As a family law attorney, you know that more and more divorcing couples today, even high-asset couples, are choosing to obtain a mediated divorce as opposed to a traditional litigated one. While mediation offers couples the opportunity to resolve their differences in a cooperative and non-threatening environment, you also know that the agreements they reach must be reduced to writing and filed with the court. It is here that both your legal training and your CFL Designation for Divorce Practitioners serve your client’s best interests.
Most mediators are not attorneys. And only you, as an attorney with a CFL credential, can use the advanced financial knowledge and skills it gives you to first understand your high-asset clients’ complex financial issues and then draft unambiguous property settlement agreements, child support agreements and spousal support agreements.
The Supreme Court of Nebraska addressed the post-divorce issues that can arise when a high-asset couple chooses to have a mediator instead of an attorney draft their divorce documents in the recent case of Mark Alan Carlson v. Karen Sue Carlson.
In this case, a high-asset couple, both physicians, chose to obtain a mediated divorce in 2008. The Carlsons allowed their non-attorney mediator to draft their documents and also did not hire attorneys to represent them at their divorce hearing. Instead, they represented themselves and asked the court to incorporate their property settlement agreement into the court’s divorce decree, which it did. Their PSA included provisions for Mark’s payment of child support and the children’s educational expenses not only while they were minors, but after they reached the age of majority if they pursued higher educations as full-time students. The pertinent part of the PSA stated that. “A child will not be determined to be emancipated and child support may continue past age 19 … if a child attends college or vocational training.” Neither Mark nor Karen appealed from the entry of the divorce decree.
All went well until the Carlsons’ eldest child, a full-time college student, turned 19 in 2015. At that point, Mark stopped paying child support for this child and the Carlsons went back to court, this time represented by attorneys. Mark’s main contention was that the words “may continue” in the PSA meant that his payment of post-majority child support was “completely discretionary on the part of the person paying it.”
The couple’s second child likewise turned 19 and became a full-time college student by the time of the trial. The district court granted Karen’s request for a declaratory judgment as to the PSA’s meaning, finding that while the PSA was ambiguous, Mark’s interpretation of its language had no merit. It therefore ordered him to continue paying child support and educational expenses for his two post-majority children. Mark appealed.
Supreme Court Holding
When this case reached the Nebraska Supreme Court in 2018, it affirmed the district court’s order, holding in relevant part:
“Mark suggests the term ‘may’ is permissive and affords him the discretion to pay post-majority child support if he thinks it is needed. We reject this construction not only because it invites construing the judgment to be conditional upon Mark’s decision to pay, but because there is no support for such a construction within the four corners of the judgment. … [C]onsidering the entirety of the decree and incorporated PSA, we find the parties agreed to an affirmative obligation to pay post-majority child support so long as the agreed-upon conditions precedent are satisfied.”
This case illustrates how an unambiguous attorney-drafted PSA can save 10 years’ worth of post-divorce litigation and expense. Should your clients wish to obtain a mediated divorce, you would do well to remind them that having you, rather than their non-attorney mediator, draft their divorce documents and represent them in court will give them more confidence that their post-divorce lives will proceed smoothly, without the need for further court intervention.
For more information on how gaining your CFL Designation for Divorce Practitioners gives you the financial knowledge and skills you need to attract additional high-asset clients, plus other benefits of AACFL membership, please visit this page of our website.