Jan L. Warner & Jan Collins
Question: My husband and I decided to use mediation to try to work out our marital problems. When we saw it was not working, we went to court. I went into mediation with what I thought was a clear understanding that the results could not be brought up in court. But my husband’s lawyer put inside information about the mediation in his brief that went to the judge. My lawyer tells me not to worry because judges don’t read the briefs, but I don’t believe I can get a fair trial now.
Answer: We tend to agree with your assessment, not your lawyer’s. If the mediation process was not cloaked with confidentiality, why would anyone in his or her right mind even think about using this process in good faith? Without confidentiality, one spouse could take advantage of the other – much like your husband is trying to do here. But the confidentiality provisions are binding not only on the spouses who mediate, but also on the lawyers. If your husband’s lawyer gave confidential settlement information to a judge, that judge should not hear your case. We also believe that your husband’s lawyer should be sanctioned for engaging in these tactics. Since a number of courts throughout the country have dealt with this disturbing maneuver, tell your lawyer to research the issue before deciding to throw in the towel and do nothing.
Question: My husband and I are finally calling it quits after more than 20 years of marriage and three children. I stopped my college education after two years to go to work so that my husband could get his law degree. Now, at 43, with no educational or work background, the prospects of my becoming employed in this economy appear bleak, to say the least. On the other hand, my husband has been practicing law for 13 years, earns a nice income (which is increasing), and has built up a healthy profit-sharing plan. Even though he and I have agreed to divide the property and have agreed to a fair amount of support and alimony, he doesn’t have enough money to take care of his expenses, to pay me support and alimony, and to pay for me to complete my college education and get a physical therapy degree, which will take me a total of five more years if I go to school year-round. In this way, I will be able to make a good living, and he can reduce my alimony. Are there ways in which I can get the money to do this without taking out loans that scare me to death?
Answer: Since your husband appears to have a number of high-wage earning years ahead of him during which he will continue to contribute to his profit-sharing plan, it might not be a bad idea for you and for him to consider increasing the portion of his profit-sharing plan that will be rolled over into your IRA in an amount sufficient to cover your educational expenses. In this way, the funds you use will be more or less transparent to him and will not affect his current economics. You, as a taxpayer, will be able to take distributions from your individual retirement plan (IRA) to pay your expenses for “qualified higher education” without incurring the 10 percent penalty for early withdrawals. This amendment to Section 72(t) became effective December 31, 1997. Before you sign your name on the line, however, it would be wise to contact a certified public accountant who can tell you about the tax burdens that may be associated with this potential solution. A well-drafted qualified domestic relations order will be necessary.
