You and your spouse have decided to divorce and want to save on legal fees. We don’t blame you! But we do want to warn you about one option you may think will cost you less: Hiring a mediator to represent both of you during a divorce in Texas. Why? We’ve seen too many cases where sharing a mediator has backfired on people because they don’t get proper legal advice.
This includes couples that get along great and those who think they have a pretty straightforward, uncontested divorce. They just want to hire a lawyer to draft up their divorce paperwork and get the job done. We get it! But unfortunately, when you hire one person to address both parties’ interests, one of the two parties usually ends up getting the short end of the stick.
Important things to know before hiring a mediator to handle your divorce in Texas
First, many divorce mediators are NOT divorce attorneys. One couple we recently met learned this the hard way—and it cost them nearly $25,000 to find out. Because the mediator wasn’t well-versed in Texas family law, he ended up including numerous provisions inside the couple’s mediated settlement agreement (MSA) that were completely unenforceable.
On top of that, he sent the couple on their way to have an attorney draft up the divorce paperwork, so they had to pay attorney’s fees in addition to the $25,000 they already spent. Since the provisions in the MSA were unenforceable, the couple had to start from scratch. Clearly, in this instance, hiring a mediator ended up being a waste of both time and money.
Second, even if the mediator IS a divorce attorney, it’s unlikely that both party’s best interests will be served. Essentially, when you hire one lawyer to represent both parties, that person merely serves as a transactional lawyer. Why is that a problem? Once that lawyer signs on to represent both parties, he or she is not permitted to advise one party or the other that the “deal” they have agreed to isn’t a good deal for that party.
Here’s why: The lawyer has a fiduciary duty to represent both parties at the same time, which means he or she can’t offer legal advice to one party because it would be a breach of his or her fiduciary duties to the other spouse. If a lawyer can’t offer you legal advice, how is that in your best interest?
For example, say you are married to Joe. You own a house, and it is in both of your names. Joe says he’ll buy you out of the equity in the house and refinance the house six months from the date of the divorce. Seems like a fair deal right? The mediator says, “OK, if that’s what you all want to do, I’ll draft it up.” Except, what happens if Joe can’t get the refinancing? You’ve got your money, but you’re both still on the note and Joe is left in a bit of a jam. Mediators are prohibited from warning clients about these potential pitfalls.
Bottom line, if the mediator helps one party, it hurts the other. Clearly there is a conflict of interest there, and in our eyes, it’s also an ethical violation. Mediators, even if they are attorneys, can’t have a fiduciary duty to two parties who are in conflict with one another. Period.
Don’t share a mediator: Hire your own divorce attorney to represent you
If you want to make sure you receive personalized, legal advice every step of the way, hire a reputable and ethical divorce lawyer to protect your best interests. Our founder Justin Sisemore—one of the top three divorce lawyers in Fort Worth—is here to help!
To find out more about divorce and child custody options in Tarrant and Collin Counties, contact us to schedule a confidential consultation with Justin at our convenient Fort Worth location.
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