Mediation Agreement

[danonymous]

What is the name of your state (only U.S. law)? Texas

I just went through divorce mediation with my wife. For the mediation, my lawyer failed to properly calculate the net worth of the house. I bought my house before the marriage which should not be factored into as part of community property. Also, he failed to obtain from my wife her latest net worth number as part of property division. Plus, he did not follow up on the discovery request he served on my wife which she ignored. Walking into the mediation, he simply presented a figure, saying this is the amount of money I need to pay my wife and this is the best deal I will get. I objected to his calculation, but he said with my income higher than my wife's income, I will lose more if I choose to go to trial, and even primary child custody which was granted to me during the temporary order. In the end, I signed agreement, gave my wife more money than she deserved, plus lost child support. After signing the agreement, I continue to push this issue with my lawyer, he basically says that the agreement is binding and can only be changed if I appeal to the judge and he will charge me $20,000 for going to the court. What are my legal options here? If I go to the court and fight the agreement, the money I am not going to pay my wife will end end up paying my lawyer, plus I have no idea how the judge will rule the case. Can I sue my lawyer for misconduct?

 

[tranquility]

What is the name of your state (only U.S. law)? Texas

I just went through divorce mediation with my wife. For the mediation, my lawyer failed to properly calculate the net worth of the house. I bought my house before the marriage which should not be factored into as part of community property. Also, he failed to obtain from my wife her latest net worth number as part of property division. Plus, he did not follow up on the discovery request he served on my wife which she ignored. Walking into the mediation, he simply presented a figure, saying this is the amount of money I need to pay my wife and this is the best deal I will get. I objected to his calculation, but he said with my income higher than my wife's income, I will lose more if I choose to go to trial, and even primary child custody which was granted to me during the temporary order. In the end, I signed agreement, gave my wife more money than she deserved, plus lost child support. After signing the agreement, I continue to push this issue with my lawyer, he basically says that the agreement is binding and can only be changed if I appeal to the judge and he will charge me $20,000 for going to the court. What are my legal options here? If I go to the court and fight the agreement, the money I am not going to pay my wife will end end up paying my lawyer, plus I have no idea how the judge will rule the case. Can I sue my lawyer for misconduct?

Almost all avenues are closed because you signed the mediation agreement. What theory did your attorney say you could fight it? By signing, you are saying you agreed. That would eliminate any suit against your attorney.

As to how the judge will rule on such a case, see:
http://www.3rdcoa.courts.state.tx.us/opinions/htmlopinion.asp?OpinionId=12653

Mediated settlement agreements are subject to being invalidated if they are illegal or procured by fraud, duress, coercion, or other dishonest means. See Boyd v. Boyd, 67 S.W.3d 398, 405 (Tex. App.--Fort Worth 2002, no pet.). Parties can ordinarily withdraw from mediated settlement agreements before they are incorporated into judgments, subject to having the agreement enforced as a contract that complies with Texas Rule of Civil Procedure 11. See id. at 403. However, a mediated settlement agreement concerning dissolution of marriages and suits affecting the parent-child relationship ("SAPCR") is binding if the agreement (1) provides, in a prominently displayed statement that is in boldfaced type or capital letters or underlined, that the agreement is not subject to revocation; (2) is signed by each party to the agreement; and (3) is signed by the party's attorney, if any, who is present at the time the agreement is signed. See Tex. Fam. Code Ann. §§ 6.602(b), 153.0071(d) (West 2002 & Supp. 2004). If a mediated settlement agreement meets these requirements, a party is entitled to judgment on the agreement notwithstanding Rule 11, Texas Rules of Civil Procedure, or another rule of law. Id. §§ 6.602(c), 153.0071(e). But, like other contracts, such a mediated settlement agreement can be set aside if a party was induced to enter the agreement through unacceptable conduct like duress, fraud, or other dishonest or unfair tactics. See Boyd, 67 S.W.3d at 404-05. In Boyd, the court affirmed the district court's invalidation of a settlement agreement on grounds that the husband failed to disclose all relevant assets of which he was aware despite swearing that he had. Id. at 404. The court held that a catchall phrase dividing equally all property not expressly disposed of by the agreement did not ameliorate the effect of the intentional nondisclosure of a $230,000 bonus earned during the marriage. Id. at 405. The court held that the husband's nondisclosure so undermined the adequacy of the negotiations as to render the settlement unenforceable. Id.

Unless your ex had a substantial change in net worth, the fact her "latest" net worth statement was not supplied will not be enough.

 

[AnonUserName]

What is the name of your state (only U.S. law)? Texas

I just went through divorce mediation with my wife. For the mediation, my lawyer failed to properly calculate the net worth of the house. I bought my house before the marriage which should not be factored into as part of community property. Also, he failed to obtain from my wife her latest net worth number as part of property division. Plus, he did not follow up on the discovery request he served on my wife which she ignored. Walking into the mediation, he simply presented a figure, saying this is the amount of money I need to pay my wife and this is the best deal I will get. I objected to his calculation, but he said with my income higher than my wife's income, I will lose more if I choose to go to trial, and even primary child custody which was granted to me during the temporary order. In the end, I signed agreement, gave my wife more money than she deserved, plus lost child support. After signing the agreement, I continue to push this issue with my lawyer, he basically says that the agreement is binding and can only be changed if I appeal to the judge and he will charge me $20,000 for going to the court. What are my legal options here? If I go to the court and fight the agreement, the money I am not going to pay my wife will end end up paying my lawyer, plus I have no idea how the judge will rule the case. Can I sue my lawyer for misconduct?

Attorneys often advise their clients of the temperament of the court and probably made a fair assessment when he said you would lose more if you went to trial. The time to argue fairness was during the mediation. 20k sounds about right to "fight" it out in court.

 

[danonymous]

Thanks Tranquility and AnonUserName for replying back to my thread. Prior to the mediation, I asked my lawyer multiple times on how to calculate the net worth of the house before and after marriage, and answer came back has always been "I will take care of it". While my lawyer was pushing me to constantly updating my financial figure, I did not see my wife getting pushed to update her financial figure. There was no meeting with my lawyer prior to the mediation to go over his property split calculation. The mediation agreement is almost the same as my wife's settlement proposal a month before the mediation, why do we even need to have a mediation when we are going to agree everything she wanted? Walking into the mediation, I feel like walking into a setup. There is the mediation agreement, with no negotiation, either I sign it or facing the possibility going to trial.

My lawyer never told me on how I can change the mediation agreement, just saying if I want to change, I will go through the trial in front of a judge and he will charge me $20,000 for the service.

It is my fault for relying too much on my lawyer, figure he will do the proper job, and totally not expecting the outcome.

 

[LdiJ]

Thanks Tranquility and AnonUserName for replying back to my thread. Prior to the mediation, I asked my lawyer multiple times on how to calculate the net worth of the house before and after marriage, and answer came back has always been "I will take care of it". While my lawyer was pushing me to constantly updating my financial figure, I did not see my wife getting pushed to update her financial figure. There was no meeting with my lawyer prior to the mediation to go over his property split calculation. The mediation agreement is almost the same as my wife's settlement proposal a month before the mediation, why do we even need to have a mediation when we are going to agree everything she wanted? Walking into the mediation, I feel like walking into a setup. There is the mediation agreement, with no negotiation, either I sign it or facing the possibility going to trial.

My lawyer never told me on how I can change the mediation agreement, just saying if I want to change, I will go through the trial in front of a judge and he will charge me $20,000 for the service.

It is my fault for relying too much on my lawyer, figure he will do the proper job, and totally not expecting the outcome.

Its very possible that what your wife's settlement proposal was fair and in line with what a judge would order. Its likely your attorney encouraged you to sign a settlement that was fair. Its likely that your attorney quoted you such a high price to take it to court because what YOU wanted was not in line with what a judge would order.