New York Divorce Lawyer Blog

One of the reasons I am passionate about collaborative law is because I am able to learn so much from it. Recently my desire to learn led me to discover a new way of looking at the world through the lens of Positive Psychology. Positive Psychology is the scientific study of well-being, happiness and what helps people to thrive as opposed to just survive. I decided to delve deeper into the subject and I emerged from my studies with a Certificate in Positive Psychology. For this post, I thought I'd share some of what I've learned along the way and how it is applicable to my clients who are divorcing.

1) The importance of feeling all emotions

Positive psychology is not about positive thinking, it's about realizing that experiencing difficult emotions is a necessary step to realizing the more positive emotions in life. In other words life can be difficult at times, especially when you are going through a divorce; but don't get down on yourself if you feel down. Give yourself permission to feel hurt, angry or fearful. Only then will you truly be able to feel the joy, gratitude and peacefulness that exist in other parts of your life and in your other relationships.

2) Strive for post-traumatic growth

Most people have heard about post-traumatic stress, but there is also such a thing as post-traumatic growth. Like Nietzsche said:

That which does not kill us makes us stronger.

He was absolutely right. One of the books that has had a great impact on me is called What Doesn't Kill Us: The New Psychology of Post-Traumatic Growth by Stephen Joseph. In it, he uses a great example involving a vase: When a marriage ends, people feel their life has been shattered, almost like a beautiful vase that fell to the floor and shattered into dozens of different pieces.

What do you do? Do you try to put that vase back together to make it look like it did before, knowing that it never will? Do you want that vase so badly that you don't care what it looks like? Or do you say, "I'm going to make a new piece of art from these beautiful pieces."

In other words, you will see that the beautiful pieces of your life that remain, such as your kids, your friends or your work, can be put together to create a fulfilling and happy life. The end of your marriage (although traumatic) does not have to ruin every other aspect of your life.

3) Look at your divorce as a peak experience

When I say "peak experience" I don't mean one of the most wonderful things that has ever happened to you, but an experience that takes you to a new place where you can see a new landscape. Any kind of trauma can be a peak experience.

For example, when a person has a near-death experience, life never looks the same - usually for the better. If you were to look back on your divorce, what strengths did you call upon that you didn't know you had or just hadn't used in years? More importantly, when you look forward, what places do you see yourself going from here?

4) Have a growth mindset

If you have a growth mindset during your divorce, you will regularly be asking yourself, "What will make me more empowered?"

Take it one step at a time. The first step is believing in yourself, and your ability to get through difficult situations and learn from them. You'll be able to better grow through those challenges, but you have to believe in yourself.

For instance, you might not have been a financially aware partner. Your spouse might have taken care of the finances, and it can be really overwhelming and scary to people to step into that role - but once you do it yields incredible freedom and you realize you're actually good at it. Or maybe you even like it.

5) Learn to be resilient

Are you viewing yourself as a survivor or a thriver? Do you want things to be better and be different? Achieving those goals often comes down to how you talk to yourself. If you say, "I want to be better on the other side of this; I want to learn and grow" then you're going to be better able to create that reality for yourself.

I hope this post has given you an idea of how the principles of positive psychology can help you or someone you know grow from their divorce. There are many resources available that can help you learn more about it. For more reading recommendations from me, email me at avacca@vaccalaw.com.

Andrea Vacca
570 Lexington Avenue
Suite 1600
New York, NY 10022
avacca@vaccalaw.com

The setting in which Family Law attorneys work is often not a courtroom, but a complicated landscape of their clients' needs and emotions. Because many of these emotions are difficult to experience, it is natural that a divorcing couple might want the process to conclude quickly. But moving forward too quickly without sufficient understanding of each party's true needs and goals risks the integrity of the final product. To ensure a settlement agreement has the durability to last and keep both sides satisfied in the long term, many collaborative professionals use a roadmap that helps to illustrate for their clients the stages of the collaborative law process. This roadmap helps to slow down the tendency to prematurely rush ahead toward solutions that may have little connection to actual interests and goals by helping the parties to see where they're going in the process and also how far they've come.

A TYPICAL COLLABORATIVE ROADMAP IS COMPOSED OF THE FOLLOWING STEPS:

• Setting the Framework: This initial phase of the process involves explaining to both parties how the collaborative process works and describing each person's roles and responsibilities.The clients will discuss why they have chosen to work collaboratively and what their goals are for the process. We also "assemble the team," deciding which other professionals will be necessary to help see us through the various issues in the divorce. How can a child specialist or a divorce coach assist in this process? What issues may be more easily resolved by working with a neutral financial professional?

• Gathering Information: Here we identify the potential conflicts that need to be resolved and gather the facts and information about those issues that will help settle them. Different members of the team in place may now be called on to assist. For example, if the divorcing couple has children, at this stage the coaches and child specialist will gather information about the emotional and personal relationships between the couple and their children. We'll want to know whether there are any special needs of the children or emotional issues that must be addressed. The financial professional will start gathering information about the parties' assets, debts and income and the attorneys and clients may have an open discussion about the law at this stage as well.

• Developing a Shared Understanding: This is where we define the interests of the parties. We take a look behind the stated positions of each side to examine not what the parties claim to want, but why they need it. When one spouse insists he or she needs to "keep the house" we look to see what the reasoning behind the request is. Is the real issue that one of the parties needs to stay in this particular home because the carrying charges are low? Or is it because the grandparents live nearby and help out with the child care? The goal here is to get away from blanket positional statements and look at the underlying reasons for those positions.

• Generating and Evaluating Options: By this stage, we are looking to find an actual solution that works for both parties by looking at the available options. Each party will consider and evaluate the options to see whether they satisfy each of their main interests. We can also test out possible solutions. For example, if we're dealing with an issue that is financially related, the financial professional will "run the numbers" and do a side-by-side comparison of the different options under consideration. We can pose the question, "what amount of cash will each party have left after taxes over the next 20 years if we divide the assets this way as opposed to that?" This approach allows each spouse to see what choices are preferable in the long term and make decisions based upon this information.

• Reaching Agreement: When each party is satisfied that its concerns have been addressed and feels secure about the compromises made, it is time to actually draft and sign an agreement. As you can see, by the time we get to this last step, each party has had many opportunities to have his or her voice heard and interests addressed.

An agreement reached by following the collaborative roadmap means more than just the paper it is printed on - it is significant because it was the product of both parties making decisions with all necessary information before them, listening to each other and cooperating with one another. This not only makes the divorce process a lot less unpleasant than an adversarial action in court but can also provide the parties with a method to solve problems together in the future.

Andrea Vacca
570 Lexington Avenue
Suite 1600
New York, NY 10022
avacca@vaccalaw.com

In previous blog posts we discussed the reasons why postnuptial agreements are becoming more popular and how to ensure that your postnuptial agreement is enforceable under New York law. If you've decided that a postnuptial agreement is something that you want to pursue, it is important to be adequately prepared for the negotiation process. These are some suggested steps that you should take before you begin:

• Write Down Your Own Goals And Concerns - It is easy to become overwhelmed by all of the questions you will have and to get distracted by all the issues that you may want to resolve. Likewise, it is easy to lose sight of the big picture and, due to the nature of the agreement, become overwhelmed by emotion. Taking time before negotiations begin to write down your long-term goals and concerns will help you maintain your focus on ensuring the best possible outcome for you and your spouse. It will also aid the negotiation process. By articulating a defined goal rather than becoming attached to a specific formula or percentage, both spouses are more likely to use creativity in finding a solution.

• Become Familiar With Your Assets And Liabilities - You cannot enter an agreement concerning your financial future without understanding your current financial circumstances. Familiarize yourself not just with your current property, debts, salary, and investments, but also what you and your spouse's potential earning capacity may be, any anticipated increase in asset values or liabilities, and any expected inheritance or trust payouts. You may find it helpful to consult with a financial advisor who has experience working with clients who are negotiating postnuptial agreements.

• Get Educated About The Law - Speak with an attorney who can educate you about the relevant laws related to spousal and child support, how assets are defined, valued and distributed, and what laws govern custody and parenting issues. Understanding your legal rights and obligations will give you a better idea of what a postnuptial can or cannot do for you and which issues may be easier to resolve than others.

• Get Educated About the Negotiating Processes Available - An attorney will also be able to help you decide what negotiating process will best serve you and your spouse. Do you and your spouse each feel comfortable advocating for your own needs and concerns? If so, mediation might be a good option. If one or both of you feels more comfortable having your attorney by your side during the negotiations, working in a collaborative manner might make the most sense. Or perhaps it would be too uncomfortable being in the same room as your spouse while you are negotiating such an agreement because emotions are running high. In that case, the best option for you may be to leave the communication to the lawyers. Speaking with an attorney who has negotiated postnuptial agreements via these different processes will help you determine what makes the most sense for you and your spouse.

• Hire Independent Legal Counsel - Even if you are proceeding by mediation, it is imperative that each spouse have his or her own attorney to consult with and review the agreement. An attorney can help clarify (and ensure compliance with) the laws of the state governing the postnuptial agreement, advise on the best way to divide the assets and liabilities at issue, and provide advice about how to negotiate for the outcome you desire. It becomes even more important to have your own lawyer if your spouse has one. This will help ensure equal bargaining power between the two of you. An even playing field is necessary not only to help both spouses feel confident during the negotiation process, but also in the event that the agreement winds up in court with one spouse claiming it was not entered into fairly.

These steps should assist you in coming to a fair and equitable agreement. Approached correctly, postnuptial agreements can be useful tools in preserving and strengthening a marriage and giving each party the peace of mind they need to feel secure about their futures.

A recent article in The Huffington Post summarized a University of Missouri study that analyzed the way divorced parents use technology to facilitate (or hinder) their co-parenting arrangements. According to the study, parents with effective communication used technology to improve parent-parent communication as well as parent-child access, while parents with ineffective communication used technology to frustrate both their relationship with the other parent and the other parent's relationship with the children. Establishing positive communication practices between spouses not only maintains a level of civility between the parents; it also provides a more pleasant environment for the children. Whether a couple engaged in litigation, mediation, or collaborative methods in obtaining their divorce, limiting post-divorce conflict between parents is imperative to helping children adjust.

Below are some tips for using communication technology effectively as a tool to foster positive and successful co-parenting arrangements and limit conflict:

• E-mail: E-mail can be a useful way for divorced parents to communicate with each other. Risks inherent in telephone communication are largely absent in e-mail communication: telephone conversations can be impulsive and rash, and since they are generally not recorded, a parent may feel entitled to make any manner of accusation toward his or her ex. Parents can also use the telephone to avoid communication, by ignoring phone calls and voice messages. By contrast, e-mail affords a parent with the ability to express himself or herself, then edit the message to ensure that only a calm, rational tone is used. E-mail also provides a communication trail, which makes it more likely that a parent will limit his or her hostility.
• Text Messages: The idea behind using text messages to communicate is similar to that of e-mail. Text messaging is more immediate, but still allows each parent to edit their message for the appropriate tone, and creates a communication trail.
• Calendar Sharing: With Google calendars or iCloud, parents can share calendars with each other. This can ensure that each parent has access to the children's academic, extra-curricular, and social activities. Shared calendars can also provide a method by which parents can keep tabs on parenting and vacation schedules, including travel details and changes in the usual parenting plan. Creating a shared calendar thus minimizes the likelihood that a parent will miss an important event in the children's lives, while mitigating the interaction between parents regarding their own schedules and those of the children.
• Online Co-Parenting Software: In the event that parents prefer help with limiting conflict in multiple areas, including parenting schedules and child support payments, co-parenting software is an option. The software, which has gained popularity over the past year or so, provides calendars, expense logs, message boards, and child records (medical, academic, etc.). These features allow parents to keep track of schedules and expenses, and to communicate with one another directly. Examples of available software are Our Family Wizard and ShareKids.

As noted in a recent article in the New York Times, communication technology is becoming popular not only with divorced parents, but in the courtroom and amongst lawyers as well. According to the article, settlement agreements often include provisions for non-custodial parents to Skype with their children, and at least one judge has ordered a couple to use Our Family Wizard to avoid disagreements.

Each of the above-mentioned tools can build a successful co-parenting environment for parents and children. As the University of Missouri study concluded, parents who had good relationships effectively used these tools to maintain contact with their ex-spouses and to facilitate the children's transition between parents. As with all aspects of divorce, the children's best interests should be paramount and, to the extent that communication technologies can advance this goal, they should be widely considered.

I help couples end their marriages without destroying their families. That's not just a tagline on my website or part of my elevator speech; it's the actual reason that I no longer use adversarial methods to help my clients who are divorcing or separating. An article in the New York Times that focused on Al and Tipper Gore reminded me that all families - even celebrity families - benefit when the parents are able and willing to divorce with as little acrimony as possible.

By way of background, after more than 40 years of marriage, Al and Tipper Gore separated in 2010 when they grew apart and realized they wanted different things out of life. The article focused on where they and their 4 adult children are now in their lives post-divorce, and how the family support system has remained intact.

A friend of the Gores from Nashville, Christine Leverone Orrall, was quoted as saying that "Tipper and Al may live in different parts of the country, and may be very happy with their own lives these days, but the children always bring them together. I think they're showing how you can be happy and healthy apart while still focusing on their children and their life together as a family."

According to Tony Coehlo, chairman of Al Gore's 2000 campaign, "Al and Tipper were the happily married couple of American politics for 30 years. They packaged themselves that way for political consumption, and have unpackaged that image in the interest of their own happiness. They are still a family, but they have become the kind of family that they want to be."

Whether a couple is contemplating a late-life "gray divorce" and have adult children, like the Gores, or whether they've been married just a few years and have a toddler at home, the goal can be the same: it is possible to end the marriage while protecting the family.

Many couples stay together for the sake of the family while sacrificing their own individual happiness in the process. They may consider divorce, but after witnessing the struggles of friends and family members who divorce with a lot of animosity and anger, they want to protect themselves from that sort of pain. But divorce does not have to acrimonious. It is rarely - if ever - easy; and there is no question that it can be incredibly difficult financially, emotionally and spiritually. However, when both spouses are committed to respecting each other and keeping the animosity and anger in control, they can each move through the divorce and toward a new life that isn't weighed down by the difficult emotions that were played out in their divorce and/or exacerbated by attorneys who are trying to "win" their case.

One important lesson I have learned in my 20 years of practicing divorce law is that no one wins at the end of an adversarial litigated divorce. Neither spouse is happy, the children have frequently suffered, and an enormous amount of money has been spent fighting a war which simply cannot be won.

Regardless of their age, children want and need parents who are there for them emotionally as well as physically; but this may not be possible when their parents are suffering in an unhappy marriage. Couples who are committed to divorcing with respect and dignity are not only setting a good example for their children during the divorce process, but are better able to keep their family strong and healthy after it is over.

My article on Navigating the Gray Divorce With Dignity was recently published by the Huffington Post.

"To be one, to be united is a great thing. But to respect the right to be different is maybe even greater." - Bono

In my last blog, I discussed the phenomenon of "gray divorce" and touched on some of the unique issues that older couples face when divorcing. In this post, I will share some thoughts on how effectively the mediation and collaborative law processes can meet the unique needs of these parties.

In my mediation and law practice, I have observed that unlike younger couples who are divorcing, older couples are frequently more civil toward each other and their interactions are less characterized by anger. As a mediator and collaborative lawyer, my role is to help the parties avoid court intervention and resolve their issues in a way that will keep the focus on their needs and goals, rather than their "positions." This works particularly well in cases of gray divorce. To rework a phrase popularized in the '60s, while older couples might choose to separate because they are no longer making love, it is often not because they are making war.

Mediation and Collaborative law are two cost and time effective ways to end a marriage while adding an element of grace and dignity to what could morph from a civilized discussion into volatile, emotionally and financially draining situation if not handled properly

Older couples appreciate the fact that time is extremely precious and they don't want to squander it on a lengthy and protracted court battle, nor do they wish to deplete their savings with retirement on the horizon. In addition, many find great benefit when they have the opportunity to work with mediators or collaborative lawyers trained to be creative problem solvers who can find solutions that would not necessarily be available to them if they allowed a judge to decide their fate. A particularly important issue for these couples is access to medical insurance. Additionally, as a result of the current economic climate, I have noticed that more frequently, older couples are providing some sort of support for their adult children and/or grandchildren.

I recently worked with a couple in their early 60's who, after spending the better part of a year in court with traditional divorce attorneys, came to the realization that they weren't getting any closer to a resolution. They eventually talked to each other without their lawyers and realized that they agreed on more issues than they disagreed; they then asked me as a mediator to help them to bridge their small gaps rather than continue with the long, protracted and expensive legal battle that they saw eroding the respect and care that they still had for each other after their long marriage. We reached an agreement after just two mediation sessions and in the end this couple decided that it did not actually serve their interests to divorce at this time. For them, the most viable and practical solution was to divide their assets but to stay married for another five years so that the Wife could keep the self-employed Husband on her insurance plan and then retire at a time that would maximize the amount of her pension. This solution would have been impossible in a court of law, as a judge would not be empowered to order a distribution of their assets without also ending their marriage (which would thereby end the husband's right to remain covered as a spouse under his wife's medical insurance policy).

The team approach of a collaborative divorce has also been extremely effective for my gray divorce clients where we can use a neutral divorce coach to help the couple bridge communication gaps in a non-adversarial way and we can use a neutral financial professional to help them figure out how they can utilize their assets and live on their fixed incomes in way that will allow them to both feel financially secure post-divorce.

Many later-in-life divorcing couples express to me how important it is to them to end their marriage in a way that preserves the "good times" of their long-term relationship and accomplishes the dissolution in a way that is cost effective. They might still love each other but simply want to live apart simply because they have grown apart. However, they recognize that they still have a family unit that needs to be maintained and still want to be able to share family moments as their children get married and have children of their own.

In a recent Daily Beast post about divorced couples who celebrate this next stage of their lives by jointly throwing "divorce parties," Andrew Cherlin, a professor at Johns Hopkins and author of The Marriage-Go-Round" explained that because divorce rates have been high for several decades, couples may be learning how to do divorce a little better and in a way that minimizes the pain. His theory is that happy divorces are on the rise because unlike in the past when "divorce was so stigmatized that only the most miserable left their marriages, now the 'moderately unhappy' are getting out too, which might make for some less acrimonious splits."

Divorce parties may not be every couple's goal, but neither is the desire to hate and despise each other once the divorce is over. The collaborative law and mediation processes can help these less adversarial couples preserve what was good and move into their post-divorce lives with respect for each other and dignity for themselves.

Is 60 the new 40?

The issue of temporary maintenance for a spouse pending the conclusion of a divorce is often a challenging and divisive aspect of the divorce or separation process, and clarity in how awards should be granted is a key aspect of promoting equity. Kudos to the First Department for providing clarity to the new temporary maintenance guidelines that were signed into law in 2010. In what is the first Appellate Division case to date interpreting this legislation, in Khaira v. Khaira, the Appellate Division First Department ruled that it was an error of a motion court to duplicate an award of temporary maintenance by directing the husband to pay in accordance with the formula set forth in the guidelines and then adding an obligation that he pay the wife's housing expenses as well.

By way of background, the legislature's approach to temporary maintenance awards experienced a seismic change in 2010 when Domestic Relations Law § 236(B)(5-a) was signed into law, bringing with it a formula that must be used to determine the amount of support. Before it was passed, judges had much more leeway in ordering temporary maintenance. The statute, which is designed to create greater consistency, requires the court to explain any deviation that it makes from the result which is calculated using a specific formula. Rather than aiming merely to "tide over" the non-monied spouse, the new provision creates a substantial presumptive entitlement based upon a formula using a percentage of each spouse's income.

Initially, many divorce lawyers were not happy about the new law, as they considered it to be both rigid and potentially inequitable.

In the Khaira opinion, Hon. David B. Saxe, an Associate Judge at the Appellate Division, First Department wrote:

"No language in either the new temporary maintenance provision or the [Child Support Standards Act] specifically addresses whether the statutory formulas are intended to include the portion of the carrying costs of their residence attributable to the non-monied spouse and the children. As one commentator has pointed out, the new law 'does not factor in child support issues or payment of household expenses. Is the recipient supposed to pay for everything in the house from this money? Is the payor supposed to stop paying those bills? What about all the double counting of housing, child care, and medical insurance between this law and the child support law?" (Referring to an article by Lee Rosenberg, in the February 25, 2011 issue of the New York Law Journal entitled "Multiple Flaws Abound in New Interim Spousal Support Statute").

Judge Saxe went on to say that "....in the absence of a specific reference to the carrying charges for the marital residence, we consider it reasonable and logical to view the formula adopted by the new maintenance provision as covering all the spouse's basic living expenses, including housing costs as well as the costs of food and clothing and other usual expenses."

This clarification from the Appellate Division was sorely needed as it helps to limit the issues that divorcing couples need to resolve whether they are mediating, collaborating or litigating.

I was thrilled to read Hon. David B. Saxe's recent article in the New York Law Journal entitled "Encourage Divorce Clients to Mediate."

Justice Saxe, who is an associate justice at the Appellate Division, First Department, focused on the fact that clients who choose mediation over litigation have more control over their divorce process and the terms of their agreement and this correlates to being more satisfied with the results of their divorce. As he states in his article: "If matrimonial lawyers focus on the larger picture, they might recognize they stand to gain more in the long run from the good will and recommendations of satisfied clients following successful mediation, than from the backlash of dissatisfaction in the wake of a typical unpleasant divorce." Exactly.

Many studies have shown that clients who mediate are much less likely to be dissatisfied with their attorneys. This is because mediation, as well as collaborative law, focuses on the client's needs as opposed to their positions. The client who can look back and see that his or her lawyer was truly committed to finding solutions is going to be much more satisfied than the one who spent long hours waiting in court, was forced to endure adversarial and contentious arguments and suffered through the months or even years of litigation while having little control over the process.

There are certainly clients who "want their day in court." They are driven to prove the other spouse is wrong and they want to be heard. However, as Justice Saxe points out, due to increased case loads, even these clients won't be satisfied in court because trial judges are increasingly focused on encouraging compromise rather than trials.

When clients come to my office, I inform them of all the options that are available to them to resolve their marital and family issues, which include mediation, collaborative law and litigation. I encourage other attorneys to do the same. An attorney who can and will speak knowledgeably about these different dispute resolution models will be able to guide their client to the process that works best for them and their family. Using the court system to resolve family disputes should not be the first, knee-jerk response when a divorcing client enters your office. It should be the last.

Many couples contemplating divorce would like to try and reach an amicable agreement rather than engage in a nasty and protracted battle in a courtroom and they wonder if mediation might be a good choice for them. This blog has previously discussed mediation and collaborative divorce as alternatives to litigation. If you are interested in divorce mediation, here are 8 helpful questions to ask:

1. What is the mediation process like?
Both spouses sit down with a trained family mediator who will help them reach agreements on all of the issues that need to be resolved. They speak with each other directly throughout the process and exchange all necessary documents. Both spouses will have specific interests that need to be met. The goal of the mediator is to help each of them find solutions that meet those interests. Both sides need to be prepared to work together in a civil manner.

2. When does the mediation start and how long does it last?
The mediation starts as soon as both spouses are ready to start, and it can last until all issues are resolved. Parties don't need to wait for a court-assigned date the way they would if their case were being litigated and they can meet with the mediator as often or as infrequently as their schedules allow. While some New York courts have implementedmandatory mediation programs, most mediation is strictly voluntary.

3. Will I need my own attorney?
It is strongly suggested that each spouse consult with individual attorneys before and during the mediation process so that they fully understand their rights and obligations and can discuss with the attorney the different settlement options that are being proposed. It is also important that each spouse's attorney review the settlement agreement before it is signed.

4. What issues can be resolved during mediation?
Mediation can be used to resolve any issue involved in a divorce, including child support, spousal support, child custody and the division of property. A divorce mediator can help the parties to find creative solutions that could be impossible to achieve in court.

5. What type of training does the mediator have?
While there are no state requirements for New York mediators, family mediators who are also divorce attorneys, usually have several years of family law experience. Mediators are not required to have a legal education, but a mediator who is also an attorney has the advantage of being very familiar with the law and understanding the rights of both parties. He or she is also able to draft a legally binding settlement agreement that contains all of the terms that the parties have agreed to.

6. What if my spouse knows much more about the finances than I do?
The key to a successful mediation is that both spouses are on equal ground. If you feel insecure about financial issues, you may want to consult with a Certified Divorce Financial Analyst who can educate you on your current financial situation and help you understand what you need for your future. CDFA's will use their knowledge of tax law, asset distribution, and short- and long-term financial planning to help you achieve an equitable settlement.

7. What are my other options if we can't reach an agreement through mediation?
While you always have the option of asking a court to resolve these issues for you, you may want to consider the collaborative divorce process before going the litigation route. In a collaborative divorce, you will always have an attorney with you during the negotiations who can advocate for your rights and interests and articulate your goals.

8. Could anything said during the mediation be used against me in court?
If you sign a confidentiality agreement with your spouse and mediator, the answer is probably no. That agreement needs to specify that all statements are considered privileged communications and cannot be used in court.

Continue reading "8 Questions to Ask When Considering Divorce Mediation" »

When collaborative divorce was first developed, it was a process that involved two attorneys and their clients. The attorneys not only counseled and advised their clients about the law, but also about the financial and child-related issues that needed to be resolved. And they did their best to help with the emotional and communication issues that inevitably arose during the divorce process.

Collaborative attorneys eventually realized that while they were the best source of legal information and advice for their clients, this wasn't necessarily the case when it came to financial issues, child development issues and communication issues. Instead, collaborative attorneys realized it made more sense to refer their clients to other professionals who had specialized training in these areas. And that's when the team approach to collaborative divorce began.

Today the New York Association of Collaborative Professionals and other practice groups train financial professionals, divorce coaches and child specialists alongside lawyers in collaborative practice. As a result, the team approach to collaborative divorce has become more commonplace.

How do these other professionals help the clients in a collaborative divorce?

The financial professionals help the attorneys and clients divide the marital property in a way that makes the most sense to meet the short and long-term needs of the parties and their children. They provide tax information and they can help the parties explore different property distribution and support options.

The mental health professionals can play one of three roles. They either act as a divorce coach for an individual client, they act as the neutral divorce coach for the entire team, or they act as a child specialist. Divorce coaches help the clients deal with feelings such as hurt, anger, sadness and fear that will often come up during the divorce process and that can interfere with a client's ability to make smart choices in the negotiation process. Divorce coaches can also help the clients learn how to communicate better with their spouse, their children and even their lawyers during the process. Child specialists bring the voice of the children to the collaborative process and they educate the parents about child development issues that may need to be considered and addressed. The child specialists will then help the parties arrive at a parenting arrangement and decision-making process that works best for themselves and their children.

Is the team approach more expensive than a lawyers-only approach to collaborative divorce?

Finances and cash flow are serious concerns in any divorce and the need to retain other professionals at the outset of the collaborative process can feel daunting. But when clients take their attorney's advice to bring other professionals onto the team, they will save money in the long run. Not only do the financial professionals, divorce coaches and child specialists all charge less per hour than the lawyers, but when clients receive specialized information and advice from these professionals, they are often able to come to an agreement in less time than in cases where the lawyers are being called upon to play multiple roles.

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.

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.