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Your Mediator Should be an Active Colorado Attorney

 
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Summary:  Divorce is a legal process. Unless both Spouses are represented by their own attorneys, they should choose an attorney to mediate. Otherwise, it is likely that the mediation will be completed without an understanding of the necessary legal information. Also, an attorney-mediator can draft all of the required legal documents. A non-attorney is prohibited by Colorado law from drafting or even recommending the required documents.

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Using an Attorney as Mediator for a Colorado Divorce

In order to effectively mediate, both Spouses must understand their legal rights and responsibilities. This includes an understanding of joint liability for marital debt, including an existing home mortgage, vehicle debt, and credit card debt. And an understanding of how marital assets can be divided, including tax-deferred retirement plans and how they can be divided without tax consequences. As well as spousal support and child support. And co-parenting under the law, including relocating (moving away) out-of-state or even certain in-state moves with or without the minor children.

A Colorado attorney who practices divorce and family law in court is able to advise both Spouses of the appropriate legal information, including how a court may rule on certain issues. An attorney-mediator will likely have experience with the courts and have a better understanding of the law, including the Colorado Supreme Court and Court of Appeal case law on family matters.

Therefore an attorney-mediator can often mediate a divorce settlement and eliminate the need for a separate attorney for each Spouse. (However, each can hire their own attorney.)

Additionally, particularly with the new 2005 changes in the law, bankruptcy is often a part of many divorces. Legal information as to whether bankruptcy is advisable, whether one or both Spouses should take bankruptcy, and whether bankruptcy should be taken before or after the divorce is finalized is an important analysis which should be performed only by an attorney who includes bankruptcy as a part of the attorney's practice.

However, it is appropriate to note that an attorney-mediator cannot represent either party with specific legal advice to advocate against either party and must remain neutral.

Using a Non-Attorney as Mediator Can Lead to Unfair Results

If a non-attorney mediator is chosen, then both Spouses should be represented by their own attorney. Or an independent consulting attorney should be used. I routinely see legal malpractice by non-attorney Mediators as the typical result of a mediation where neither Spouse is represented by an attorney and no consulting attorney is used.

Even though only a licensed attorney can legally provide legal advice and draft all of the required legal documents, many non-attorney mediators are conducting mediation sessions as though accurate legal advice is being provided to both parties by that mediator. These mediators do this in order to market their mediation services. Even though this practice is a violation of Colorado law.

For example, after a divorce had been recently completed through a well-publicized Denver mediation service, the Wife came to me to review the division of assets after the decree had been issued. Upon review, I noticed that the Wife had received about $200,000 less of marital assets than the Husband. The Wife advised me that, because the Husband's civil service pension plan limited her rights in the Husband's retirement plan, the mediator had advised her that "this is the way it has to be." In other words, after a marriage of more than 30 years, the Wife had to settle for $200,000 less than what her former Husband received. That advice was wrong. And since the divorce had already been finalized, it likely cost the Wife about $200,000.

Another example that I routinely see is where one Spouse keeps the marital home, but does not refinance the existing home mortgage to remove the other Spouse from this debt. The result here is that the Spouse who does not keep the home eventually finds out that he or she is still liable on the existing mortgage. If a mortgage payment is late, then both former Spouses will suffer credit problems. Further, the former Spouse who leaves the home no longer owns any part of it, but cannot purchase another home because he or she is unable to qualify for a new mortgage. This fact pattern is common. The treatment of vehicle debt and credit card debt is similar.

Using a "Certified" Mediator

Colorado does not "certify" or otherwise license or regulate mediators.  All "certifications" are bought from private individuals. A claim of "certification" is misleading, unless there is a clear disclosure as to what that claim means.

   
     
GIF The material on this web site is for informational purposes only. This law firm practices only in Colorado. An attorney-client relationship is established only when an agreement as to the scope of representation and fees has been signed and a retainer paid. Colorado law may consider these web site materials to be attorney advertising. GIF
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