Mediation and Divorce - Can we use one lawyer to get divorced?

No, if you are looking to employ one lawyer to represent you and your spouse in a divorce. Yes, if you hire a lawyer to act as mediator to assist you and your spouse reach an agreement.

The key difference is the role of the attorney you hire. If you hire the attorney to represent you, they can not represent the other party as well. The attorney ethics rules prevent (yes, attorneys have ethics rules, even divorce attorneys) the same attorney from representing both parties interests. However, there is nothing preventing one party and his/her attorney from creating an agreement and proposing it to the other party to settle the case. This happens all the time.

When you hire an attorney to mediate your case that attorney does not represent either party. That attorney's interest in the case is to fulfill his/her role as mediator by helping drive the parties to reach an agreement. That attorney can answer questions and can play 'devil's advocate', but can not provide legal advice. What is the difference? Well, an attorney you hire will (hopefully) think 2 or 3 steps ahead for you and will point out to you how certain aspects of the agreement might affect you, your kids, or your business in the future. The mediator can not do this as he/she must remain impartial. For example, an attorney you hire to represent your interests would counsel you to require that the other party take certain action to limit your exposure for joint and/or future debt and will suggest ways to do this that serve your best interest; whereas, an attorney you hire to mediate the case can offer solutions for resolving the debt issues if asked, but can not draft the agreement in a manner that looks out for one parties subjective best interest.

A proposed change to Indiana law should make it easier for mediators to assist the parties in creating the necessary documents to instigate and settle the divorce issues. Stay tuned...

Custody - Do cheating and homosexuality make you a bad parent?

Do infidelity and homosexuality somehow make you a "bad parent"? Different people will have different answers. I can't begin to answer that question. Luckily, today the Indiana Court of Appeals published a decision discussing how these issues effect a custody case.

In finding for custody in favor of the Father, the Court of Appeals noted that the trial court relied on not only "Mother’s homosexuality but also to her infidelity and questionable judgment by interacting with individuals who may affect the children’s best interests, and there was evidence that would support the award of custody to Father regardless of any evidence of Mother’s homosexuality."

The Court went on to describe the evidence supporting the order in favor of Father:

The evidence from the dissolution hearings reveals that Mother began having extramarital affairs in 2006, including relationships with individuals who had been convicted of drug-related offenses. Mother was planning on getting a house with her current girlfriend, who Mother had supervised when she was on probation from cocaine-related convictions and who was unemployed, was still married, and had three children. Various witnesses testified that Father was devoted to his children, played with them, and had made them his priority.

Other witness testimony also strongly supported the the order in favor of Father.

Okay. That is interesting, but didn't answer the question. The question was "does infidelity and homosexuality make you a bad parent?" The Indiana Court of Appeals decision issued today suggests that homosexuality, in and of itself, is not a basis with which to decide custody. This is supported by other Indiana cases. So the answer is - no, homosexuality does not make you a bad parent.

However, as to infidelity, I think the answer is different. If it is accompanied by other instances of poor judgment and - this is important - is part of a history showing risky conduct of the parent, infidelity could be relevant in a custody determination.

DIY divorce

Look, I am a divorce attorney so don't expect me to recommend or endorse you being your own attorney. While you know the facts and truths of your circumstances better than anyone else ever will, the mechanics of getting a marriage dissolved can be tricky.

The devil is in the details. How debt obligations are dealt with is a huge problem. With the current economic climate, issues related to the repayment of debt, as well as lack of credit, are tough to tackle. Does completing a quitclaim deed alleviate your obligation to pay the mortgage? Absolutely not. It is amazing how often that mistake is made. What if your soon to be ex is eligible for bankruptcy... will the joint debts he agrees to pay be discharged leaving you responsible to the creditors? Maybe, but there are things that can be done in crafting the divorce settlement order that offer you protections.

If kids are involved, then for too many reasons to list - GET AN ATTORNEY! Maybe you can't afford an attorney with a high hourly rate to handle the entire case start to finish, but you can't afford not to at least have a consultation regarding the child-related issues.

Nonetheless, if you need to go it alone and need access to forms and information, the State of Indiana sponsors some information. Please click on the title of this post to link-through.