I met with a couple recently who had a lot of assets. When I started explaining to them which ones were marital and separate, they announced “We don’t need to hear that. We’ve already worked everything out.” They produced spreadsheets and a proposal. They informed me that they just wanted their settlement reduced to a written agreement.
When I reviewed their spreadsheet and proposal, it was clearly one-sided. Had they gone to court, the judge would have likely divided the assets equally.
Unfortunately, I have seen this before. When I first became a divorce mediator, I would hear attorneys say:
“I have this mediated agreement. There were no lawyers involved, and now one of the spouses wants to challenge this terrible agreement. How could anybody let this happen? That’s why a couple should never go to mediation.”
At the time, I thought it was just sour grapes – attorneys and mediators were competing for clients. But through the years, I have seen both litigated and mediated divorce agreements where one of the spouses ended up with a disproportionate share of the assets. This can happen when one spouse:
- Feels guilty about having an adulterous affair;
- Is more savvy than the other on financial matters;
- The inability of one spouse to bargain in their own self-interest; or,
- One of the spouses is a bully and has been controlling all decisions during the marriage.
If your intention going into mediation is to beat up your spouse, because you know you couldn’t do that in court, you should reconsider. If the mediator sees one spouse ending up with all the money, they have the right to terminate the mediation, because clearly the other spouse is unable to bargain in their own self-interest.
Settlement agreements that are grossly unfair get challenged and can be set aside, so the money you spent is wasted and you may very well have to start over.
If you want to “get over” on your spouse, please leave mediation out of it. That is not what we do. Hire an aggressive, angry attorney that will try to beat up your spouse for as long as you can pay for it.