{"id":532,"date":"2018-01-16T17:53:16","date_gmt":"2018-01-16T22:53:16","guid":{"rendered":"http:\/\/abfifer.com\/blog\/?p=532"},"modified":"2021-04-19T16:01:05","modified_gmt":"2021-04-19T20:01:05","slug":"trying-to-add-a-provision-that-wasnt-in-the-mediated-agreement","status":"publish","type":"post","link":"http:\/\/abfifer.com\/blog\/2018\/01\/trying-to-add-a-provision-that-wasnt-in-the-mediated-agreement\/","title":{"rendered":"Trying to Add a Provision that Wasn\u2019t in the Mediated Agreement"},"content":{"rendered":"<p>The parties to a divorce, both represented by attorneys, reached an agreement in mediation and placed it orally on the record, stating that it was \u201cfinal and binding.\u201d While subsequently drafting the judgment of divorce, Husband\u2019s attorney requested a clause that the parties had agreed to during the mediation. Wife\u2019s attorney initially consented, then refused. The trial court was affirmed by the Court of Appeals: once a \u201cfinal\u201d agreement is reached, additional terms cannot be added to the judgment unless there is \u201cdefinitive evidence\u201d that both sides agree. (See <em>Amante v Amante,<\/em> No. 331542, Court of Appeals unpublished case, June 20, 2017)<\/p>\n<p>In effect, the Wife\u2019s attorney was permitted to change his mind &#8212; and\/or the Husband&#8217;s attorney was\u00a0punished for neglecting to include the provision in the mediated agreement. There seems to be no dispute that the parties agreed on this point during the mediation, and confirmed it in an email exchange between the attorneys afterwards. The disputed term concerned spousal support. In mediation, both attorneys agreed that spousal support would not be awarded because there was not much disparity in income between the spouses, but their \u201cfinal\u201d mediation agreement did not mention spousal support either way. Wife\u2019s attorney affirmed in a subsequent email exchange with Husband\u2019s attorney that \u201cspousal support is forever barred,\u201d and even submitted to Husband\u2019s attorney a proposed judgment that included that assertion. But, prior to entry of the judgment, Wife\u2019s attorney emailed Husband\u2019s attorney that the provision barring spousal support was not authorized by his client, and was his unilateral mistake. Husband\u2019s attorney tried several arguments to persuade the court that the statement should be included in the divorce judgment, to no avail.<\/p>\n<p>One wonders whether the mediator raised the question of spousal support with the parties as they were drafting their agreement &#8212; \u201cYou agreed that there won\u2019t be spousal support here; do you want your agreement to say anything about that?\u201d That question might have triggered a discussion that would have either (1) reminded Husband&#8217;s attorney to include the assertion in their agreement, or (2) elicited the misunderstanding between the Wife and her attorney. Either way, it might have avoided all the subsequent litigation.<\/p>\n<p>&nbsp;<\/p>\n","protected":false},"excerpt":{"rendered":"<p>The parties to a divorce, both represented by attorneys, reached an agreement in mediation and placed it orally on the record, stating that it was \u201cfinal and binding.\u201d While subsequently drafting the judgment of divorce, Husband\u2019s attorney requested a clause that the parties had agreed to during the mediation. Wife\u2019s attorney initially consented, then refused. [&hellip;]<\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[5],"tags":[],"class_list":["post-532","post","type-post","status-publish","format-standard","hentry","category-learnings-from-mediation"],"_links":{"self":[{"href":"http:\/\/abfifer.com\/blog\/wp-json\/wp\/v2\/posts\/532","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/abfifer.com\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/abfifer.com\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/abfifer.com\/blog\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"http:\/\/abfifer.com\/blog\/wp-json\/wp\/v2\/comments?post=532"}],"version-history":[{"count":1,"href":"http:\/\/abfifer.com\/blog\/wp-json\/wp\/v2\/posts\/532\/revisions"}],"predecessor-version":[{"id":533,"href":"http:\/\/abfifer.com\/blog\/wp-json\/wp\/v2\/posts\/532\/revisions\/533"}],"wp:attachment":[{"href":"http:\/\/abfifer.com\/blog\/wp-json\/wp\/v2\/media?parent=532"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/abfifer.com\/blog\/wp-json\/wp\/v2\/categories?post=532"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/abfifer.com\/blog\/wp-json\/wp\/v2\/tags?post=532"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}