Is a Divorce Mediation Agreement Legally Binding?
Divorce mediation is a process, but that process must produce a written, fully executed agreement to memorialize the decisions made. When dealing with the intricacies of separating one marital estate into two distinct legal, post-divorce entities, a few notes or memories of discussions will not suffice.
As your divorce mediator, I bring over 20 years of family law experience to the documents I create for you after your mediation sessions are complete. Your Property Settlement Agreement, which in mediation is called a Memorandum of Understanding, should detail and discuss disposition of every asset, debt and retirement asset held by either or both parties as of your date of separation. This includes personal property, real estate, debt or assets inherited by one party or held by one party prior to the marriage date.
Sometimes the date of separation itself is negotiated in mediation, but once established, it becomes the axis upon which Pennsylvania divorce law turns.
Properly signed and executed, the Memorandum of Understanding is a fully enforceable legal contract. It must be signed before the divorce is final to be incorporated into the Decree as an Order of Court. However, it stands as a legally binding contract from the date the last party signs, unless otherwise specified in the contract.
For instance, it is not uncommon to specify in a Memorandum of Understanding the period of time in which jointly owned property such as a house must be listed for sale. It is possible to include details of child support or alimony in an Agreement, even if not calculated according to Pennsylvania state guidelines. As long as both parties agree and properly execute the Agreement, such details can be legally enforced should one party default after the fact.
A Memorandum of Understanding can be added to or amended after the fact. The process is the same: the parties meet with the mediator, discuss what needs amending, and agree as to how to proceed. I would then create an Addendum to the Memorandum of Understanding which goes into effect after both parties have properly executed the Addendum. The Addendum also must be filed with the Court, even if the divorce has already been finalized. In this way, the parties preserve the right to legal action if one party defaults.
After mediation, custody issues can be dealt with in a separate document called a Custody Stipulation, which I will discuss in my next blog.
As a divorce mediator, I work for both parties equally. Thus, I cannot ethically advise one or the other as to their best legal interests. For this reason, I always suggest that the parties each pay their own lawyer to review the documents that come out of mediation prior to signing and completing the legal contracts. Some shy away from the cost of hiring a lawyer to review the agreement. But it can be pennywise and pound foolish to skip this step, as a divorce settlement has the potential for impact decades in the future.
If you would like to discuss divorce mediation, I offer a free initial consult. Please call my office at 215-345-5259 to schedule an appointment.
-Elissa C. Goldberg, Esquire
Law Office of Elissa C. Goldberg
107 North Broad Street, Suite 211
Doylestown, PA 18901