“A kinder, gentler divorce”
This is the first thought that comes to mind when considering collaborative law as an alternative to litigation. Collaborative law is an excellent alternative for many couples. The parties agree and sign a contract that they will not go to court during the collaborative process.
The parties hire collaboratively trained attorneys. The attorneys also sign the contract that they will remove themselves from the case if either party declines to continue with the collaborative process and proceed with litigation.
Therapists may be involved as Divorce Coaches helping the parties through the divorce process. There could be one or two divorce coaches if the parties decide to share a coach or have individual coaches.
A Child Specialist is a therapist who would work specifically with the child or children of the parties and help them through the process. Also, the Child Specialist can help the parties create a parenting plan that works for the entire family.
A Financial Neutral would be a Certified Public Accountant, Financial Planner or Business Evaluator. A Financial Neutral would assist the couple with financial issues, such as alimony, child support, marital home, debts and expenses and/or a business evaluation. The Financial Neutral helps both parties by guiding them through the difficult process of having income and expenses in one household move into two households.
The parties work with the entire collaborative group to come to an amicable resolution of their issues. The parties maintain control of their divorce process rather than putting their lives in the hands of a Judge who will make decisions about their lives.
My dream would be for family mediation to be the primary dispute resolution for couples. Wouldn’t it be wonderful for parties going through a divorce or custody dispute to think of mediation first? They would be in control of their future as opposed to giving that control over to a Judge to determine the family’s future.
Mediation offers clients:
Mediation provides values of peacemaking.
I became a mediator in 2002. It is a significant part of my practice.
The quicker people resolve their dispute the quicker they can get on with their lives peacefully.
Mediation and Collaborative Law
Primary Dispute Resolution or Alternative Dispute Resolution?
It is my belief that mediation or collaborative law should be the first option for couples in a family law dispute.
Litigation (Courts) should be the last resort. In most cases, litigation is not necessary. The parties only have contact with a Family Law Magistrate or a Judge to give uncontested testimony pursuant to an agreement, if the parties reach agreement in mediation or through the collaborative process.
My practice has included mediation services since 2002. I became a mediator because of my family law litigation practice since 1988. Parties are better served coming to an agreement together rather than losing that control and letting a Judge in a black robe who does not know the family make a decision about their future after a “snapshot” of their lives in restricted Court testimony.
Pre-Nuptial or No-Nuptials Agreements by Mediation
These agreements should not be adversarial and need not be. Parties can sit down together and discuss their future and their expectations. Conversations regarding assets and finances should occur prior to a marriage or co-habitation. Mediation can help couples come to a common understanding of how their finances will be handled.
Prenuptial Agreements are helpful if parties have pre-marital assets or older couples who may have children from prior relationships.
Parties often want to protect separate property. Prenuptial Agreements can address assets such as real property, personal property or retirements. The Prenuptial Agreement can address future potential alimony.
Tara Parker-Pope, a New York Times journalist, observed that couples who talk about and plan their finances from the first date to moving in together will enhance the quality of their relationship.
People may believe that Prenuptial Agreements contemplate divorce and parties do not want to go into marriage with that thought. The high rate of divorce is a reality and fights over finances is the number one reason for divorce. Why not address the elephant in the room?
Open communication is a key to a good and lasting relationship. A Prenuptial Agreement is an opportunity for couples to enter the marriage on equal footing with equal knowledge.
It allows an opportunity to make sure both sides are “OK”. Plus, if there are step-children, one would not want his or her relationship with step-children to be about money. A Prenuptial Agreement will allow the couple to better know how their finances will be managed and how they will be handled in the future.
Studies have shown the more a couple spends on the ring and the wedding the more likely a divorce will occur. Wouldn’t a financial discussion be beneficial?
The most wonderful reason to be in a courtroom is adoption. Whether the child being adopted is a newborn baby from this country or another, a relative, an adult, a step-child or a foster child, adoptions are pleasant and rewarding. Adoptions are the most enjoyable part of my practice.
Although I prefer to think it is not my “go to” skill for clients, it is certainly my longest used skill as I have been a family law litigator since 1988 and I was only a litigator until 2002 when I became a mediator.
I state this because my preference for families would be “primary dispute resolution” such as mediation or collaborative law which are skills I bring to my practice.
When primary dispute resolution is unsuccessful or inappropriate, I work with clients through the Court system.
The Court system can be arduous for anyone dealing with it. It is especially difficult when dealing with the emotions that are naturally there when dealing with separation and divorce.
Parent Coordination is a helpful way for high conflict families to learn better communication skills to assist them when parenting their children.
The Parent Coordinator meets with the parties and educates and guides the parties to better decision making for the children.
The focus in Parent Coordination is the best interests of the children. The Parent Coordinator could make some minor decisions based on the parties’ agreement.
I find this work very rewarding. I help vulnerable adults who are allegedly disabled. I represent Petitioners filing for guardianship for a family member or I represent a Respondent in the case. Often, I am Court appointed to represent alleged disabled people. My mediation and litigation skills come in very handy in these types of cases.
Also, Judges appoint me to be Guardian of the Property for a disabled person after a guardianship has been determined appropriate. In this role, I pay their bills, possibly sell assets and maintain their financial assets. This responsibility may include applying for Medical Assistance
Wills, Powers of Attorney and Advance Medical Directives
Everyone should plan documents that will assist themselves and their family members at death or a traumatic event.
Advance Medical Directives will assist family members at a time a person is near death. Obviously, this would be a difficult, trying time for the family. An Advance Medical Directive prepared by the person in advance allows the family to know they are following the wishes of the person as opposed to trying to determine the person’s desires for end of life options.
Power of Attorney documents that are only in effect at the time of disability are similar to an insurance policy. Hopefully, it will not be needed however, if it is necessary, the person will have saved thousands if not tens of thousands of dollars avoiding a guardianship proceeding. A client will designate a person to act as attorney in fact and an alternate if the first is unwilling or unable to act. The attorney in fact essentially “stands in the shoes” of the Declarant once the Power of Attorney is activated. The Power of Attorney will allow a smooth transition to have the attorney in fact handle the affairs of the Declarant when the Declarant is mentally incompetent and unable to handle his or her affairs.
A Will offers a person an opportunity to designate a Personal Representative (also known as Executor) to handle the estate of the Testator. A Testator can leave specific property to family, friends or charities as he or she deem appropriate. He or she can determine what funeral arrangements would be appropriate. A Will is a better way to determine a distribution of one’s assets rather than someone dying intestate (without a Will).
Domestic Violence Protective Orders
Since the start of my private practice in 1988, I have represented clients in domestic violence cases. Cases may be resolved by agreement or after a hearing.
Depending on the relationship of the parties, a Protective Order or Peace Order may be granted. It is advisable for both parties to be represented, the Petitioner and the Respondent.
Protective Orders can last up to 1 to 2 years. Protective Orders can establish a “stay away” Order, temporary custody of children, visitation (supervised or unsupervised) and family maintenance (similar to alimony and child support).
Association of Family and Conciliation Courts
Collaborative Council of Western Maryland
International Academy of Collaborative Professionals
Maryland Collaborative Practice Council (statewide group)