Benefits Of The Collaborative Divorce Process Compared With The Traditional Adversarial Process

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Team Approach.

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.

Disclosure.

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.

 Impasse

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 Clients Rights

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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.

 

 

Rules of the Road in Helping Establish a Collaborative Environment

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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.

The Reviewing Attorney in Divorce Mediation

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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.

Entering Into Pre-Nuptial Agreements At An Advanced Age

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Entering into a Pre-Nuptial Agreement “PNA” for couples contemplating marriage at an advanced age is a way for each to feel secure that what they have accumulated in the years prior to the marriage will be preserved. Later life couples who marry often want their individual estates to be handed down to their children after death, of, if the marriage does not work out, preserved for their retirement years. They often see that just because they marry does not mean the perspective spouse ought to have the right to part of their accumulated wealth. Entering into a PNA at an advanced age is also a way for the parties to focus on the relationship itself without being concerned about marital or sole and separate property issues.

There are certain basics that need to be part of a PNA which, if adhered, to will provide the solid building blocks for a viable agreement not subject to a successful challenge in the event of a later divorce. First among these is that each party is represented by an attorney who has fully reviewed the Agreement with each party prior to signature.

As important as legal representation is clear and unequivocal evidence that the perspective spouses entering into the PNA fully understand the Agreement by dint of their sound mental capacity. If there is any question about such capacity of a perspective spouse to fully understand the Agreement, a prior interview with that spouse by a psychiatrist or psychologist and a letter attesting to the spouse’s competency is advisable. In some cases, a video recording of the spouse, or of both spouses, in which they are questioned about the specifics of the Agreement and their full understanding of the terms is deemed advisable. This can put to rest any future claims that the Agreement was not fully understood for whatever reason.

Also important is that there be clear evidence that no coercion or duress exerted on either spouse pressuring them to sign the Agreement. A typical example is a PNA being presented to a spouse, sometimes for the first time, on the eve of the contemplated marriage ceremony, along with a threat that the marriage cannot (shortly) take place without the document being signed. Such occurrences will often nullify the Agreement.

As to waiver of payment of spousal maintenance, such waiver is a valid term in a PNA. However, if the waiver results in destitution after divorce for a party who would normally receive such support without a PNA, such a waiver may well be nullified.

If a PNA is being considered by parties contemplating a marriage, being represented by counsel is the way to best assure that such an Agreement will hold fast in the face of a later challenge.

The Value of Prenuptial or Postnuptial Agreements for Stay-At-Home Mothers or Fathers

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Financial arrangements in either Prenuptial Agreements or Postnuptial Agreements seem a sticky way to either begin a marriage or seemingly interrupt one. Either document serves to set forth the rights and responsibilities of the marriage partners in the event of divorce and can waive or modify Arizona Community Property Law and/or the statutory requirements for Spousal Maintenance.

Oftentimes, a Prenuptial Agreement is requested by those who marry later in life and bring into the marriage assets and employment income they acquired prior to the marriage. For these people a Prenuptial Agreement sets a clear financial groundwork for the marriage and can often bring a sense of stability and security that might not otherwise exist.

However, for couples just starting out in life, new to the work force and not yet having built up any significant retirement account or financial portfolio, the thought of entering into a Prenuptial Agreement may never enter their mind. This often continues to be the case after marriage for whatever are the young couple’s respective roles in the marriage, the farthest thing from their mind or inclination is entering into a Postnuptial Agreement. If I were giving advice it would be Think Again. Not to enter into one of these agreements may be unwise, especially for the child care giver.

Married couples wishing to have children usually plan this event ahead of time and determine what role each will have after the birth. Although the roles are becoming more interchangeable, typically it will be the husband/father who continues his employment and the wife/mother who will care for the children for some pre-determined period of time.  Often there is little discussion about the impact on the child care giver of being out of the work force a prolonged period of time.

Whatever may or may not be the degree of planning around these respective roles, the fact is that husband/father may gain a number of years building his employment resume, and wife/mother may lose a number of years not doing so.  In the unhappy event of a divorce what happens when it is expected that wife/mother suddenly enter the work force without having any connection to it for the child-rearing years? Must she then struggle and argue for financial support?  Often this can be the case.

It seems clear under these circumstances that a well thought out child-rearing and employment plan for both husband and wife – financial provider and child care provider – would include a Prenuptial Agreement or a Postnuptial Agreement to address the important issues of economic independence for both parties.  This is where the Prenuptial Agreement or the Postnuptial Agreement can provide invaluable direction. Whenever the child rearing plan for the marriage is discussed, it may be wise to make part of that discussion what additional plan is agreed upon to allow the child care providing spouse ample time and resources to address the years she missed building her own resume while she cared for the children.

Such a plan can be formally addressed in the Prenuptial Agreement or the Postnuptial Agreement. This can occur through written provisions for spousal maintenance and for the allotment of sufficient assets to aid in education, training or other retooling measures, so the former child care provider can be secure knowing aid is available for the next step into a field of employment.

Settlement Negotiations with Divorce Lawyers

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As a long time divorce attorney, I have experienced a range of approaches to settlement negotiations, and the attitudes taken by my colleagues who also specialize in the field of divorce and family law. As I have moved from the traditional adversarial model of divorce settlement negotiations and used mediation and collaborative divorce settlements to resolve divorce cases, it has become clear how limited and myopic the view can be of the traditional adversary divorce attorney toward negotiating divorce settlements.

This is not to say taking such a view is anyone’s personal fault; rather, it is how most attorneys were taught and it is the message they continually receive in the adversary law practice culture.  In effect, and usually without exception, the view is this: I represent a client. This client has a point of view. It is my duty to take my client’s point of view. My point of view is right. The other party’s point of view is wrong. I cannot take into consideration the other party’s point of view. I may give lip service but will not actually listen to the other party. I will do whatever I can to win so my point of view prevails. Unfortunately, this way of proceeding, especially in an area of the law that involves families, can be of great cost to everyone; certainly to the clients and oftentimes to the attorneys as well.

Life is not a zero sum game. Do we ever actually find a situation where one party holds every virtue, where one party is always right, where one party knows best and where one party’s point of view must prevail on all issues lest the “good” be lost and the “bad” prevail? Yet, as close-minded as this point of view may be, at least to one degree or another it is the one underlying the negotiating approach of many traditional adversary divorce attorneys. And, although it is often covered over with a stance of seeming reasonableness, the message is clear: I will be reasonable as long as my point of view prevails.

When we look beyond the surface of life, it is not hard to see that what is there is anything but black or white, right or wrong, this or that. It is never one thing only. And, if we may use the word violence in its general sense, there is violence in taking one point of view to the exclusion of all others. The violence is that in taking such a view what is served is obliterating all other points of view. And with that obliteration can come the trampling on the sensibilities and feelings and values of those with whom we live and work and interact.

As every eyes wide open divorce attorney must see, this unfortunate dynamic has special importance in the field of family law, domestic relations practice and divorce settlements. The ones we may seek to “overcome” and over whom we wish to prevail are often the mothers, fathers, children and extended close ones who make up our families, even if those families are in the transition of divorce or separation. While it is at odds with the underlying ethic of the legal culture , the quite literal reality of our lives is that we are all in this together. Such reality calls on the divorce attorney to be informed by this ethic. The question each client might consider asking in entering a legal divorce process and the path leads to final settlement is  – “In the divorce process, do I want to be the one who serves to support healing the rifts that would break our newly transitioning family apart, and do I want a lawyer who will share this ethic?”

The Subject Matter of Divorce Mediation

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Every case is different than the next, having its’ own unique character and issues. And, while the differences in the modalities for reaching settlement are varied, and in some cases having a significantly different impact on the clients – such as Divorce Mediation contrasted with Divorce Litigation – the subject matter of all modalities is the same. This is a brief overview of the kinds of issues that need to be addressed in each case, if they are relevant to the particular situation. The list is not complete but it provides a good sense of what is to be addressed, and it falls under four general categories: Property and Debt Division; Parenting Arrangements for Minor Children; Child Support for Minor Children; and Spousal Maintenance (alimony). Thus, all final divorce settlement processes need to address these issues.

Property and Debt Division

-Real estate

-Ownership of business

-Household goods

-Stocks, bonds and other securities.

-checking and savings accounts

-Vehicles

-Life insurance policies

-Income tax issues

-Attorney or Mediation fees

-Retirement type accounts

Parenting Arrangements for Minor Children

-Residential arrangements and time-sharing

-Pick-up and drop-off

-Decision-making for significant issues

-Child care arrangements

-Extra-curricular activities

-Tutoring

Child Support for Minor Children

-Arizona Child Support Guidelines

-Wage assignment

-Medical insurance for minor children

-Periodic exchange of income information related to child support

-Post-secondary education tuition for children.

Spousal Maintenance

-Periodic payments or lump sum

-Cash settlement

-Tax deductible or not

-Duration of payments

-Modifiable or non-modifiable

Advising Clients About Settlement Process Options

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People initiating a divorce or legal separation come to divorce attorneys with questions; paramount among these is “How do we get started.” This usually means something along the lines of how do we reach a final settlement or how do we go about the divorce process. The attorney can provide a valuable service by refraining from a launch into what the client “can get” or what the client should “go after.” Many attorneys are prone to take this kind of aggressive approach both at the expense of providing complete  information to the client and at the further expense of making the “opposing” spouse the adversary.  This is not only a disservice to all involved, it is also not even the first issue that needs to be addressed.

How people go through a Tucson divorce or legal separation can significantly impact their well being for some time to come even after the actual divorce is finished. Often the settlement process is at least as important as the final outcome. The identical outcome can leave either a lasting bad taste or provide a peaceful transition from the marriage. Whether it is one or the other often depends on the approach used in reaching the final outcome..

There are essentially three different settlement approaches to a legal divorce or legal separation. The first is the traditional adversary approach, wherein each party retains their own litigation attorneys and the customary approach of filing a plethora of discovery documents to obtain information from the other side ensues. The contest can escalate from there. This is not only a cumbersome approach it is time consuming and costly. Additionally, the attorneys often work at arm’s length from each other rather than cooperatively trying to reach resolution of their clients’ divorce related issues. And, the prospect of court litigation always looms. To be sure, there may be some cases and clients that warrant this approach, and for those clients it is valuable and worthwhile, however costly and difficult.

Most clients, however, would benefit from one of two more cooperative approaches to resolving legal divorce issues, especially when there is to be an on-going relationship because of mutual children or for other reasons. These two cooperative approaches are not often explained to clients by their attorneys, especially if the attorney’s law practice does not utilize them (who wants to give away business).

Mediation is the first cooperative approach. Here, the parties meet with a neutral mediator/attorney who represents neither party but whose allegiance is to a fair and balance settlement. Fair and balanced here is in the eyes of the parties and the mediator. This approach, which uses only one professional, is the most straightforward and least costly, since the parties are working directly with each other. Using the services of an experienced mediator can be ideal for many parties.

For clients who want to use a cooperative approach to settlement but are reluctant to engage in the settlement process without their own attorney, a Collaborative Law approach is best suited. In the Collaborative Law approach each party is represented by their own attorney, however, the parties and their attorneys commit in writing at the outset of the case to refrain from court intervention. “I’ll see you in court” is not a possibility in Collaborative Law because everyone has agreed there will be an out of court settlement.  Collaborative Law uses many mediation-like strategies for cooperative engagement, and discussions and decisions are made in meetings with the parties and their attorneys.

It behooves the client new to the legal divorce process to ask their attorney to explain all the approaches to resolving their divorce related issues so they might more intelligently know which is the right one for them.

 

© Copyright - Peter D Axelrod