right for you we are able to give you the support and expertise that you need to successfully settle your family law matter.