Tuesday, August 08, 2006

Are Mediation Fees A Marital Liability Or A Cost Issue?

The answer is . . . . According to the Second District Court of Appeal in Smith v. Smith, 2006 Fla. App. LEXIS 12843 [Fla. 2nd DCA 2006], mediation fees are not a marital liability for purposes of equitable distribution as defined in F.S. 61.075(5). In this divorce case the trial court allocated to the Husband, as a marital liability, $1,960 in mediation fees paid by the Husband. Not so fast said the appellate court!

If the parties were referred to mediation by court order, the apportionment of mediation fees should have been stated in the order of referral pursuant Fla. Fam. L. R. P. 12.740(c). In this case, since the mediation fees were apparently not addressed in a mediation order, they should be addressed as a cost issue under F.S. 61.16(1).

This makes sense doesn’t it?!? If the cut-off date for determining assets and liabilities to be identified or classified as marital assets and liabilities is the earliest of the date the parties enter into a valid separation agreement, such other date as may be expressly established by such agreement, or the date of the filing of a petition for dissolution of marriage and the court ordered the parties to mediation [i.e. after the filing of a petition, how could mediation fees be a marital liability?].

Do you think the outcome would be different if the parties attended pre-suit mediation?

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