Do I need a lawyer?
Do I need a lawyer, if my spouse and I plan to mediate our divorce?
No, in Massachusetts neither you nor your spouse are required to have a lawyer to mediate your divorce. However, a lawyer can be very helpful in a mediated divorce. For example, a lawyer can:
help ensure that your agreements will be accepted by the Court;
offer ideas to resolve complex issues based on his or her legal experience that you and your spouse may not have considered;
advise you if you have a concern or question about the agreements you are making;
introduce you to additional trusted professionals that will help you answer financial, real estate and trust & estate questions that you may need answered before reaching an agreement;
provide insight to challenging issues, such as custody and support, based on his or her legal experience that help you and your spouse reach a resolution.
It’s important to note that a lawyer can only work for one spouse, not both, even if you mediate a divorce. Therefore, it’s best that both spouses hire their own attorney and that each attorney is committed to the mediated process and their client’s desire to resolve their divorce outside of Court.
A lawyer can help ensure your mediated Divorce Agreement is accepted in Court.
The Probate & Family Court is not obligated to accept your mediated Divorce Agreement, if the Judge has concerns with it. For example, the Judge may be concerned that (a) some of the agreements are not enforceable under the law, (b) the agreement does not appear fair and does not know why you came to the agreement, even if you believe it is fair, (c) the Divorce Agreement is not sufficiently clear or complete. When these concerns arise, the Court will return the Divorce Agreement to you to fix. This can be devastating to divorcing spouses who worked very hard with their mediator to arrive at agreements that they both believed were fair.
To avoid that devastation so late in the process, meeting with a lawyer early in the mediation process can increase the chances that your Divorce Agreement will be accepted by the Court. Specifically, a lawyer can review your agreements after each mediation session or at the end, so that you feel assured that they are unlikely to raise legal concerns with the Court. A lawyer can also help prepare you to discuss and resolve challenging issues during your mediation session, so that you can make agreements with confidence. So, that you understand why you reached a particular agreement and can explain to a Court, if needed, why you consider that agreement fair.
Lastly, a lawyer can draft your Divorce Agreement in such a way that increases the likelihood it will be accepted by the Court. Lawyers know that Judges look for certain language and provisions and will make sure that your Agreement includes them. Sometimes, a lawyer may be familiar with the Judge assigned to your divorce and how that Judge views certain financial or custodial agreements and, therefore, can include measures in your Agreement to address that Judge’s particular concerns.
A lawyer can make the mediation process more productive and efficient, as well as make you feel more confident about the experience and your agreements.
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