Articles Posted in Collaborative Law

One of the weaknesses of litigated divorce is that it encourages rigid thinking that stands in the way of compromise.

Choosing your battles wisely is an important strategy in all areas of life, including if you are in the process of divorce. Unfortunately, traditional divorce attorneys often neglect to give their clients this advice, encouraging them to fight for everything they say they want, regardless of how impractical, impossible or destructive it may be.  And when the other spouse inevitably takes opposite positions on those same issues, there’s nowhere to go but to the courthouse where both parties will be subjected to the slow-moving and very public litigation process.

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Before marriage was made available to every American, same-sex couples struggled with issues that married couples could take for granted – like hospital visitation rights, after-death services and inheritance rights.

In order to achieve that same peace of mind that married couples enjoy, gays and lesbians came up with some brilliant solutions to bridge the dire straits in which they found themselves. In New York City, the government began a Domestic Partnership registry which granted hospital visitation, health insurance coverage and the inheritance of rent-controlled apartments, among other things. But because those provisions only applied to government-run agencies, lesbians and gays took matters into their own hands to protect themselves and their partners in the private sector through the use of wills, healthcare proxies and burial instructions. Continue reading

A high-net-worth couple going through a divorce can benefit greatly by staying out of court.

Couples with considerable assets (which I will define here as more than $5 million) are often lead to believe that their divorce will be a “no holds barred,” brutal, lengthy process with astronomical legal bills and complicated offers and counter-offers. Because of this belief, many high-net-worth couples assume that mediation or the collaborative law process will not work for them.

They couldn’t be more mistaken. In my experience, the opposite is true; high-net-worth families have more to gain by keeping things civil and private. Unfortunately, many attorneys who practice litigation harbor a killer instinct that grows along with their clients’ assets, and they see a litigated divorce as the only way to satisfy that instinct.

I have compiled a short list of only some of the advantages that high-net-worth couples receive when they keep their divorces out of court.

  • Specialized support: High-net-worth divorces can be complicated, but they don’t have to be high-conflict. The best results come from a team approach. For instance, in the collaborative law process specialized professionals such as divorce coaches and financial neutrals (who come from a Certified Divorce Financial Analysts (CDFA) or CPA background) are part of the team. These professionals are available to help couples who are using the mediation process as well.

Divorce coaches help spouses to decrease the emotional triggers that are prevalent in most divorces and can overwhelm and hijack the negotiation process if not properly tended to. For example, they can help in situations where both spouses have strong voices and may be highly competitive with each other, as well as when there is a large power imbalance between the spouses with one having a very strong voice and the other having almost none.

Financial neutrals have expertise in understanding some of the more complicated assets that high-net-worth couples have on their balance sheets such as private equity investments, stock options, art collections, and privately owned businesses, as well as the more complicated tax implications of divorce.

  • Flexibility and privacy: Keeping your divorce “under the radar” and out of court means that you will have more opportunities to come up with creative solutions; this is something that a judge could never provide. Also, negotiations will be private so that information about your family and your assets will never be disclosed in an open courtroom.
  • Controlling one’s destiny: People with high net worth are accustomed to calling the shots in life. If you and your spouse cannot reach a voluntary agreement, a judge will make decisions for you. If you don’t like people making decisions for you in general, why give that up in a divorce?

Choosing mediation or collaborative law makes more sense financially. If mediation or collaborative law is the right process for you, the cost savings over litigation will be substantial.

If you would like to learn more about the differences between mediation and collaborative law versus litigation, I have recently put together a guide titled Why Court Should Be the Last Resort for Your Divorce. To obtain a copy, or to arrange a consultation, contact me today.

I was recently sitting at my desk when I received a text message from a phone number I didn’t recognize. In rapid succession I received the following missives:

  • “I don’t respect people who hit children.”
  • “You belong in jail for the rest of your life!”
  • “Where you can hit a woman!”
  • “LMAO, who’s not on parole!”
  • “How pathetic what a cheater you are too.”

This person, who was obviously in distress around a family law matter and possibly even dealing with domestic violence, was exhibiting a habit I see often with my clients: Talking to a spouse or partner directly becomes so emotionally difficult, they start using text messages as their main source of communication. While it can feel easier or safer to express difficult feelings by text or email, separating and divorcing couples should use these methods of communication only if they are careful about what they are writing before hitting the send button.

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Something I have been seeing more and more in my practice as a mediator and collaborative attorney are couples living apart for long periods of time, without being legally separated.

For various reasons, many married couples decide to separate for years without having any legal agreements in place. They don’t realize until years later when one of them is seeking a divorce that the legal, financial and emotional issues caused by the years of separation can become very difficult to resolve.

Below are just some of the pitfalls that people encounter when they separate unofficially:

  • When two spouses start living separately, the clock starts ticking on a new status-quo. Eventually, the lifestyle maintained by the lower-earning spouse during the separation can become the standard for the amount of spousal support that is required in the future.
  • Non-legal separations do not necessarily end the legal financial union between spouses. That means all the money earned – or debts being incurred – by either spouse may still be considered part of the shared marital estate.
  • The higher earning spouse is not necessarily going to get credit under the law for the amount of support they’ve been providing.
  • Once a couple moves into separate residences, communication between them can break down even more than it was while they were living together, which makes negotiating a separation agreement even harder than it has to be.
  • If either spouse starts a new relationship and spends money on the new partner, it can be considered a “waste of marital assets,” which can result in complicated requests for repayment (financially as well as emotionally).

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The feeling of or ability to be in control can be an elusive concept to many, and the lack of control can be a source of anxiety to those who crave it. When it comes to personal matters, like divorce, the need for control may be even greater. The feeling like one is not in control of his or her own future or relationship is a common frustration expressed by divorcing couples who are litigating and at the mercy of the court system. Luckily, there are alternative options for couples wishing to seize control of their divorces.

Mediation and collaborative law are private processes. These processes keep everything between just you, your attorneys and any other professionals who you invite into your case.

Besides offering privacy and dignity, the mediation and collaborative law processes also provide a degree of control that is absent from the court system:

  1. You meet at times that are convenient for you and your spouse and that work with your schedules, not the judge’s.
  2. You’re not sitting around the courthouse, for hours at a time, waiting for your case to be called while your attorney is billing for the time she is sitting next to you, checking her emails.
  3. While you are expected to provide full financial disclosure, you’re trusted to do so and you will be asked questions in a respectful way.
  4. You won’t be cross-examined and attacked by your spouse’s attorney.

Over the years I have noticed that mediation and collaborative law tend to attract many business owners and consultants. My theory is that these types of clients are used to having more autonomy and control over their personal lives, and they don’t want to give that up just because their marriage is ending. Yet, striving for this type of control around your divorce process makes sense even if you are holding down a job with regular hours. Divorce is hard enough without also fearing that you are going to lose your job, or that your childcare provider is going to quit on you because you can’t keep your schedule regular.

In mediation and the collaborative process, you and your spouse are in control of the times when you meet and the issues that are discussed at each meeting. You are encouraged to say what is important to each of you as you work toward your agreement. If you expect that this kind of communication will be encouraged in court or that you will have the chance to “explain your story to the judge,” you will be very disappointed. Once you are in litigation, not only will your attorney tell you not to talk to your spouse, he or she will also make it clear that you are not to speak to the judge unless you are asked a direct question. While the attorneys are arguing your case to the judge and arguing with each other, you and your spouse will be expected to sit quietly and just wait to be told what’s going on.

Don’t just sit there! Take control of your divorce by exploring mediation and the collaborative law process at


Andrea Vacca
570 Lexington Avenue Suite 1600 New York, NY 10022

Working outside of the court system allows divorcing parents of the boomerang generation to consider, discuss and plan for when their adult children return home.

In the New York Times Magazine, there was recently an article about the boomerang generation. Kids are coming out of college and moving back home with their parents, perhaps after unsuccessfully trying to live on their own.

Regardless of whether this is a savvy way for kids to save money without sacrificing a certain lifestyle, or a sign that they are just not able to take care of themselves in this economy, the fact is that these boomerang kids aren’t a temporary phenomenon. They appear to represent a new life stage. The article states:

“One in five people in their 20s and early 30s is currently living with his or her parents.”

So, there is a 20% chance that adult kids might boomerang. And even if they aren’t living at home, there is a great chance that these kids are still partially dependent on their parents for help with rent and other expenses. When the parents of this generation are still living together, they can have a conversation that asks, “What are we willing to do to support our adult children?” But when the parents are divorced, that conversation is a lot harder to have.

A real benefit of resolving a divorce outside of the court system, through collaborative law or mediation, is that these parents can have a facilitated discussion, during their negotiations, about what would happen if their adult child returned to live with one of the parents.

A judge in a litigated divorce will not want to hear anything about this possibility, because courts only require child support to be paid until the age of 21 in New York (and even younger ages in other states). If divorcing parents are relying on a court to tell them what the child support should be, the parent with whom the child moves home is going to be stuck supporting the child on his or her own. There will be no obligation for the other parent to help out financially, and the courts will not be able to change that fact.

Divorcing parents need to have a conversation about, and plan for, the boomerang generation. One option that clients have considered is to set money aside from their distribution of assets and hold those funds in a joint account in the event the child moves back home. If holding funds aside is not an option at the time of the divorce, the divorcing parents can make sure the agreement clearly states that if an adult child asks to move back home, the parents will use mediation, or work with a financial neutral professional, to figure out how to share the costs. The adult child can even be a part of the discussion. Some questions that need to be answered are:

  • What will be the increased costs when the child is living at home?
  • What will be the child’s financial and non-financial responsibilities?
  • How much extra is needed from the other parent and what can they afford to give?

With college loans rising, and companies being slow to make new hires, the boomerang generation is becoming a more permanent subset of the economy. What is now a 20% chance of adult children returning home may increase until the economy is – once again – able to support them. The boomerang generation is the new reality, and it makes sense for divorcing parents to at least consider this issue as part of their divorce negotiations.

Andrea Vacca
570 Lexington Avenue Suite 1600 New York, NY 10022

Gwyneth Paltrow and Chris Martin have made the news lately with their “conscious uncoupling” – a new term for a mindful divorce that is an excellent example for separating couples to learn from.

Like most people, I had never heard of this term until it was talked about in the media. As it turns out, whether I knew the term for it or not, the philosophy behind conscious uncoupling is exactly why I encourage my clients to use the collaborative law process or mediation when they are ending their marriages. It is also the reason why I use these non-adversarial processes to help couples enter into prenuptial agreements; it’s what I call conscious coupling.

Conscious coupling – as opposed to Paltrow’s and Martin’s uncoupling – is best embodied in a well thought-out and fair prenuptial agreement. Instead of focusing on keeping as much of a party’s income and assets out of the hands of the other spouse in the event of divorce, a prenuptial agreement that is entered into consciously will focus more on:

Each party’s needs and interests The type of life that the couple is planning together The long-term implications of the decisions that they’re making

Conscious coupling requires the parties to be communicating with each other during the negotiation process of their prenuptial agreement. When someone takes an “I’ll just let the lawyers get involved” kind of attitude, there is the potential for the process to become very adversarial, very quickly – and even worse, it might turn into a fight between two lawyers’ egos. That approach really doesn’t make a lot of sense if you’re planning to have a healthy, honest and long-term marriage.

The way that I like to facilitate prenuptial agreements is to either:

Mediate the process, which means the couple meets with me together, and we discuss what is important to each of them. For example, if one person wants the prenup to protect their premarital assets and limit the amount of spousal support they may have to pay in the event of divorce, what will the other person need to feel safe and secure entering into the marriage?

Work collaboratively, which means that the parties sit down with their collaborative attorneys and everyone can talk about their interests and needs, as well as the goals for their marriage. By encouraging honesty and transparency, the parties are encouraged to talk to each other, not at each other – and certainly not through their attorneys.

Whether through mediation or the collaborative process, my clients are entering into the marriage with a lot more clarity about what they each need and what’s important to them.

There is a lot to consider before entering into a prenuptial agreement, but the end result is a much better agreement that will allow each party to feel secure during the marriage. This is because the terms were arrived at much more consciously – and not based on fear and anxiety and the other raw emotions that are so common when discussing money issues at the beginning of a marriage, or the end.


 Andrea Vacca

570 Lexington Avenue Suite 1600 New York, NY 10022

When a couple divorces, it is usually the case that neither party gets everything he or she wants. Understanding and accepting this fact before you start the divorce process can help make the process less costly – both financially and emotionally.

One of the many things I have learned from my family law clients over the past 20+ years is that when they strive for an outcome (whether via agreement or court order) that provides them with everything they want, they are inevitably disappointed. Perfection is not achievable in life and it’s certainly not achievable in divorce. Instead, I encourage my clients to think about what a “good enough” outcome would look like.

For example, if we’re talking about spousal support – How much money per month do you really need or can you afford to pay? What are the most realistic options that are available to you now that there will be two households instead of one? Many times sketching the financial picture makes people cringe – especially if they’re being told things that they don’t want to hear, such as “You have too much debt,” or “You’re going to have to return to work.” But sometimes there is no way around these facts. It’s better to accept reality and work within those parameters, rather than to strive for an outcome that may look perfect to you but will leave your soon-to-be ex (and perhaps the children) suffering terribly.

The dangers of striving for perfection are also seen when negotiations have led to an outcome that both parties feel comfortable with, only to have one party move the goal post and suddenly insist they need to get more of something or give less of something else. Perhaps it’s human nature to think: “This would be even better, if only…” but this mindset poisons negotiations and agreements – and can destroy whatever good faith a couple has built up during their settlement discussions.

To keep the good faith alive, I encourage my clients not to strive for perfection in their agreement, but simply to strive for enough. Author Bob Perks wrote about the idea of “enough” after talking to a man at an airport whom he had just witnessed wishing his parting daughter “enough.” The man explained:

“When we said ‘I wish you enough,’ we were wanting the other person to have a life filled with just enough good things to sustain them.”

This is the advice I give my clients – I encourage them to think about what is enough to sustain them in a place where they are safe and happy and can move forward with their post-divorce lives. To get to this place, they need to focus on the things they need instead of the things they want or have been told they deserve. And I encourage them to choose an out-of-court divorce process, such as collaborative law or mediation, that will allow them to be as creative as they need to be. This will help them be sure that their agreement will give each of them enough under the circumstances and will be fair and durable enough to stand the test of time.

Andrea Vacca
570 Lexington Avenue Suite 1600 New York, NY 10022

In my last post, I explored the idea of “doing no harm” as a collaborative divorce attorney. Some of the comments I received focused on what it means to be a collaborative professional, while others lamented the prevalence of lawyers who call themselves “collaborative” when their actions are anything but.

If you are a client who wants to use the collaborative process and stay out of court, you want to know that your attorney is actually committed to that process and understands the different mindset that it requires on his or her part. To get the information that you need, these are the questions I would suggest you ask a collaborative attorney and the types of answers that you want to hear:

How concerned are you about whether my spouse gets what he or she wants out of this divorce?

This question gets to the heart of whether an attorney understands the difference between collaboration and cooperation. Collaboration is about making sure that the other person’s goals are met, even if they aren’t the same goals as yours. This is a lot harder than simply cooperating, which is about working together for mutual benefit toward common goals.

I’ve been doing this work for more than 20 years and I don’t know many couples who share an abundance of common goals at the end of their marriage. Sure, couples will often be equally committed to keeping their kids out of their conflict and maintaining an amicable relationship with each other, but they rarely have common financial goals for their lives after their divorce. One may want to own a home, while the other is comfortable renting. One may feel confident in her career, while the other sees layoffs all around him. One may want to have access to cash, while the other feels comfortable investing in real estate.

Agreeing to work collaboratively at the beginning of the process requires each party to respect the other’s concerns and goals, and understand that an agreement cannot be signed until each of their goals are met.

Do you believe that people who are truly in conflict can engage in negotiations without drawing lines in the sand and using threats and coercion to get what they want?

An attorney trained in collaborative law will answer “Yes” and will go on to explain the difference between a position and an interest.

Maintaining a position is insisting on a specific outcome. That’s the “line in the sand.”
Negotiating with interests in mind is being open to different outcomes that can meet that underlying interest.

Collaborative lawyers encourage their clients to articulate their interests rather than take positions. This opens up options and often clears a path to an outcome that can meet both parties’ individual goals.

How comfortable are you using other professionals as part of our divorce team?

The answer that you want to hear is that these attorneys have had positive experiences working with different divorce professionals including:

  • Financial professionals who help to clarify each party’s financial concerns and help structure an agreement that meets each party’s financial goals;
  • Divorce coaches who help with communication and emotional issues that can hijack the negotiation process; and
  • Child Specialists who bring the voice of the child into the negotiations.

Attorneys with a collaborative mindset will be able to give you examples of how their other clients have reaped the benefits of having these specialized professionals on their team, and how their divorces generally ran more smoothly as a result.

Are you a member of any collaborative practice groups? What types of trainings have you had?

If you live in the New York metropolitan area and you are looking for a collaborative attorney, ask if he or she is a member of the New York Association of Collaborative Professionals. If you live elsewhere, it shouldn’t take too much time to research the affiliation of collaborative professionals in your area. Membership in these types of groups can help you determine if someone is committed to working in the collaborative law process and receiving ongoing training.

Knowing that your attorney is committed to the collaborative mindset is essential to the success of the process. The above questions will enable you to weed out the committed collaborative attorneys from the less so and help you to trust that the process will move forward in the manner you envision.


Andrea Vacca
570 Lexington Avenue Suite 1600 New York, NY 10022