.2006120951550.jpg)
Irizarry v Hayes is a recent case that came in front of the New York Supreme Court. In this case, a divorce agreement was a result of divorce mediation sessions with the separated couple and a non-attorney mediator.
Before the divorce, the couple negotiated a pre-nuptial agreement in which included an agreement that the husband will not pay any spousal support. While the husband signed the agreement, the wife did not, making the contract unenforceable.
When the couple separated, they met with a mediator who encouraged both parties to obtain representation. Even though mediation does not include attorneys, it is advisable to retain an attorney to discuss your case. Both parties had acknowledged in the mediated agreement that they had been so advised.
Retaining an attorney will help you to avoid agreeing to something that is not appropriate. An essential aspect of a mediator is that the mediator is not there to take sides and is obligated to be fair throughout the process. Despite the mediator having an obligation to being fair, you are also responsible for understanding the process and what you agree to.
After the mediation process, the husband filed for an uncontested divorce, to which the wife agreed. Some points regarding the settlement:
- Despite negotiating a pre-nuptial agreement that stated he did not have to pay any spousal support, the husband agreed to pay his spouse $20,000 from his retirement savings through mediation
- The husband began to pay child support as agreed upon
- The wife waived rights to equitable distribution on pre-marital real estate holdings by the husband
Two years after the divorce, the now ex-wife brought a case to court saying that the agreement made in mediation was unconscionable, as she was not able to review the deal with an attorney before signing.
The Supreme Court found against the wife for many reasons. First, the wife had signed an acknowledgment that she had been advised to seek separate counsel. The point that the wife made that her agreement to waive equitable distribution on the pre-marital property was based on the deal in the pre-nuptial agreement, which she did not sign. The court denied this claim since, as a matter of law, pre-marital property is considered separate, and is not subject to equitable distribution.
The final point was that despite the pre-nuptial agreement stating the husband was not obligated to pay maintenance, he did agree to payments in the mediated agreement. The court found that the process was fair, and the wife had ample opportunity to seek counsel.
Mediation is a process that many people utilize to maintain control over the details of their divorce. The process of divorce can become adversarial and cause long term animosity. Mediation helps some couples to avoid those problems, so they can divorce and begin their new lives without all that negative baggage.
However, you still must watch out for your own interests. Retaining an experienced family law attorney will give you the protection you need to get through the process fairly. In this case, had the wife obtained counsel, the issues that she brought up two years later would have been dealt with at the time.