August 2010 Archives

August 16, 2010

Mediation or Collaborative Divorce - What is the right process for New Yorkers?

Most of the clients who come to my office to discuss their divorce know that they do not want to go to court. Not only is it expensive and time consuming, but they do not want a judge to make personal decisions for them and their family. So, the clients know that they want to stay out of court, but they're usually unsure about what the best alternative option is. Should they mediate or collaborate? When a client asks me this question I first explain the basics about each process.

In mediation my client and his or her spouse will be meeting with a mediator who will lead them through the issues that they need to resolve in order to come to an agreement. The client may (and in my opinion, they should) meet with an attorney before, during and/or after the mediation to make sure he or she understands her rights and obligations and that the agreement that is going to be signed is properly drafted, but the client will not have an attorney by his or her side during the actual negotiations. If the client chooses a collaborative divorce the spouses will each be represented by an attorney who is trained in mediation and collaborative divorce. But all negotiations will take place in face to face meetings that include the attorneys, the clients, and possibly divorce coaches and neutral financial professionals.

After discussing the difference in the processes, we'll discuss which one makes the most sense for this particular client. Mediation may be the best choice if the issues are relatively simple. But what if they're not? What if there are complicated financial issues to resolve? Mediation can still work very well if the client and her spouse are able to communicate relatively well and if there is a basic level of consideration and respect between them. Mediation might not be the best process however if one of the spouses knows much less about the finances than the other, or if there is some other sort of power imbalance between them. In that case, collaborative divorce could be a better alternative because the less powerful spouse will have an attorney by his or her side to explain the law and advocate for their interests and goals. Collaborative divorce will also make more sense if there are complicated emotional issues or differing goals with regard to child custody and parenting schedules. In that case, collaboratively trained mental health professionals in the form of divorce coaches and child specialists can be retained to help navigate these difficult issues.

After discussing these options with clients, they usually have a good idea about which process makes the most sense for them. The next step then is to help the clients figure out how to speak with their spouses about it. That will be the subject of a future post.

August 15, 2010

New York Finally Enacts No-Fault Divorce

Governor David Patterson signed New York's no-fault divorce bill into law yesterday, bringing New York in line with the 49 other states that already have some version of the law. So what exactly does this bill do? It amends Section 170 of New York's Domestic Relations Law, which sets forth the grounds for divorce, and will now permit couples to divorce if one spouse swears under oath that the relationship between husband and wife has broken down irretrievably for a period of at least six months. Here's a link to the bill that was signed.

Claiming that there has been an irretrievable breakdown in the marriage will not automatically result in divorce. That won't happen until the couple has resolved the economic and child-related issues between them. But it will end one spouse's ability to prevent divorce by forcing the other to prove fault such as cruelty, abandonment or adultery, thereby trapping a spouse in the marriage until she or he gives into the economic or parenting demands of the other. And it will eliminate the need for couples who agree to divorce to allege that one of them was to blame.

Every divorce lawyer I know has been in favor of no-fault divorce. Not only because it will help their clients emotionally and financially, but also because it will eliminate the need for the attorneys to falsely certify their clients affidavits in which they "admit" such wrongdoing. Additionally, judges will no longer need to pretend they don't know that false evidence is being presented when two parties, who clearly agree that they want a divorce, come before them and present their divorce papers for signature. This sensible law was long overdue.

August 12, 2010

Why I Practice Collaborative Law

On August 11, 2010, I was a presenter at a CLE entitled "Why Would An Attorney Want to Practice Collaborative Law?", which was presented by the New York Association of Collaborative Professionals and sponsored by Moses & Singer, LLP. The matrimonial litigators in attendance asked many good questions about the process itself and about the kinds of cases that are handled collaboratively. After the program ended, I continued to think about all the reasons that I personally choose to practice collaborative law and keep my clients and their families out of court whenever possible. There are many articles and blog posts touting the benefits to clients, but not necessarily the benefits that the attorneys receive. So I thought I'd share a few of mine:

1. I'm Helping My Clients Move Forward With Their Lives - Divorce is never easy. The emotions that come up and financial decisions that need to be resolved are difficult. But by removing the time, stress and expense of preparing a case for trial, I can better help my clients create a better future rather than rehash the past.

2. I'm Involved In Good Faith Negotiations Rather Than Game Playing - Collaborative negotiations are taking place in good faith and I can trust that my collaborative colleague and I have the same goal - to find a solution that works for everyone. Win/Lose is not acceptable. Any agreement we reach must be a Win/Win.

3. I Can Be More Creative - By staying out of court, my collaborative colleague and I are better able to help our clients creatively structure an agreement that meets both parties' particular interests and goals.

4. I Have Better Relationships With My Clients - My collaborative clients know that I'm working to help them meet their and their spouse's interests and goals and they see that their spouse's attorney is doing the same thing. This team approach is more satisfying than an "us versus them" approach. And this satisfaction translates to more positive attorney/client relationship.