The divorce process is always difficult.
You need to use the process as a last resort.
A new generation of divorcers, their lawyers, and the
court system have embraced alternate means of running around the
system. The emphasis should be always on serving the people over
the process.
It is a dirty little secret among divorce lawyers that within a
relatively short period of time the range of reasonable
settlement options for your entire divorce become clear. As I
write, I grimace at the times I have tried a case after
identifying the likely results months, if not years, prior to
the final hearing.
The Program
Offering
divorcers
an option to aggressive immersion into the
divorce litigation process is a welcome relief to most. The
usual way is to file a complaint or petition for divorce. The
complaint receives a docket number from the court and is served
upon the other spouse via a sheriff or similar officer. Motions
or petitions for support usually follow. Court appearances for
oral argument, case management, court-ordered mediation, and
pre-trial conferences are likewise upcoming events. Scheduling
notices are generated by the court without regard to the reality
of your life, your spouse’s life, or your lawyer’s schedule.
This method is not without merit. For example, many states
utilize the date for the filing of the divorce as the date upon
which marital assets and debts cease to accumulate. Abusive
situations lend themselves to immediate court action. Financial
crises will necessitate court orders for their resolution. Most
importantly, issues involving at-risk children must be dealt
with in court. A record must be established and the interests of
the children must be placed as a higher priority than even the
financial pain that may be associated with putting children
first. Absent these exigent circumstances, rushing into court
will not serve your long-term interests.
The Self-determination Program: Exploring Collaborative Law
You decide on all the details of your marriage day — the date,
the place, the guests, the reception, and the honeymoon — all as
a send-off to the future success of your marriage. When marriage
fails, there is no reason to turn over responsibility for the
details to anyone else. Law Advisors
can help you control your post-divorce life, but
it is up to you to make the decisions.
You can avoid jumping into court by picking the advisors, (i.e.,
lawyers and support team) who want to resolve your case on your
terms. You want to start the process by embracing the fact that
99% of all divorce cases are resolved via settlement rather than
trial.
Preparing your case for settlement will lead to the most
expeditious and efficient route to that settlement. Preparing
for trial will lead to the wasteful expenditure of financial
resources, emotional resources, and future goodwill. How will
your spouse feel if the sheriff shows up at home or work and
serves him or her papers?
Your spouse probably knows that the
marriage is in trouble, but do you have to choose such an
aggressive route to deliver that message? No.
A polite letter from a lawyer can open negotiations. Your lawyer
will encourage your spouse to immediately secure counsel.
Initial financial disclosure is discussed and a meeting is
scheduled to size-up the opposing lawyer, your spouse, and even
your own lawyer. Be prepared to put your cards on the table —
not necessarily your idea of a final resolution, but an
understanding of concepts.
Many times, issues like where the children will live
and who will enjoy what level of parenting time can be resolved
at a face-to-face meeting. On paper, the non-custodial parent
may refuse to “sign away the children.” At a face-to-face
meeting, it may be much more difficult for one spouse to accuse
the other of not being a good parent. Once this issue is
addressed, it ought not be revisited on the whim of either
spouse.
A broad agreement of what assets and debts exist can be reached
at such a meeting. How to maintain current bills and necessaries
will be discussed. An agreement not to charge on any joint
credit cards and an exchange of debt information carried in one
spouse’s name can also be completed here forming a debt
baseline.
If you are making progress and narrowing issues, you should feel
free to discuss those issues with your spouse. If discussion
increases the scope of the disputes, however, save it for your
lawyer and the next meeting.
In between your first meeting and
the confirming letter, more information is gathered. Another
meeting is conducted for the purpose of narrowing issues. When
you get to an impasse where resolution cannot be achieved, it is
time to resort to other means. Different approaches by you and
your lawyer may also involve the retention of experts such as
real estate appraisers, employability evaluators, forensic
accountants, family counselors, or custody and parenting time
mediators or evaluators.
Every step should be a step forward.
Every step provides you with an opportunity to change course. No
appointments or court- ordered events are scheduled without your
participation and agreement.
By binding written agreements, court action is ruled out only
made available as a last resort. When you go to court, you turn
over control and responsibility for your future to a stranger
(namely a judge), duty-bound to follow statutes, case law
precedents, court rules, and rules of evidence all the while
constrained by his own life experiences. There are instances
where one spouse or even both spouses are so belligerent they
are unable to embrace reality and face their own futures.
Partially trying a case on one or two
issues may trigger the instinct to do the right thing and
resolve your case on your terms. Courts may be very reluctant to
offer that service.
If you have embraced self-determination,
you ought to be reluctant to off-load any of the responsibility
onto others.
However, if you are unable to reach an accord, you
can voluntarily pick a mediator, arbitrator, or private judge
(typically a retired judge or highly regarded divorce lawyer) to
make a decision on a piece of the case. The scope of work must
be tailored and agreed to by you, your spouse, and both lawyers.
If you agree on a truly
collaborative process, you also agree — in writing — that your lawyer cannot
represent you in any contested court matter.
If you must litigate in court, you need to fire your lawyer and
get litigation counsel. This is the essence of true
collaborative law.
What If We Are Stuck?
In addition to being a peaceful process, collaborative law is
the ultimate in self- determination. If you are stuck on an
issue, such as valuation of a closely held business, there are
options. For example, retain a joint forensic accountant to
prepare a value of the business. Direct that accountant not to
produce a final report but to produce rough estimates of each
divorcer’s cash flow and a valuation range of the business and
real estate.
Making the Commitment
The collaborative law model is no longer new. Virtually every
state and big city has a collaborative law association. Your
lawyer must make the commitment to the collaborative law process
in order for you to enjoy the benefit. Essentially, lawyers band
together in loose associations for the purpose of creating a
referral network for other collaborative-law friendly lawyers,
accountants, custody experts, real estate appraisers, etc. All
participants agree that neither counsel nor the experts, all of
whom will be jointly retained, may go to court. All parties are
therefore committed to working toward a resolution, as opposed
to sizing one another up and preparing to destroy the opposing
party at trial.
The collaborative law model changes the
language from the adversary system to a cooperative process.
Your case starts off on the settlement track and stays on the
settlement track. You are not required to or asked to ignore law
or even, as a last resort, retain private decision-makers for
narrow issues. You only avoid the disaster of court.
Time
Time is your most precious asset. You have a finite quantity of
time and you never know how much of it you have left.
In states where it takes three years
to get a divorce trial date, however, this method will prove far
more time efficient. Elapsed time from the day you hire your
lawyer and announce to your spouse definitively that the
marriage is over to the resolution of your entire case may take
anywhere from 6 to 24 months. (Certainly, cases have taken
longer and have been resolved in less time. This is just a
typical.)
With this model, the use of your time working in
concert with your lawyer and others and meeting with your spouse
and the opposing lawyer will be limited to productive time on
your calendar.
Disputes about time management can be a legitimate discussion
point at your settlement meetings. The settlement meetings can
be conducted in person, on the telephone, with you in your
lawyer’s office and the other spouse in the opposing lawyer’s
office, or any combination you embrace.
Every divorce settlement results in a final agreement. Along the
way, you must enter into many agreements. If you do not embrace
the small agreements, certain results will be imposed upon you.
Avoid Court By Ruling It Out
The court dissolves the marriage — rips up the marriage license.
The rest of your divorce is up to you. Why leave the important
decision-making to a court, or a stranger in black robes?
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