Collaborative Divorce

CPCAL 2016

Informed Consent and Decision Making

April 29, 2016
Sofitel, Redwood City
Presented by Joe Spirito, Fred Glassman, and Warren Sacks

Joe Spirito was part of a panel discussion on informed decision making and the relevance of informed consent as the range of consensual dispute resolution processes expand. The panel also discussed  mediation confidentiality and proposed legislative changes to the evidence code, examining the impact said changes would have on the collaborative process.

collaborative divorce torrance palos verdes

Consensual Dipute Resolution – A Billionaire Chooses Collaborative Divorce

The Mediation Process Gives People a Chance to Tell Their Stories

When California passed the first no-fault divorce law in the nation, the reasons for the divorce were no longer relevant. Seasoned practitioners know the importance of telling the “story” of the divorce. It is by listening to the most profound issues in a changing or ending relationship that healing and resolution begin. The deepest feelings of hurt, abandonment, anger, revenge and ambivalence need to be expressed and understood. It is the experienced mental health professional who can do this in the context of mediation of custody and visitation disputes.

The attorney who attempts to dismiss feelings of a parent in order to quickly resolve the legal issues may experience an impasse. An inexperienced attorney once made a serious error in a conference when she said “Don’t talk about what happened. The past is not important; we need to talk about the future.” It’s true that family law orders focus on what will occur in the future, but to dismiss the past as not being important is a disservice to clients and doesn’t recognize important parts of our lives. Mental health mediators are often able to help parents express important feelings as a prelude to resolving the parenting plan issues.

 

A Better Divorce – Divorce Without Court

Collaborative divorce is gaining the public’s attention. The movie “Juno” mentioned it as the “latest way of getting divorced,” and more prominent couples are choosing collaborative divorce. Roy Disney, Robin Williams and T.Boone Pickens were able to work out the terms of their dissolution, privately, respectfully, fairly. Contrast that with damage to the family in the case of Alec Baldwin and Kim Basinger. In his book, A Promise to Ourselves, A Journey Through Fatherhood and Divorce, Baldwin writes a scathing account of his divorce, including harsh accounts of his lawyers and the court system. He does offer some good advice for persons contemplating divorce.

The billionaire, T. Boone Pickens, for his fourth divorce, chose collaborative divorce. He was so pleased with the process, not only did he work things out without going to court, he told a room filled with lawyers the “collaborative approach saves both money and emotional wear and tear on families.” When asked how much the collaborative approach saved him he said “several million.” He was so impressed he donated $100,000 to the Collaborative Law Institute of Texas (http://www.collablawtexas.com/). A California judge going through his own divorce has recently chosen Collaborative Divorce.

 

 

 

 

Emotions and Conflict Affect Attorneys

It is the emotional support aspect of the divorce that seems to drain the energy of family law attorneys. It is the attorney who seems to bear the brunt of the angry client. The attorney hears it all: the court, the judicial system, the unfavorable evaluation, the high costs, and the unfaithful parent. Many attorneys are attracted to collaborative law and excited about the prospects of practices that don’t require trials, hearings and depositions.

 

Child Custody Evaluators Too Difficult

In an introductory session for the Los Angeles Collaborative Family Law Association several years ago, at a gathering of over 60 members of the family law community, a highly respected psychologist admitted she had almost decided not to perform any more child custody evaluations. Despite the income, it was just too hard. Recommending parenting plans, figuring out how much time children should be with their parents, choosing between two caring parents—these are difficult issues. Many child custody evaluators are providing their services outside of court as child specialists in collaborative divorce.

 

Collaborative Divorce an Enhancement of Collaborative Law

Collaborative divorce is an enhancement of the collaborative law model. In addition to attorneys, this model includes the participation of financial and mental health professionals. In cases involving children, a child specialist assists the parties in developing a parenting plan. Coaches help with the emotional aspects of a divorce, and the financial professional representing neither party, provides information about the financial aspects of the divorce.

 

Putting Your Best Foot Forward v. Being Honest About One’s Limitations

A father, who may want to hide his ignorance of an infant’s needs during an evaluation, presents himself differently in collaborative divorce, and is more likely to be honest and seek the recommendation of a child specialist. It’s like being in a classroom and the teacher asking if everyone understands. We’re afraid to admit we don’t know if the consequences hurt. With the child specialist in collaborative family law, the parents know we’re there to help, not to judge. Because there is no report submitted to the court, parents are free to discuss their fears and concerns, without the fear that their admissions will be used against them.

 

Putting Your Best Foot Forward v. Being Honest About One’s Limitations

A father, who may want to hide his ignorance of an infant’s needs during an evaluation, presents himself differently in collaborative divorce, and is more likely to be honest and seek the recommendation of a child specialist. It’s like being in a classroom and the teacher asking if everyone understands. We’re afraid to admit we don’t know if the consequences hurt. With the child specialist in collaborative family law, the parents know we’re there to help, not to judge. Because there is no report submitted to the court, parents are free to discuss their fears and concerns, without the fear that their admissions will be used against them.

 

A Coach Helps a Father Learn: Complimenting Instead of Criticizing

A father desperately wanted joint custody of his young children. The mother had reservations because he had never spent much time with the children. He persisted in pointing out his strengths and her faults. In frustration, he criticized her parenting. She responded by threatening to seek sole custody. The coach suggested a break, and asked him what he really wanted. He said, “I want to be able to take care of my children; I need to spend time with them.” A different strategy was suggested. Rather than criticize their mother, he was advised to tell her she was a good mother and highlight the many things she did well. He did. “Mary, you have been a wonderful mother for our children. You have given them so much; you have taught them so much. You are a wonderful mother.” Her anger disappeared, and instead there were tears in her eyes. A therapeutic response would have been to recognize his anger and value as a father and address his basic feelings about being good enough. The coaching helps in different ways.

 

Mental Health Professionals and Attorneys

Most mental health professionals don’t like working with attorneys. They don’t like receiving letters from them; they don’t like talking to them. It’s because they don’t understand the role of the attorney. The attorneys in collaborative law are different. They have become tired of fighting; they don’t like having to do whatever it takes to “win.” They too feel like casualties of the divorce wars.

Collaborative family law provides a better way for attorneys and mental health professionals to work together. The best of both professions are available to the parents. Phone calls from attorneys are welcomed, and it’s rewarding being on the same team.

 

Young couple having marriage problems

The Divorce is Over, but there’s a Disagreement… now what do we do!?

The Divorce is Over, but there’s a Disagreement…now what do we do!?

By Deborah Ewing

 

In some cases, particularly where there are no children (or they are adults), there are no further legal issues once an agreement is reached and the Judgment of Dissolution of Marriage (divorce judgment) is signed.

However, in many cases, issues crop up after you thought your case was over.  There are many examples, including: the support payor loses his/her job or becomes disabled, and needs a temporary or long term reduction in support obligation; the supported spouse needs an increase in support for similar reasons; a parent moves away requiring modification of the parenting schedule; a child wants to significantly change the schedule, resulting in a change in both child support and the schedule; disagreements about parenting choices or activities for the children; the family residence must be sold and the parties cannot agree on terms. These are only a sampling of reasons people must ‘go back to court’.

But must you truly go to court? NO! The same cooperative process that you used for collaborative divorce, mediation or other non-litigation process can be used for any of these post-judgment conflicts as they arise. Depending on the nature of the issues, the assistance of your collaborative attorney, mediator, financial professional, coaches, child specialists, would be utilized.  Where appropriate, the agreement reached can be included in an agreement submitted to the court.

By continuing to resolve issues in a cooperative way, you reduce conflict, and save money. Even if your divorce case was a messy litigation, it is often possible to resolve future issues cooperatively without going to court, once emotions calm. It is well worth the effort.

Divorce options

Divorce Options – Workshop

Your Divorce Options – What You Need to Know!

Do you know someone who is considering divorce and wants to learn about process options?

Please recommend that they attend an informative workshop called “Divorce Options” at the Torrance Courthouse Law Library from 12:15 to 1:30 on the third Friday of each month.
Guests can attend this workshop even without preregistration. See Flyer for more details.

The program is presented by members of A Better Divorce and LACFLA– family law attorneys, mental health and financial professionals who specialize in divorce and related issues.

Download PDF: Divorce Options flyer – 83KB

 

 

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Woody Mosten speaks about “A Better Divorce”

While I have been honored to offer trainings in many communities, my two days with A Better Divorce is one of the highlights of my career.

Knowing that no one is a prophet in one’s own land, I was very nervous about offering a training in my own community with colleagues whom I respect and with whom I work frequently. My anxiety was wasted as I cannot remember learning more or having a better time than with my friends of ABD and other local peacemakers.

The level of conversation was on a high level and ABD members demonstrated a sophisticated and nuanced understanding of collaborative strategies that was most impressive. Even though the group was quite advanced, they displayed the finest qualities of peacemaking: an openess for self-reflection and to examine the way that they have long successfully practiced.

Finally, I wish to commend Jane Euler, Kim Davidson, and Joe Spirito for their countless hours in tirelessly arranging the training. Every thing was planned, operational, and the food was beyond outstanding! Anyone who has ever trained knows how important this support can be.

I not only look forward to training again with ABD, but most importantly, working with ABD members on Collaborative and Mediation cases to help families resolve and heal.

 

Forrest (Woody) Mosten

www.MostenMediation.com

Collaborative Divorce

Collaborative Divorces Gain Momentum

Getting a divorce is among the most challenging and trying times of a person’s life. Divorcing couples can spend thousands of dollars and give up many years of their lives to the traditional divorce process.

By the end, the parties come out the other side drained and bound to decisions made by a third party judicial officer.

 

It doesn’t have to be this way.

Couples looking to avoid such a public and adversarial process are increasingly utilizing collaborative divorce, which allows couples to settle the terms of their divorce confidentially and entirely out-of-court. The end result is that the parties can sign a settlement agreement with terms they actually created rather than terms determined by a judge.

Collaborative divorce is typically much less money than a contested divorce and unsurprisingly, it’s rapidly gaining momentum across the country as the preferred alternative to the traditional divorce process.

Many states, including California, have now enacted laws formally enabling and facilitating collaborative divorces.

Unlike in litigation, spouses typically utilize joint professionals, such as financial experts, child psychologists, custody evaluators and therapists. The goal of the involved parties and professionals is a cooperative resolution in the best interests of the family’s future.

So how does it work? Each party retains a collaborative attorney. The couple and their attorneys then sign an agreement that they will not litigate and will reach a fair settlement directly.

However, at any point either party can opt out, retain new counsel and pursue litigation.

But if the spouses do continue with the collaborative process, they must agree to communicate openly and work with one another and their attorneys to facilitate the process. All involved parties work together as a team, emphasizing cooperation and respect over animosity and confrontation.

Though this process may sound like mediation, it is not. In mediation, parties submit to a single, neutral third party. The mediator then works toward a mutually agreeable decision. However, a power imbalance between the parties often exists and yet they proceed without counsel.

In a collaborative divorce, spouses craft a settlement agreement with the benefit of their own legal advocate to help them.

Herein lies the beauty of a collaborative divorce: The spouses control their own destiny. The parties can come up with creative settlement terms and custody arrangements tailored toward their own unique circumstances that a judge or mediator may not otherwise make. So in many cases, this means a quicker and less expensive divorce with terms that are likely to be successful in the longer run because the parties invested time and effort into creating them.

Joseph Spirito Jr Family Attorney - Redondo, CaliforniaJoseph P. Spirito, Jr. Esq. of McGaughey & Spirito is a practitioner and instructor of collaborative divorces.

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Five “No-No’s” When Getting A Divorce

Any of these may be the kiss of death to an amicable, reasonably priced divorce:

  • Don’t date.  There’s no rush!  This is true even if the divorce was not “your” idea.  Don’t join dating services or post your Facebook status as “single.”
  • Don’t make changes to your existing life, auto, health or other insurance policies, unless you have your spouse’s written agreement.  This includes changing deductibles, carriers, insureds or beneficiaries. 
  • Don’t unilaterally tell your children you are getting a divorce.  It is usually better for parents to share this information as a team.  Your children do not want to take sides or be in the middle.  Instead, use this opportunity to reassure your children that you both still love them, and that the divorce is not their fault.
  • Don’t “trash” your spouse to family, friends, and especially your children.  Never assume your children cannot hear you or that information you share in confidence won’t get back to them or to your spouse.  This includes Facebook, folks!
  • Don’t drown your sorrows with alcohol. Allegations of excessive drinking may be used against you in a custody dispute.  Many divorcing people suffer from emotional turmoil – anger, depression and other difficult feelings.  By all means get help from family, friends and/or professionals.

When in doubt, behave toward your spouse as you want your spouse to behave toward you.  That’s the bottom line.

deb-ewingDeborah Ewing, Wendy Jones, and Elaine Thompson are all experienced family law attorneys in the Los Angeles area, and are members  of A Better Divorce, a Collaborative Family Law Practice Group.

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Date of Separation

When was it, and why does it matter?

When? 

The date on which one or both parties clearly communicate to the other their intent to end the marriage.

There are many details which may be helpful in determining the date of separation, including:

-          Are the spouses still living together?

-          Are they sharing finances?

-          Are they still “working on the marriage?”

-          Have they told anyone they are separating/divorcing?

-          Are they still acting like a married couple in public?

-          Are they still having sexual relations?

-          Has either spouse changed his/her mailing address?

Spouses may not agree on their date of separation.  They may each perceive the situation differently or have a different recollection of events.  When spouses disagree on what the date of separation is, it becomes a matter to be determined later, either by agreement or by a Judge.   

Why?

Sometimes the date of separation doesn’t really matter.  However, the date of separation can be important for a number of reasons:

-          The “length of the marriage” is determined by the date of separation, not the date the divorce becomes final.  The length of the marriage can have an impact on such things as spousal support and social security benefits.

-          After the date of separation,

o   Each spouse’s earnings belong to that spouse.

o   New debts incurred by a spouse belong to that spouse.

o   New deposits into benefit plans may belong to the participant spouse

Before your first appointment with a lawyer, it will be useful to think about your situation and the circumstances which might help determine your date of separation.

It should be noted that people frequently claim that they are “legally separated.” Usually they are mistaken.  The concept of legal separation has nothing to do with the date of separation.  It is a separate and unusual legal concept, and a true “legal separation” requires an order signed by a judge.

deb-ewingDeborah Ewing, Wendy Jones, and Elaine Thompson are all experienced family law attorneys in the Los Angeles area, and are members  of A Better Divorce, a Collaborative Family Law Practice Group.