How one divorces, in an Adversarial System or Collaboratively can say much about what is most important, what is valued most.
My is heart is broken, how could it be? In the face of hopes and dreams of an ever-lasting future together. Till death do us part, and then…
Many Divorce Mediations, include complex financial issues that are often complex …these issues include those where one spouse’s pension is made up of both pre-marriage (sole and separate) contributions and marital contributions
How do I choose a Divorce Attorney? Choosing an attorney who is right for you and right for you is among the most significant decision a client must make.
When we believe something, the mind looks for proof and validation that what we are believing is true, whether these be other negatives around a stressful belief or positives around beliefs that are at the opposite pole of peace and calm and kindness.
It is generally thought best that overnights for young children be carefully considered by divorcing parents before they are initiated. Key to the success of such overnights are good communication skills and each parent’s ability to put aside their own desires for the benefit of their young children. Above all, the child should not be witness to parental conflict and blame toward the other parent. While children are resilient and can bounce back from difficult divorces with the proper help and guidance, this is not true where the parents openly exhibit hostility toward each other. Seeking to alienate the children from the other parent can lead to lasting emotional and psychological damage that may lead to depression, drug use and other mal-adaptive behaviors on the part of children.
Divorcing parents of young children who are contemplating a parent plan that includes overnights for each parent will serve their children best if there is consistency between the two households. This consistency may include similar routines like bedtime and meals, similar limits and expectations for the children and the use of the same caregiver.
There is no one plan or one way or one guideline that fits all overnight situations for young children. Parents will do well to listen to their own higher instincts and put themselves aside as best they can, so their focus can be on what their particular child needs – and then plan around that focus.
There is a team approach in the collaborative divorce. Attorneys and professionals in allied divorce related fields are used to lead the collaborative team in their fields of expertise. They are: 1) a financial professional for asset, obligation and spousal support payment issues; 2) a licensed mental health professional as a divorce coach attending to the clients’ emotional divorce while the legal divorce is proceeding; and 3) a licensed mental health professional who serves as a child specialist in aiding the clients with the parenting aspects of the case, including the parent plan. These allied professionals do a superior and more cost effective job than do attorneys, who often attempt to take on these skill sets at a higher fee structure.
Preserving Family Relationships.
The entire collaborative team, attorneys included, has a guiding principle of helping preserve the transitioning family’s connections, especially where children are involved. Too often we see families torn apart and children needlessly suffering because of the sometimes hostile and often competitive, win-lose nature of the adversarial divorce.
Control and Client Empowerment.
The collaborative attorneys perform many of the same kinds of legal functions as they might ordinarily – providing legal advice, exploring legal options and explaining the law. However, there is a strong emphasis on empowering the clients by allowing the case to be theirs’ rather than one taken over by the attorneys, as can easily happen in the adversarial divorce.
Confidentiality of Family Affairs.
Other than meetings occurring in the offices of any of the collaborative team members, there is no public display of the family in any kind of third party or public forum.
Family Specific Solutions.
Because the collaborative team is working together to support solutions that can work for both clients, there is not only the goal but the flexibility to create solutions that are particularly unique for the family being helped in the collaborative process.
Voluntary disclosure is the norm in the collaborative process rather than the use of subpoenas, interrogatories, depositions and other forms of discovery routinely used in the adversarial process. There are safeguards in the collaborative process even with voluntary disclosure, including carefully screening the perspective clients before undertaking each collaborative case, having a financial professional review all financial documents and the ability in the collaborative process to request and voluntarily receive any documents deemed important to the understanding of the financial aspect of the case.
At the outset of a Collaborative Divorce case, clients, attorneys and allied professionals agree they will not litigate the case nor be involved in any court intervention. Thus, before any Collaborative Divorce case is initiated perspective clients are screened by the attorneys and/or the mental health professional serving as the divorce coach. There needs to be a strong level of assurance among the team that clients are appropriate candidates for the process and have a commitment to working collaboratively when differences arise in the settlement discussions.
In addition to the team members strongly supporting the clients in reaching a successful resolution of the case, sensitivity to the clients’ underlying interests, intervening when there are signs of a communication breakdown and being creative around decisions on the issues are all built into the Collaborative Divorce process. And, when a true and reasonable impasse does occur on any issue between the clients, alternatives to terminating the process are used to resolve matters. These can include binding arbitration of financial issues and the use of a child custody evaluation to help settle issues around the children. If a case is terminated, which happens rarely, the agreement previously made are codified into a stipulation and order and the clients receive help transitioning into representation by an adversary attorney.
Rupturing Family Relationships Instead of Supporting Them.
Some adversarial attorneys may advise against using the Collaborative Divorce process because the risk is deemed too high if the case is not completed and the collaborative attorneys withdraw. What the adversarial attorney has to offer in such a situation is a final litigation “resolution” of the case. In addition to the obvious risks of litigation in ceding control of the case to third parties (attorneys and judges), there are other difficulties that answer the question of why clients look for alternatives.
In the adversarial process, while a final result can always be counted through litigation, many adversarial cases can be deemed failures for the family, despite the assurance of a final result, even absent litigation. In the adversarial divorce, families are prone to become divided given the competitive, win-lose nature of the process that often characterizes adversarial cases. This only serves to exacerbate or solidify divisions between the divorcing spouses. In addition, the children’s suffering may be heightened because of parental hostility that can be enabled in the adversarial divorce. And, the resulting financial cost to families is nearly always becomes exponentially greater. The family in an adversarial divorce receives little or no support on any level in the adversarial process, and in this life-changing event more needs to be asked of the legal profession than what it has historically offered.
The rights of an attorney’s client are no different than the rights of a customer of any other business or organization. As well, the attorney is a service provider no different than any other business or organization that provides services to the public.
Such relationships have implications for both the attorney and the client that can sometimes be forgotten if the client cedes too much power to the lawyer who is organizing and directing the legal case. Such implications include the rights that a client can and should expect in working with the attorney; rights that are recognized by all bar associations.
In every legal case, the client has the right to expect the following from the attorney:
– Respect and thoughtful treatment.
– Being kept informed in a timely way of the progress of the case.
– A prompt response to questions and concerns that are made known by the client.
– The attorney using all reasonable means to settle a case out of court without sacrificing the client’s interests.
– A periodic accounting of all funds paid by the client.
Whether the environment is at home, at the workplace or in a legal divorce discussion or negotiation, there are basic “rules of the road” that will lead to successful, non-adversarial collaborative participation.
Foremost among these is to take full and complete responsibility for what occurs in the environment. This does not mean one is responsible for everything that occurs in the environment; however, one is responsible to the environment whatever occurs. There is a big difference. For example, we cannot be responsible for the behavior of others, and we can be responsible for responding in a clear, non-judgmental and appropriate way to help improve what occurs. We cannot control the outcomes, and we can control what we bring to the outcomes.
This brings us to the next rule – before going into a situation it is helpful to have in mind what is the outcome we want. I am talking about the relationship outcome or the situational outcome rather than the specific content outcome. How do we want to feel about the outcome? How do we want it to look? And what can we do to bring that about? If we have as a priority preserving the relationship with integrity, for example, then we will act with integrity in respecting and giving full consideration to the other party.
This will require us to be aware of and monitor our more primitive emotions that may impulsively prompt us to lash out, blame or see the other as “the other”, rather than as a partner in the environment, however different may be our preferences and priorities. This could require us to take a brief time out to cool down or reset our emotional tenor. It is ok to do this.
We will also need to be open to some semblance of putting ourselves in the other party’s shoes; learning what is of importance or interest to them; learning as best we can how they feel about certain issues and what these issues mean for them. It is certainly ok to say: “I am interested in knowing why that is important to you. Please tell me.”
What helps in doing this is our ability to discern the values we may share with the other party and building on those. We both want what is best for the children, for example, or we both want the outcome to include preserving the relationship.
If even one of the participants in a situation keeps in mind these rule for the collaborative road, it will go far to ensure a satisfactory outcome.
Divorcing parties who enter Divorce Mediation are generally advised by their mediator to have the final agreement reviewed by their separate attorneys before signing. For the client who wants additional assurance that the agreement coming out of the Divorce Mediation process is equitable, having separate counsel review it prior to signing can address that concern, if the reviewing attorney is involved at the beginning of the case.
Since it is only the client and not the attorneys who actually take part in the actual mediation sessions, the challenge in reviewing the parties’ final agreement is that the attorney was not privy to all the considerations and detailed information that led to the final decisions. And, to do the research and duplicate all of document reviews and analysis that occurred in mediation is not cost effective and it defeats the purpose of efficiency built into mediation, as well as the focus on client centered decisions that characterize divorce mediation.
However, what the reviewing attorney can do at the outset of the mediation and continuing through the mediation process is to pay special attention to the viability and integrity of the process being conducted by the mediator. This will do as much as anything to assure that the outcome of the process will result in an equitable outcome.
Several examples of this are these:
If there is a residence to be purchased by one of the parties, what is the process used to ascertain a current residential market value and how will the amount of the buy-out of the other party’s equity interest be determined. Are the parties’ going to decide themselves the residential value, will a market analysis be conducted or will an appraiser be hired to place a value on the residence? And, once the residential value is determined, what formula will be used to arrive at each party’s marital interest? Each way of proceeding has its own considerations for an equitable outcome.
Another example concerns the valuation of a professional practice or a business. This asset could be the most significant one owned by the parties, and how its’ value is arrived at is of import for each party. Do they decide themselves, is there a standard formula that can be used to determine value or will a business valuation expert be hired to analyze and value the professional practice or business? Each of these ways to arrive at a value has its own challenges and the mediation client must be fully informed about the consequences of using each of the methods.
If the case involves spousal maintenance, and because the payment of spousal maintenance has tax consequences for each party, how will the mediator go about helping the parties know what might be the actual net dollar discretionary amount of varying amounts of monthly spousal maintenance payments? Do the parties decide themselves, does the mediator make suggestions or is a financial expert brought in to help the parties know the tax consequences of their decision?
These are just a few examples of what a reviewing attorney needs to consider at the outset of the Divorce Mediation to be sure the integrity of the process is solid. If so, the reviewing attorney will be in a position to know whether the way the mediation is being conducted is viable and will allow for a fair result.