Originally Posted October, 2016.
Couples who want to divorce each other respectfully often fear that bringing two lawyers into the mix will turn a quiet breakup into World War III. In recent years, some Wisconsin attorneys have expanded their practices to include divorce mediation services. When a lawyer mediates a divorce, the lawyer can give legal information to the couple, but not legal advice.
What’s the difference? “Legal information” includes answers to questions like these:
• “What are the laws that determine how a couple divides property in a divorce?”
• “How is child support usually calculated?”
• “What does ‘legal custody’ mean, and how is that different from ‘placement’?”
• “How do I file for divorce?”
“Legal advice” is when the lawyer takes the facts of a case and looks at how the law might apply. It includes answers to questions like these:
• “Do I have a right to maintenance (‘alimony’) from my wife?”
• “My husband had a house already when we got married. Now he says I don’t have any right to stay there anymore. Is that true?”
• “My wife has a new boyfriend; can I keep him from being around the kids?”
For some couples, legal information is 95% of what they need. Once they understand what the laws say, they feel comfortable working out their issues with the help of a mediator, but without getting legal advice. That’s important, because the mediator has to be neutral between the two of them. If she gave legal advice, the advice might benefit one person more than the other, and that wouldn’t be neutral. So attorney mediators take off their “lawyer hats” at the mediation door, and they use their skills in helping people reach agreements. Most mediators recommend that any spouse working on resolving a divorce through divorce mediation invest the money to have a lawyer look over any proposed agreements before signing documents. That way, they will at least have enough legal advice to decide whether the agreement is reasonable. But whether or not to get legal advice is up to the individual. The couples then use standard forms provided by the state to finalize their settlement agreements.
For others, more guidance is needed. Maybe they are scared by the divorce and need someone supporting them as the process unfolds. Perhaps they know their situation is too complicated to be handled in mediation without professional direction. They might need support dealing with the emotions of divorce, or need a buffer of an attorney to help them speak their minds to their spouse. These cases are more suited for Collaborative Divorce than mediation. In a Collaborative Divorce, each spouse has a lawyer providing not just legal information, but legal advice. A structured process helps the spouses work through issues of support, children’s needs, and property division with the help of trained team members: attorneys, coaches, child specialists, and financial neutrals. Collaborative attorneys then draft up the marital settlement agreement and any other documents needed to finish the divorce, and they go with their clients for the final hearing when the couple’s agreements are approved by the Court.
So if you are considering different options for your divorce, think about whether you will want the comfort of someone providing you with advice about your situation rather than just information. Consider the benefit that a divorce coach or child specialist could bring to your family. Assess the need for a neutral financial expert to help figure out options for support or property division. Decide whether you want to go to the final hearing alone or with a trusted advisor at your side. If you would like the support that the Collaborative Divorce process offers, contact one of the professionals listed on this website for a consultation.
-Rebecca Oettinger, JD
Driftless Mediation & Family Law LLC