Alex Hunt:
Welcome back to the Texas Family Lawyer Podcast. My name is Alex Hunt with Hunt Law Firm. We serve the Greater Houston area with offices in Katy, Sugar Land, Cypress, and League City. You can find more information on our firm at familylawyerkaty.com, but today we are visiting with Melissa Masoom, an attorney at Hunt Law Firm, and we're going to follow up on a conversation that we had in a past episode about what to expect at mediation by talking a little bit about what you need to do to prepare for your Texas family law or divorce mediation. So welcome Melissa.
Melissa Masoom:
Hi Alex. Great to be back.
Alex Hunt:
All right, so let's do a quick recap. Tell us, if folks didn't see our past episode, what is mediation?
Melissa Masoom:
So mediation, just to simplify it a little bit is just a formal process outside of court where there's a mediator and the parties get to be in a room with their attorneys and they get to settle a case outside of court with the mediator going back and forth. So that's usually how it works.
Alex Hunt:
Well we talked about this in the past episode, but when do you need to go to mediation? And one tool that might help folks that are watching this on video is we have a child custody flowchart that lists out the entire child custody process in a typical case from start to finish. You could find that on our website, familylawyerkaty.com, You can click on resources and see the flowchart. But tell me when during a case would you need to go to mediation?
Melissa Masoom:
Well, Alex, you can go to mediation as soon as you file a case. So if you wanted to go and get some temporary agreements in place because you need something right away or immediate relief, you can do it right away or you can do it at the end of the case after you prepare and you and your attorney have had time to collect documents and all that. So you can really go right away if you need to.
Alex Hunt:
And preparation is key to mediation. One of the hallmarks of our firm is that we are over-prepared when we go to mediation. We deal with everything that we need. We don't want to waste time where the meter is running, the mediator is there, the clients are paying the mediator, you're paying the lawyer. We want to have all of our ducks in a row beforehand. So let's talk a little bit about what the conversation with your attorney before mediation should look like.
Melissa Masoom:
So you're right, I, like all the other attorneys at our firm, like to be over-prepared. So usually I like to meet with my client a couple of times before and I usually give them a list of things we'll need for mediation because what we like to do at Hunt Law Firm is make sure the mediator is over-prepared with our case. So we usually give them documents such as bank statements and anything else that they might need to help settle the case as well as exactly what my client is wanting.
Melissa Masoom:
So I always tell my clients, "Get all that ready, get any documents depending on the case." I'll give that list, is very, very important because it helps me prepare and it helps me get everything I need to the mediator. I also let them know if there's anything you want the mediator to look at that you think would be helpful, please send that over so I can send that over. And then I usually put together the first offer because I think that saves a lot of time. Like you said, it's a lot more efficient if walking in the mediator already knows what we're looking for, some of the backstory and it just makes the process go a lot quicker.
Alex Hunt:
You don't want to waste time in mediation putting together that first offer with the mediator there. So the conversation that I typically have with my clients is dependent on whether we're going to a mediation for temporary orders or for final orders and of divorce, the final decree of divorce. So let's start with temporary orders. Some folks might not be familiar with what temporary orders are. Tell me a little bit about what are temporary orders in a family law case?
Melissa Masoom:
So Alex, in Texas, we don't have anything called legal separation. So a lot of people come into our office asking can we legally separate? You can't. So for a divorce case, temporary orders, and for a custody case, temporary orders are temporary orders, exactly like it sounds. And it deals with just some agreements or things that need to be put in place right away as the rest of the case is ... The attorneys are preparing with the rest of the case. So basically things like who's going to pay what bills, child support, temporary child support, temporary spousal support, and who lives where. That's a big one. And how often you get to see your children or the other parent gets to see the children. All of that can be taken care of in the temporary orders.
Alex Hunt:
Temporary orders, I have this conversation with my clients, is not the time to decide who gets what family pictures, it's not the time to decide who gets the stuff in the garage. Temporary orders really is all about maintaining the status quo and making sure that everything is going to be okay while the court settles the final orders. And one example that I often give is particularly in a divorce, there's an expectation that a husband and a wife or partners will be able to come together and reach agreements on some important things like who's paying what bills and who's taking care of the kids and when, who's taking the kids to the doctors, who's making medical decisions?But when the marriage relationship breaks down, then often those, what should be seemingly simple decisions become very difficult. It becomes like the Wild West. There's no rules.
Alex Hunt:
And so having the court step in, put those temporary orders in place helps give order, helps maintain that status quo, but you don't necessarily need to go to court and have the judge drop the hammer and decide what's going to happen in your case. You can reach an agreement and then present that to the court and get the judge to approve. And that's the value, that's the beauty of temporary orders mediation. So that conversation should be focused on what you need, what the court may do and what your attorney recommends. Tell me a little bit about what that conversation looks like with your clients.
Melissa Masoom:
So with my clients, I usually like to draw it out because I'm a visual person of what they're actually looking for, so their wish list is what I call it, what they absolutely need, and then some of what they want or it'd be great if they got. So we list that out, and then from there we try and brainstorm what their first offer might look like. And then we talk about the fact that a couple of hours later they might not be where their first offer is and we need to talk about, "Well, what's the absolute minimum that you will walk out of there with? What would you want to walk out of there with?" And for a lot of people, for instance, it's a bottom line support number or it's, "Well, I'm not leaving the house so everything else isn't important, but I want to stay in the house."
Melissa Masoom:
And that gives me an idea of how to negotiate in the mediation. And I also let the mediator know that so that they're prepared and that they know that this person has a bottom line. Usually we don't share that with the other side because mediation is confidential. But it does give both the mediator and their attorney a good place to start and it's good to have that. So that's usually how that conversation needs to go.
Alex Hunt:
I think having that conversation about the minimum that a client is willing to accept. So your initial offer should be probably something similar to your best day in court. Don't walk into a mediation with the expectation that they're just going to say, "Yep, we accept your first offer." That's not going to happen. More often than not, I mean think about how many times you've been in mediation and we give our first offer and the other side huffs and puffs and says, "I'm going to walk out." And then we get an offer back and then our client put into a completely different mindset because it's a completely bogus offer.
Alex Hunt:
But what comes after that is the important part where we're trying to come together and the conversation about the minimum that you're willing to accept in a mediation before you decide, "That's it. Melissa, let's go to court," is so important to have before the mediation because if you don't have that conversation before the mediation, you do it during, you're having it during a time where there's a lot of emotion, there's a lot of turmoil, people get in their heads, they're not in the right mindset. And when you sign on the dotted line in a mediation, you sign a mediated settlement agreement, it's a done deal, it's irrevocable.
Alex Hunt:
So you really need to set your guardrails before you get to mediation about what's the least that you'll accept. And that's a conversation that we have. We always send our clients ... At Hunt Law Firm, we send our clients a letter confirming when mediation is, setting up that meeting. If they need another meeting, we'll set another meeting. But we're not just going to set mediation and then show up and try to figure it out then. So let's talk about temporary orders mediation. What are some of the documents that you might need from a client or what do we need to produce in order to have a successful mediation?
Melissa Masoom:
So if it's a divorce, a really important document that our clients hear about right after they sign up with us is the financial information statement. We call it the FIS. And that is basically a list of all their monthly expenses. So in a typical month, how much are they paying in rent, mortgage, how much are they spending on kids' activities, how much are they spending on bills? And it's a great way to figure out, "Well, this is how much I might need at the end." So if they're asking for child support and spousal support, that's a good place to start and it helps us kind of figure out what the needs are. And this is a very, very important document because courts require it as well if you are to go to court. So it helps you almost prepare for court and it's one less thing we have to do if we do have to go to court.
Melissa Masoom:
And I always tell my clients, "This is such an important document and I know you're scared about how you're going to do financially in this divorce, but don't inflate your needs here. Because if you are not truthful and if you can't back up what your needs are with either documents or whatever, then it's not going to be a great look for you in court." So if you have bank statements, if you have anything to back it up, I also ask for those. So if the other side's like, "Well that's not true," we have the documents to show them in mediation.
Alex Hunt:
So our clients before we go to mediation, really as soon as they sign up, they're getting a binder and our paralegals are going over what their homework is and we've got our homework too. We've got things to draft for the court, but the homework that our clients do, particularly completing that financial information statement, that might not be something that folks have really thought about. And just the process of writing down your income, your expenses can be really eye-opening, but it's an important piece before we go to mediation. Tell me about what kind of statements that we might need for temporary orders mediation.
Melissa Masoom:
So usually Alex, we ask for the most recent bank statements and the most recent pay stubs. It doesn't matter if you're not going to be the one paying child support, we usually need the most recent pay stubs if you have them. And those bank statements are really important. And even if the other side has access to those bank statements, and that's something we get all the time. "Well, it's a joint account." We still need them for both our purposes for knowing what's in the bank account, but also it's just what we need to exchange. So it gives us a good idea of how much money's coming in, etc.
Alex Hunt:
So that's the financial component of a temporary orders mediation. And in a lot of cases, if there's no kids involved, you might not need temporary orders. You might be able to come to an agreement just between the parties on how the finances will work, but then there's also the kid component if you have children, what are some of the things that need to be decided at a temporary orders mediation? And then what should people be thinking about beforehand? What should they be preparing so they're ready to make those decisions in mediation?
Melissa Masoom:
So with kids, besides the financial aspect of the kids, there's possession and access and there's conservatorship. So we have our clients, so if you think of it as two different boxes. We have our clients make sure they know what decisions they want to make with the other parent. There is the important decisions, like we call it heads [inaudible 00:14:04] and that's psychological psychiatric care, invasive medical procedures and educational decisions. Do they want to share those decisions with the other side or do they want to make them exclusively? And then we make them think, well what does possession and access look like? So do you want for you or the other side to have the regular standard possession order? Do you want something different? Do you want something that works with your work schedule? This is the time when as we're preparing for mediation, we have to think about all that because it's really important to kind of know exactly how that's going to look.
Melissa Masoom:
And it's a good time for us to also advise them, "Well, this is what the court would do. Of course we're going to ask for this, but just so you know, this is a little bit outside of what the court would give you" and it helps manage their expectations. And so you know walking into mediation, I'm asking for something that if I don't get, I might not get in court, but I'm asking for it here. So those are the things we talk about with kids. But also we need to start looking at child support calculations. And we need to make sure that we know if either our client is paying child support or the other side is paying child support, what that looks like. And sometimes we don't know those numbers, but if we do know those numbers, there's actually a calculator online we use and we make sure we're prepared to tell the mediator what we want in that aspect.
Alex Hunt:
So from there, let's say the parties get together, they reach an agreement in temporary orders, they will get a mediated settlement agreement. From there, not quite done yet with temporary orders, one of the parties' attorneys needs to draft up the temporary orders, circulate it for revisions, the lawyers will talk about some of the terms, work on the language, give it to the parties, we'll sign off, it'll get provided to the court. The court 99% of the time is going to approve it because it's the agreement of the parties and then sign it and then you'll have your temporary orders that will maintain the status quo in your case.
Alex Hunt:
So again, if you're on video watching this, then we'll put up our divorce process worksheet. We're going to skip ahead then past the temporary orders, you'll have an opportunity to do discovery, request for production of documents, interrogatories, depositions, you'll exchange inventories and appraisements. All of these documents are important so that way you're ready for a final orders mediation. So let's again talk about final orders mediation, finances, figuring out a final financial settlement. What documents do we need to have prepared before a final mediation?
Melissa Masoom:
So the inventory and appraisement that you mentioned is a big one. So that's a document that actually lists out every single asset, bank account, everything the parties have in a divorce in order to figure out, well, who gets what. So that's a big one. And that's when we're preparing for mediation, we talk about, "Well, what do you want in final orders?" Because you don't really talk about that for temporary orders. So the inventory and appraisement after the discovery process, after figuring out what the other side has is very important. Also, all the bank statements, all of that and any other documents that would help that final mediation settle is important.
Alex Hunt:
And the inventory and appraisement really is the document that during the mediation, the attorneys and the client ... At least at our firm, the client's in the driver's seat, we're providing the advice and guidance. But the inventory is the document that we're going to continue to go back to because it's a spreadsheet and on that spreadsheet we're able to create columns of who's getting what. We're able to look at percentages of what percentage is each party getting.
Alex Hunt:
The best part about an inventory and appraisement that you get before a final mediation is that it's sworn to its accuracy by both parties under the penalty of perjury. So they're notarizing it and they're signing it. And so you should be able to feel pretty well assured that it contains everything. But if you feel like your spouse is leaving something out, you'll have that run up until before the final mediation and the divorce trial, if that's where you go, to do all the discovery that you need. So you can subpoena bank records if you feel like there's things that are missing. We have connections at our firm with private investigators that can try to find bank accounts. We have forensic accountants that are on call that we can use to try to locate the entire financial picture so our clients have that for mediation. But that's the key is knowing the entire financial picture so you know what you're dividing and there's no secrets. Anything else for the finances at a final mediation that folks need to think about ahead of time?
Melissa Masoom:
Well, I mean who gets to keep what bank account is important. If they have a joint account, who's going to keep that? Who's going to get off of that? Those are all important things. And then again, back to I guess the bigger assets also like the house. If they're going to keep the house, who's going to pay the mortgage? If someone's going to refinance, those are all important things to think about at final. Those are not things we talked about probably at the temporary orders mediation. So the financial aspect of the final divorce mediation includes all of that and also includes if spousal support's going to be an issue. So if spousal support is on the table, then what does that look like? How long is that going to last? How much is that going to be? That's all included in a divorce [inaudible 00:20:22].
Alex Hunt:
And then of course if it's a divorce or if it's a child custody case, then the kid issues are going to be front and center and that includes conservatorship, where that child's primary residence is going to be. Who's going to be making those decisions that you mentioned before, medical, psychological, psychiatric, educational decisions, possession and access, which is a fancy way of saying who has the kids and when and child support. The good thing about a final mediation though is that hopefully you've had some time under temporary orders or just during the pendency of the case to try some things out and so you know what works and doesn't work. What does that conversation with the client look like ahead of time and what are some things that people should know going into making those decisions in final mediation?
Melissa Masoom:
So one of the things I have to tell clients is during temporary orders mediation or when the temporary orders are put in place is like you said, "This is a great time to figure out what is working, what's not working. Let me know what's not working or what is working because that'll help us prepare for that final." Because once again, once it's final, it's final and you can go back and change it. But kids stuff can be changed unlike property things, but that is going to require a whole other filing in court and all of that.
Melissa Masoom:
So this is a good time to kind of think of, "Well, this wasn't working or I'd really like, for instance, the exchange location of the kids to be changed because that's not really working for my schedule like I thought it would." Or "I need this to be added to that possession and access." Whatever they want, that's the conversation I like to have with my clients is what happened during temporary orders. Do we want to keep that? And it's great when everything worked out and we just pretty much turned the temporary orders into final. But sometimes there's definitely a few adjustments that need to be made.
Alex Hunt:
And I'm thinking back to a case that we had a couple of years ago where there was a nesting arrangement, which is something that's fairly new, which is where the parties have say a house and then they have an apartment, but the parties are the ones that move back and forth, not the kids. The kids get to stay in the house. And in this particular case, we tried that on temporary orders and nesting is particularly difficult to make work. And in this case, they realized over those months that they were trying this out, this is just not going to work long-term. And so they were able to come to terms with that and reach an agreement on something else.
Alex Hunt:
We also have cases where the parties for temporary orders, we'll try things like 50-50, and they'll do week on, week off, or they'll try what we call 2-2-3, which is where you do a Monday and Tuesday with mom, and you do a Wednesday and Thursday with dad and then you switch off on the weekends. And it's a lot of moving around and parties will realize this just doesn't work for us. So having an opportunity to try some of those things out, see what works, what doesn't work is one of the benefits of having strong temporary orders and then trying it again at final orders.
Alex Hunt:
Well, I know that we litigate cases, we represent our clients zealously in mediation, but we also, you and I, and another attorney at our firm, Margaret Tucker, also mediate cases. What is your mindset? Tell me a little bit about how you go into these cases as the mediator, not as one of the attorneys for the parties.
Melissa Masoom:
So as a mediator, I usually, one, I really like when the attorneys are like at Hunt Law Firm and they prepare me for what I'm about to go into. So any kind of memos and documents really help me. But I always go in hoping that we can come to a compromise. But the most important thing in Texas, especially with kids stuff is the best interest of the child. So I go in making sure that that's at the forefront of each room, that we think about whatever emotions and whatever is happening, we're focused on the kids. So that's a big part of my mediations. I try and make them realize that, "Look, that's what the court's going to look at if you were to go to court and this is a final agreement and you need to think about your kids first because that's the most important thing."
Melissa Masoom:
I also make sure that they understand because I litigate and I've been in court so much in front of all these judges that they know if they don't compromise and they don't come to an agreement, what that court hearing or trial is going to look like. So I make sure that both sides know, "Look, this is what you'll be facing, including besides costs, which is a big thing. You're going to have to show the judge certain things. And I'm hearing both rooms and I don't know if you're going to get that." So I try and manage their expectations as well to make them come to the middle.
Alex Hunt:
Definitely. Well, Melissa, thanks so much for joining me again to talk about mediation. We have a lot of resources on our website, familylawyerkaty.com. Click on the resources tab at the top, also click on the blog tab at the top. We have a lot of blogs about mediation, what you need to prepare, what to expect when you go to mediation. Also look at our past episode, what to expect in your Texas family law or divorce mediation. If you have any questions, feel free to call our office, 832-315-5494, and we'll see you next time. Thank you.