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Archive for May, 2011

Divorce Alternatives – The Case for Litigated Divorce

posted by admin 10:00 AM
Wednesday, May 18, 2011

Over the past few weeks, I’ve been discussing divorce alternatives.  Both collaborative divorce and mediation have their place and have been successful for many divorcing couples.  However, most divorcing couples today still choose the “traditional” model – litigated divorce.

Since more than 95% of divorce cases reach an out-of-court settlement agreement, I will not focus on how the litigation process actually works, but rather, on why I think this is the preferred method for most cases.

Contrary to popular belief, divorce usually does not involve two people mutually agreeing to end their marriage. In fact, 80% of the time, the decision to divorce is unilateral, meaning one party wants the divorce and the other does not. That, by its very nature, creates an adversarial situation right from the start. This fact alone will often disqualify mediation and collaborative divorce, since both methods rely on the full cooperation of both parties and the voluntary disclosure of all financial information.

And it is for that reason that I prefer the traditional method for the vast majority of divorces (mediation and collaborative tend to work quite well for the 20% of cases where the decision to divorce is more mutual). Since we are already starting out with an adversarial and highly emotionally charged situation the chances are very high that collaboration or mediation might fail. Why take the risk of going those routes when the chances are very high that they might fail with the resultant waste of time and money?

The most important and most difficult parts of any divorce are coming to an agreement on child custody, division of assets and liabilities and alimony payments (how much and for how long). Although you want your attorney to be a highly skilled negotiator, you don’t want someone who is overly combative, ready to fight over anything and everything. That will not only prolong the pain and substantially increase your legal fees, it will also be emotionally detrimental to everyone involved, especially the children.

As I mentioned in my last blog post, most divorce attorneys, at least those that we recommend, will always strive to come to a reasonable settlement with the other party. But if they can’t come to a reasonable settlement or if the other party is completely unreasonable then, unfortunately, going to court, or threatening to do so, might be the only way to resolve these issues.

If you have tried everything else and you do end up in court, things can get really nasty and hostile. Up until this point both attorneys were “negotiators,” trying to get the parties to compromise and come to some reasonable resolution. But once in court, the role of each attorney changes. Negotiations and compromise move to the back burner. Their job now is to “win” and get the best possible outcome for their client.

And don’t forget, at the end of the day, it’s a judge who knows very little about you and your family that will make the final decisions about your children, your property, your money and how you live your life. That’s a very big risk for both parties to take and that’s also why the threat of going to court is usually such a good deterrent.

The bottom line is that every family, and every divorce, is different. Obviously, if you are able to work with your husband to make decisions and both of you are honest and reasonable, then mediation or the collaborative method may be best. But, if you have doubts, it is good to be ready with “Plan B” which would be the litigated divorce.

I hope this series on the different types of divorce has been helpful for you. Remember, in all divorces, no matter how they are handled, there are financial decisions to be made that will determine how the rest of your financial life will play out. It is highly recommended that you consult with one of our Divorce Financial Strategists™ as early as possible to ensure that the right decisions are being made.

All content on this site/blog is for informational purposes only, and does not constitute legal advice.
If you require legal advice, retain a lawyer licensed in your jurisdiction. The opinions expressed are solely those
of the author, who is not an attorney.
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Divorce Alternative – Collaborative Divorce

posted by admin 10:51 AM
Wednesday, May 11, 2011

Last week I discussed two divorce alternatives – DIY divorce and mediation. As you may have surmised, I have reservations about both of these options.  Especially about the DIY divorce!  But mediation does have its place as does another type of divorce alternative that is gaining in popularity – Collaborative Divorce.

Collaborative Divorce

Simply put, collaborative divorce occurs when a couple agrees to work out a divorce settlement without going to court.

During a collaborative divorce both you and your husband will each hire an attorney who has been trained in the collaborative divorce process. The role of the attorneys in a collaborative divorce is quite different than in a traditional divorce. Each attorney advises and assists their client in negotiating a settlement agreement. You will meet with your attorney separately and you and your attorney will also meet with your husband and his attorney. The collaborative process may also involve other neutral professionals such as a divorce financial planner that will help both of you work through your financial issues and a coach or therapist who can help guide both of you through child custody and other emotionally charged issues.

In the collaborative process, you and your husband as well as your respective attorneys, must sign an agreement that requires that both attorneys withdraw from the case if a settlement is not reached and/or if litigation is threatened.  If this happens, both you and your husband must start all over again and find new attorneys. Neither party can use the same attorneys again!

Even if the collaborative process is successful, you will usually have to appear in family court so a judge can sign the agreement. But the legal process can be much quicker and less expensive than traditional litigation if the collaborative process works.

However, I have found that the collaborative method often doesn’t work well in complicated situations or when there are significant assets because, just like in mediation, all financial information (income, assets and liabilities) is disclosed voluntarily. Often the husband controls the “purse strings” and the wife is generally unaware of the details of their financial situation. When these circumstances exist, the door is often wide open for the husband to hide assets. Many high net worth divorces involve businesses and professional practices where it is relatively easy to hide assets and income. Additionally, the issue of valuation can be quite contentious.

Similar to Mediation, as a general rule, Collaborative should not be used if:

- You suspect your husband is hiding assets/income
- Your husband is dominating and you have trouble speaking up or you’re afraid to
- There is a history or threat of domestic violence (physical and/or mental) towards you and/or your children
- There is a history of drug/alcohol addiction

Because of these factors, I usually advise my clients to work with an attorney that can go to court and litigate for them if it becomes necessary. The reason is, if the collaborative process
breaks down, you don’t want to start all over again from the very beginning with a new attorney and pay new retainer fees.  That is a huge waste of money.

Most divorce attorneys, at least those that we recommend, will always strive to come to a reasonable settlement with the other party. But if they can’t or if the other party is completely unreasonable then, unfortunately, going to court might be the only way to resolve these issues.

All content on this site/blog is for informational purposes only,
and does not constitute legal advice. If you require legal advice, retain
a lawyer licensed in your jurisdiction. The opinions expressed are solely
those of the author, who is not an attorney.
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Divorce Alternatives

posted by admin 10:00 AM
Wednesday, May 4, 2011

No two divorces are the same. Each divorce has its own twists and turns that makes it unique. However, there are several methods that a couple can choose to process the dissolution of their marriage – Do-It-Yourself (DIY), Mediation, Collaborative, and Litigation.

Today’s blog post will discuss the Do-It-Yourself (DIY) and Mediation methods.

Do-It-Yourself (DIY)

In general, the best advice I can give you about DIY, is DON’T DO IT!

Divorce is legally and financially very complicated. Mistakes can easily be made, many of them irreversible. The only scenario that I could envision a DIY divorce making any possible sense, might be in a case where the couple have been married for only 2 or 3 years, have no children, have little or no assets/debts to be divided (retirement funds such as pension plans and 401Ks are complicated to divide and should never be attempted by yourself), have comparable incomes and neither party would be paying alimony to the other. In that case, a DIY divorce could be accomplished quite quickly and inexpensively. Nevertheless, I would still highly recommend that each party have their own separate attorney review the final documents.

Mediation

In divorce mediation, a divorcing couple would work with a neutral mediator that will help them come to an agreement on all aspects of their divorce. The mediator may or may not be a lawyer, but either way they should be extremely well-versed in divorce and family law. It is critical for the mediator to be neutral and not advocate for either party. Both parties still need to consult with their own, individual attorneys during the mediation and prior to signing the divorce agreement. Here are a few pros and cons to consider before deciding if mediation will work for you:

Pros:
• May result in a better long-term relationship with your ex-husband since you will not “fight” in court.
• May be easier on the children since the divorce proceedings may be more peaceful.
• Agreements may be reached sooner.
• The cost of divorce may be less.
• You stay in control of your divorce because you will make decisions and not the court.
• Mediation is private whereas a divorce that goes through the court is public.

Cons:
• The time and money spent in mediation could be wasted if negotiations fail and the couple needs to start all over.
• If the mediator is not experienced or biased towards one of the spouses, the mediation agreement may be incomplete or unduly favorable to one of the spouses.
• There may be concerns about the enforceability of the mediation agreement, if it’s not well-drafted or too lopsided.
• If there is an issue of law it will still need to be ruled upon by the court.
• All financial information is voluntarily disclosed. There is no subpoena of records, so if your husband is hiding assets/income you may never know about it. This is a particular issue if your husband owns a business because it is easier to hide assets and income through the company.
• If one spouse is dominating and the other is submissive the final settlement may not be fair.
• May increase negative behavior of a spouse with a propensity for physical/mental abuse.
• Can lead to increased problems if the parties suffer from of drugs/alcohol abuse.

As a general rule, Mediation should not be used if a) you suspect your husband is hiding assets/income, b) your husband is dominating and you have trouble speaking up or you’re afraid to, c) there is a history or threat of domestic violence (physical and/or mental) towards you and/or your children and d) there is a history of drug/alcohol addiction.

As you can see there are several issues to consider whether a DIY or mediated divorce might work for you. Next week, I’ll be discussing the Collaborative method. Collaborative law is a relatively new concept, but it is one that is becoming more and more mainstream. Stay tuned for that blog post next week!

All content on this site/blog is for informational purposes only, 
and does not constitute legal advice. If you require legal advice, retain 
a lawyer licensed in your jurisdiction. The opinions expressed are solely 
those of the author, who is not an attorney.
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