General Questions Family Law Mediation
General Questions
CAN I REPRESENT MYSELF?
ANSWER: You can, but you shouldn’t. Acting as your own counsel is certainly not advisable. Qualified legal representation brings knowledge, skills, and experience to the table.
SHOULD I WAIT TO SEE HOW THE CASE IS GOING BEFORE I DECIDE TO HIRE A LAWYER?
ANSWER: No. If you attend a mediation in a divorce or meet with the lawyer representing your spouse or child’s other parent, you may give up valuable rights without knowing it. Consulting with legal counsel immediately allows you to consider every possible option of a case.
DO I HAVE TO TELL MY ATTORNEY EVERYTHING?
ANSWER: Yes. If you fail to communicate with your attorney, you are risking the outcome of your case. Your attorney must be prepared for every issue that could arise during your case. Because your attorney is bound by law to hold the information you discuss in strict confidence, you need not worry about the information falling into the wrong hands or it being used against you.
Family Law
WHAT HAPPENS IN A DIVORCE?
ANSWER: There are a number of things that happen when you decide to file for divorce: a Complaint for Divorce is filed, you can mediate and hopefully settle your case with your spouse, you will need to provide the other side and your lawyer with financial and other relevant information about your life, your marriage, your children and all finances. You may attend a temporary hearing in front of a judge where child support and alimony and other temporary issues, such as who stays in the house and who moves out, will be decided on a temporary basis. There are many variables and factors that decide how things will play out in your case – we strongly recommend you have legal counsel from the beginning of a divorce.
IS IT POSSIBLE TO GET DIVORCED WITHOUT GOING TO COURT?
ANSWER: Yes – in some cases. If you and your spouse can reach a reasonable agreement that divides your property and determines how you will share custody of your children (if you have children) then it can be presented to a court by an attorney without necessarily requiring you or your spouse to go inside a courthouse. You can attend mediation if you cannot work things out or you can agree to settle at the same time you file for divorce. If you can settle your case prior to filing for divorce you can be divorced in as little as thirty-one (31) days – -according to Georgia law (although sometimes it takes a little longer according to scheduling and other logistics).
WHAT IF I NEVER MARRIED MY CHILDS MOTHER?
ANSWER: If you have a child who was born “out of wedlock” you are still financially responsible for that child, but you do not have rights to parent that child without obtaining a court order stating that you are the “legitimate” father of that child. If you want to be a parent to your child the law generally supports that interest as long as you do it right. We are happy to discuss options with you about legitimation, child support and parenting time.
WHAT’S A GUARDIAN AD LITEM?
ANSWER: A Guardian ad Litem, or “GAL,” is another attorney who is appointed by the Court to act as a neutral investigator in custody matters. The GAL is focused on what is in the best interest of the child or children involved in a custody matter and will speak with both parents, teachers, doctors, pastors, other friends and family members as well as the children in an effort to discover what’s best for the children. The GAL makes a report to the judge with recommendations about custody and parenting time. The GAL does not make the decision about which parent has custody or parenting time with the children.
IF THE CHILD FOR WHICH I HAVE BEEN PAYING CHILD SUPPORT ELECTS TO LIVE WITH ME, CAN I STOP PAYING CHILD SUPPORT?
ANSWER: Technically, no. You are required to continue paying support to the custodial parent until such time as your child support obligation is terminated pursuant to an order of the Court. However, depending upon the specific facts of your case, there is a high probability that a court would terminate your child support obligation if custody of the child is changed to you.
THE OTHER PARENT AND I AGREED THAT HE/SHE WOULD PAY ME MORE CHILD SUPPORT. IS IT NECESSARY FOR ME TO FILE ANY ACTION WITH THE COURT WITH RESPECT TO THE INCREASE?
ANSWER: Yes, absolutely. Until the court modifies the original order on child support, the non-custodial parent is not obligated to pay the increased amount, and if he/she fails to pay that support, you would have no remedy under the original order to enforce payment.
CAN I REDUCE MY CHILD SUPPORT PAYMENT WHEN THE OLDEST CHILD GRADUATES WITHOUT FILING A CASE?
ANSWER: No. Only a court can modify your child support obligation. While a Court would likely reduce your obligation when a child graduates, you must ask the Court to lower the obligation. Of course, if the other parent consents, this may be done by agreement.
Mediation
Mediation allows you and your spouse to control the outcome of your divorce
- You can go before or after you file for divorce
- You make the decisions about how to divide your property and time with your children
- If you can find a solution together you can avoid going to court
- Most courts will order you to mediation before a final hearing – courts really want you to work things out
How does it work?
You and your spouse – -along with your lawyers – sit down with a neutral party: the mediator. You get to tell your side of the story to the mediator and you get to make suggestions and offers about how to divide your property and time with your children
Your spouse will also make offers and suggestions – you won’t always agree – but the mediator will guide you to a compromise so that you can avoid going to court and then move on with your life post-divorce
You can be in the same room with your spouse and the mediator (and the lawyers) or you can be in separate rooms so that you can speak freely with each other and the mediator
Mediation is about you and your spouse making choices for yourselves instead of a judge or a jury making decisions for you
Do I need a lawyer?
Yes. Your lawyer will work with you prior to mediation to understand what the issues are, to determine what finances and other property need to be divided and to make suggestions about how to divide time with your children between you and your spouse
Only your lawyer can give you legal advice – the mediator cannot give you legal advice so if you want to avoid making a mistake you should have an attorney with you as your advocate and guide at mediation
What does a lawyer do in mediation?
Your lawyer understands what the law is, how the court works, what a judge will allow you to agree on and can offer creative solutions to problems if you get stuck
Your lawyer’s role is to advise you to make sure that you get the deal that is best for you
What does a mediator do?
The mediator is neutral – that means that he or she does not take a side
Instead, the mediator’s role is to play “devil’s advocate” and help you to see the other side’s position and guide you to a compromise
The goal of mediation is compromise – the mediator’s job is to help you find creative ways to compromise so that you can avoid going to court and move on with your life post-divorce
Can the mediator give me legal advice?
No
Can the mediator make me agree to something I don’t like?
No.
You and your spouse are the only decision-makers in mediation – no one can force either of you into an agreement or make you sign anything you don’t agree to
Your lawyer may advise you to agree to something you don’t like – -because you don’t get a better deal in a courtroom – but no one can force you to settle
What does it cost?
Mediators charge by the hour and usually charge between $175-$350/hour
This hourly rate is usually split between the parties (so you each pay half) or can be paid from a joint account if the parties agree
You also have to pay your lawyer’s fee for time spent preparing for and attending mediation
It’s still far less expensive than preparing for and going to court
Can I force my spouse to go to mediation?
A court can order the parties to attend mediation
Both parties can be forced to show up – but no one can make you come to an agreement if you choose not to
What if we can’t agree on everything, what happens then?
If you cannot agree then you go to court to ask the judge to make a decision about how to divide property and time with your children
You will have a trial when the judge sets the time for trial and your lawyer will present evidence and witnesses
Ultimately you do not have a say in the outcome if you go to court – the judge hears evidence and decides
In mediation you have a say and you determine the outcome – in compromise with your spouse
How do I find a good mediator?
Good lawyers know good mediators – your attorney will be your first source of who to use to settle your case
You can also check out the Amicable Divorce Network at www.amicabledivorcenetwork.com for a list of mediators focused on settling divorces without fighting and drama