Articles Posted in Collaborative Law

Although divorce lawyers are required to remain current with their knowledge in all areas involving family law, this FinancialNeutraldoesn’t negate the value of accessing external insight from other professionals during a divorce mediation or collaborative law procedure. I often find that divorcing couples seem unsure of their rights regarding financial matters during a divorce, and may be unaware of the financial implications posed by different settlement options. Just as a child specialist can be effective in helping couples to navigate the complexities associated with child-centric cases, a financial neutral can be beneficial in providing guidance regarding financial concerns. Specifically, financial neutrals can be particularly helpful in answering the question of how both sides in a divorce can manage the transition from one household, to two households, in a way that maintains financial stability.

Unlike collaborative cases – which often involve a team of professionals, most mediation sessions involve a divorcing couple, and a mediator. However, this doesn’t mean that mediation, like collaborative law, cannot be supported by independent parties. In fact, mediating coupes are regularly advised to seek out review attorneys who can review their mediated agreement and help them understand their rights. In the same vein, there’s nothing preventing other professionals from joining the mediation for the best interests of both parties involved. After all, during a litigated case, other experts are frequently retained and court ordered. In collaborative cases, financial neutrals, and neutral divorce coaches usually make up vital parts of the team. Continue reading

Matters of family law are almost always more complex when they involve children. This is one of the many Young Couplereasons why a large number of parent’s attempt to resolve disputes and concerns through amicable legal methods such as mediation and collaborative law, in an effort to avoid some of the frustration and turmoil that can result through litigation. Sometimes, in order for a mediation or collaborative case to have the most successful impact in any given situation, it may require the input of additional input beyond that given by the neutral mediating party, and any collaborative lawyers present. In fact, many mediators and collaborative lawyers actively advise working alongside other experts during a negotiation-friendly discussion of child custody and parenting time issues whether in the context of a divorce or not.

One of the many valuable experts involved in collaborative and mediation cases for parents, is a child specialist. These individuals are often engaged in an attempt to assist with easing the emotional transition and friction involved in making decisions based on parenting time, custody, and other highly significant family matters. Child specialists are unique in their ability to offer significant value to many cases in the form of additional specialized knowledge, techniques for dispute resolution, and more. While child specialists are referred to most commonly in the context of collaborative law, they can also be used to positive effect in mediation. Continue reading

 

There are several different ways to approach divorce. Among the gentlest, yet sophisticated dispute Collaborative Meetingresolution methods is collaborative divorce. The parties in a collaborative divorce enter into a contract (“Participation Agreement”) to negotiate a divorce settlement without involving the court, or a mediator, but rather assembling a team comprised of collaborative attorneys, a neutral psychological professional (divorce coach), and often a neutral financial professional. During the collaborative law process, the parties sometimes engage experts for assistance, such as appraisers.

Among the benefits are more control over the process than you have by going to court, less acrimony and stress, usually less expense and time than a highly litigated case, and the preservation of existing family relationships. In many cases, collaborative law is the best choice for parents trying to protect their children from the emotionally destructive aspects of traditional divorce litigation.

The parties also have the benefit of counsel advice during the process, which they sometimes don’t during mediation (even though people are advised to use review attorneys in mediation). However, critically, if a matter does not get resolved through the collaborative process, the attorneys who represented the parties in the collaborative divorce cannot represent them in the litigation that follows. The rule is intended to allow the divorcing parties to be more honest and direct and posture less. It also ensures that attorneys commit themselves to the collaborative process, rather than abandon it for litigation.

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elegant fashion man is pushed away by his loverNo matter the circumstances, a divorce is rarely pleasant or easy, but it can be resolution and a new beginning. In any situation, there are various factors that both parties will need to carefully consider – such as how to split or share assets, who should be responsible for what, arrangements connected to child custody and parenting time or visitation, alimony aka maintenance, and so on. Commonly, divorcing spouses find that they agree on very little, and neither are immediately willing to compromise. When dealing with a high net worth divorce, the issues can become somewhat more intense, as unique nuances present themselves that are likely to occur less frequently in other cases. For instance, the stakes are higher as each side has more resources at stake, including a combination of business interests, assets, tax implications and more. Because of this, certain steps that wouldn’t be considered at other times come into play more frequently and in greater number.

In any divorce, both parties are likely to feel a wide range of emotions, from disappointment and aggravation, to anger and betrayal. Because of this, divorce rarely seems like the best time to make decisions regarding long-term finances, but it is crucial to consider the effect a divorce is going to have on someone’s life moving forward. In a high net worth case it is particularly important not to rush, just to get the divorce done. While a quick resolution may be desired, things need to be carefully considered. It’s worth noting that many of the considerations that must be addressed in high net worth divorce cases are topics that may be relevant in typical divorces. However, since the resources are greater, the incidence of issues within high net worth cases may be more frequent and the consequences greater. Continue reading

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Issues of conflict commonly arise when parties within a case find themselves intolerant of each other’s requests or opinions. When goals change, cracks can begin to form in relationships of any kind – from marriages, to parents and their children, colleagues in the workplace and more. When people think and act agreeably, there is an alignment that ensures dispute and conflict can often be avoided – however this is rarely the case in legal matters, particularly in regards to family law.

Unfortunately, the more conflict is allowed to grow, the more likely it is that such conflict will begin to cause serious problems – which can be a barrier to resolving a case and reaching an amicable settlement. The task of professional mediators, collaborative lawyers and negotiators is to utilize the right techniques in de-escalating conflict and resolving matrimonial and family law cases. Although this blog is mostly written with divorce mediation in mind, such techniques can also be useful in collaborative cases, and to a certain extent may have some impact on classic settlement negotiation or litigation. However, the adversarial model used within the court system often tends to escalate, rather than reduce conflict – leaving less room for resolution by agreement. Continue reading

Let me start this blog by stating that this blog entry is not to be considered tax advice. Everyone is advised to seek theTaxDivorce advice of an appropriate tax professional, such as a CPA, regarding tax questions. This blog, however, is intended to identify some issues and language to be considered when trying to address the tax issues that commonly present in divorces. These matters should be considered when planning, drafting and negotiating a divorce settlement with your divorce lawyer or mediator.

Each case and agreement is different, so the following is intended to be illustrative only. Tax filing status is a big consideration when divorcing. Some common language in a settlement agreement might provide that the husband and wife can file taxes jointly or separately if they so choose for any tax year that they are still married at some juncture during the year. In that event any tax refunds received are often designated by the agreement as the Separate Property of the recipient spouse. The settlement can also state that if both sides agree to filing jointly, they may do so only so long as they are able under the tax laws. In what proportion any refunds or taxes owed should be discussed such as whether everything (refunds or amounts due) is going to be shared equally or in proportion to the respective contributions towards taxes or responsibility for any shortfall. Continue reading

My mission is to help the wronged, unhappy or injured get what is fair and right.  This is the initial draft of my “Why” as I discovered scales of justiceyesterday when doing an exercise at the annual training of the New York Association of Collaborative Professionals.  The “Why” can be tweaked and tested, but this is was what I came up with after working with others to search for it in the exercise.  The exercise to find our Why was as suggested by Simon Sinek’s method through our trainer at the meeting.  My understanding of what the Why is would be that which we can not help but doing because it is our natural inclination.  On reflection, I get to do this as a matrimonial,  family law lawyer and mediator on a daily basis.  As a mediator, it is not my role to advocate for either side of the issue, but rather to facilitate the coming together to resolve their issues.  When I look at the settlements as crafted between the parties from my mediated cases, I find that they are fair balanced agreements.  It is my job as a review attorney to identify for my clients the fairness of the agreements that have been negotiated with a different mediator.

As previously mentioned, I am a big fan of alternative dispute resolution processes such as mediation and collaborative law, but the majority of my cases are and have been in the more traditional route as set up by the court system, which is the adversarial system.  So, a lot of my clients are in battle, and as their lawyer, I fight hard for them.  Since I am an experienced litigator, trained and certified mediator and collaborative law attorney, it allows me to help people with divorce and family law issues no matter what process they choose to use.  It turns out though, that my chosen profession fits the why that I discovered.  Invariably, people with matrimonial and family law issues either feel wronged, unhappy or injured in some way.  It is my job as their lawyer to help them get what is fair and right.

There are many reasons that I recommend mediation or collaborative law over the traditional adversarial route for those that are willing and able to do it.  To name a few of them, the adversarial method tends to foster bad feelings between the parties as the usual modus operandi of everyone involved is to emphasize the good for their side and the bad about the other.  In other words there is mud slinging in litigation.  Just because a relationship has ended, however, does not mean that people need to leave the relationship as enemies.  Two parents are forever connected by their children even if they are no longer romantically involved. Continue reading

For some litigation works, but many find litigation to be a frustrating process.   Litigation can be a time consuming, Quarrel of parentsexpensive, emotionally draining process that is hard on any children of the family.  Some cases settle relatively quickly after one, two or a few court appearances.  Others find though, after being embroiled in a divorce for months, sometimes literally years (depending on the complexity and the location of the court), without a definitive end date in sight, that they are weary from the court process.  As a Long Island Divorce Lawyer, mediator and collaborative law attorney, I can definitively say that it will take longer from the start of a divorce case to the end of a trial than a mediation or collaborative law case.

Why might it take so long?  Due to the volume of divorces filed in areas like Nassau County, Long Island and Queens, New York City, many cases can not be settled right away and need the courts to either decide the cases or help them settle.  The amount of judges and judicial hearing officers that can deal with the cases is simply not enough to be able to resolve the cases in the amount of time that the parties would like.  A lot of people going through a divorce are under the misimpression that the first time they go to court they will stand at the microphone in front of the judge and have their turn to tell the story.  The belief is that then the judge will rule upon their case and the divorce will be over.  I think we have television shows like the People’s Court, Divorce Court, and Judge Judy to thank for this misperception.

Most of the time, the first time people go to court in a New York divorce it is for a preliminary conference.   At a preliminary conference a schedule for the case is made including when discovery demands need to be served and responded to, when examinations before trial should take place (depositions), and when a case should be ready for trial among other things.  The ready for trial date is usually six months to a year after the preliminary conference.  Routinely, however, the dates set forth in the schedule in retrospect were hopeful dates. In most cases, every step of the way takes longer than was anticipated in the schedule. Even if the lawyers and parties met the initial deadlines set forth in the case, the court’s calendar needs to be able to accommodate a trial. Trials can take many days that might not be consecutive.  At times a trial begins and then is continued at a later date weeks or months later.  Accordingly, it might take months to complete the trial and get a decision out of the court.  Also, the decision, might not be what either side wants.  A common example of this is with a parenting time schedule.  The court usually will make a “cookie cutter” type parenting time schedule, such as every other weekend to the non-custodial parent that may or may not fit either side’s schedule. Continue reading

Whether a case is settled before it is filed, after some litigation, or a Judge decided it, at the conclusion of the case a number of lawyer showing a divorce decreedocuments must be prepared, signed and filed with the court in order for the divorce to be finalized.  These same documents are required throughout the state and regardless of the method used to decide the case such as mediation, collaborative law, litigation, or settlement negotiations.  Therefore, in my practice as a Long Island Divorce Lawyer, or in my New York City and surrounding area cases, the same forms are used.  The first document that always needs to be filed in a case is called the Summons.  A divorce can be started simply by filing a Summons with Notice alone, in the local Supreme Court along with the payment of the filing fee to purchase an index number which is $210.00.  A Summons is filed along with the Complaint, but when a Summons with Notice is filed the Complaint can follow at a later time.  Both a Summons and a Summons with Notice dictate the time period for the spouse to appear in the case by serving a Notice of Appearance.  A Summons with Notice must also contain the grounds for the divorce, be it the “No-Fault” or otherwise, along with a description of the ancillary relief that is requested such as child support, maintenance and equitable distribution of marital assets.

The Notice of Automatic Orders and Notice Concerning Health Care Coverage need to be attached to the Summonses. The Automatic Orders essentially provide that the status quo be maintained until written agreements or court orders otherwise are made.  For example, retirement accounts can not be drawn upon and insurance that is in place must be maintained to name some of the orders.  The Notice Concerning Health Care Coverage informs that upon the entry of the divorce that spouses may not be able to stay on the health insurance of their spouse.  COBRA benefits are usually available for a period of time, however this comes at a cost.

A Verified Complaint needs to be filed and served. The Complaint sets forth if the residency requirements are met, the children of the marriage (if any), health insurance plans, grounds, if the ceremony was religious or civil, and the relief sought again.  The Verification sets forth that the Plaintiff has read the complaint and that it is true and is signed before a notary public.  If the parties were married in a religious ceremony, an additional document called the Sworn Statement of Removal of Barriers to Remarriage must be included in the filing package.  Each party signs these before a notary to set forth that they have or will take any necessary steps to make sure the other side can get remarried in their religion. Continue reading

Nassau Collaborative GroupThe Long Island contingent of the New York Association of Collaborative Law Professionals has been making a push to start implementing streamlined protocols in order to further save time and expenses to divorcing couples that have chosen to work collaboratively. Collaborative law is an alternative to litigation, but unlike mediation, each party has the representation of trained professionals that make up the team in this non-adversarial divorce process. Typically, the team includes each party having their own collaboratively trained attorneys, divorce coaches, and one financial neutral although the necessary professionals can vary from case to case. As a New York City, Long Island and Nassau County Collaborative Divorce Lawyer, I believe in the collaborative law process. I am pleased that we are now using the streamlined initiatives here on Long Island. I want to use this blog entry to reiterate why collaborative law is the gold standard for divorces and as an opportunity to talk about the streamlined collaborative divorce process.

Collaborative law is the gold standard for divorces. Everyone works together to stay out of court and to work with a team of well trained professionals equipped to deal with the legal, financial and emotional aspects of dissolving a marriage. Parents put their children first in the process. The process is designed to help a couple safely and sensibly transition into two independent households. Collaborative law is a moral and honorable way to divorce with integrity. Most importantly, the process works to resolve issues and get couples to agree.

The streamlined process essentially is broken down into four phases. Phase one is putting the team together. Phase two is information gathering. Phase three is brainstorming options and reaching agreements. Phase Four is moving on with the rest of your life, your new story! Continue reading