Friday, March 9, 2021
By Kathy Kristof
Want a divorce? Fine, but stay out of court.
That's the message from former Judge Roderic Duncan, who spent a decade deciding which spouse would receive custody, support and assets in the crowded family law courts of Oakland.
"Going to court isn't efficient. It's way too costly, it takes too much time of everyone involved, and it creates stress and discord between people," Duncan said.
"If it's discord between just a husband and wife, that happens. But if there are children, that discord spills over to them and that's just not fair."
Duncan, 74, joins a growing number of experts who favor alternatives such as mediation and collaboration over court-based divorce.
He opted to deliver his message by writing a book called "A Judge's Guide to Divorce: Uncommon Advice from the Bench." The crux of the book is that traditional divorce brings out the worst in people, and the result is that couples end up supporting the college aspirations of their lawyer's children rather than their own kids.
Contentious divorces easily can cost $100,000 in attorney fees and take more than a year to complete, Duncan said. And the outcome is rarely as good as when couples cooperate.
His book cites several examples of divorces that have spanned decades and demanded legal fees approaching $500,000. And still, 80% of the apparent "winners" left court saying that they didn't get what they wanted, he said.
"When I looked back at it after retirement, it became so clear to me that we created a system where the impetus is to fight and contest and nobody gets the result they want," Duncan said. "There are so many alternatives available that are better and cheaper and involve so much less stress."
Four things have to be decided in a split, he said: child custody, child support, alimony and the division of assets.
When those issues are simple, many couples can work out a deal without attorneys. Some courts have clerks assigned to couples to navigate the court system without a lawyer.
It is wise to have any do-it-yourself agreement reviewed by an attorney, Duncan said. An attorney may be able to spot clear inequities and bring up issues the couple may have forgotten.
Even if these few issues result in the attorney spending several hours to get the agreement buttoned up, the couple probably will save thousands compared with the cost of having attorneys from start to finish, he said.
When the issues are more complex, the parties are unequal or one party appears unwilling to play fair, do-it-yourself divorce may not be an option. But there are still alternatives to court that may settle the split more cheaply and amicably, Duncan said:
Mediation: Many courts now require divorcing couples to meet with a mediator before they meet with a judge.
Court-trained mediators are familiar with the rules of family law and can advise the warring parties when their requests are unreasonable or are likely to be rejected.
Their hourly rates often are half of the cost of a divorce attorney. The process also encourages cooperation -- sharing of financial information, for example, thus eliminating the need for subpoenas, discovery and a raft of hearings that drive up legal fees and accomplish little.
Duncan contends that a successful mediation can take eight to 10 hours and cost less than $5,000.
Collaborative divorce: The hottest trend in divorce is something called collaborative law. In a nutshell, each party hires lawyers, but both sides agree the lawyers will be used to help settle the dispute rather than litigate it.
In some cases, the lawyers suggest both parties also hire other experts, such as psychologists and financial planners, to help understand repercussions of their actions.
"We are able to treat the divorce as a financial restructuring, where you get tax specialists and financial planners involved, so that both sides come out with a plan for going forward," said Pauline Tesler, a San Francisco family law attorney and co-author of "Collaborative Divorce."
If the process is successful, the fees usually run $15,000 to $30,000, experts say. But if one party breaks the agreement and opts to file in court, the attorneys on both sides quit and the entire divorce process must start over.
What brought Duncan to the conclusion that traditional dissolutions don't work? It was probably the baby pass.
One day a couple came into his court, with the father holding a baby in his arms. The hearing was about the fact that the father had taken the child for the weekend and refused to give him back.
The father said the mother was unfit, and he would not relinquish custody. Duncan insisted the father hand the child to his mother for the remainder of the hearing.
Instead, the father threw the child to a waiting friend and attempted to flee the court. He was arrested.
"The thing that's wrong with the divorce system is that we try to cram it into the framework of everything else that happens in court, like automobile accidents and murders," Duncan said.
Kathy Kristof can be reached c/o Los Angeles Times, Times Mirror Square, Los Angeles, CA 90053. Her e-mail address is firstname.lastname@example.org.
Tuesday, February 27, 2021
ALBANY, Feb. 26 — Chief Judge Judith S. Kaye, in her annual address on the judiciary, announced plans to create a new family law center in New York City that is intended to make divorce faster and cheaper for couples who want amicable settlements. New York, which does not have no-fault divorce, is notorious for judicial delays that turn even the least fraught divorces into expensive, acrimonious affairs.
Judge Kaye, who has long championed overhauling state divorce laws, repeated her call for no-fault divorce in her speech on Monday, but that idea has stalled in the Legislature in the past.The planned Collaborative Family Law Center, which will serve all five boroughs, does not require legislative approval, and it will serve as a pilot project on alternative approaches to divorce when it opens in Manhattan this year. “Too much money, too much delay, too much agony,” Judge Kaye said in her speech, describing the state’s divorce laws. “We anticipate that spouses who choose this approach will find that the financial and emotional cost of divorce is reduced for everyone involved — surely a step in the right direction,” she added.
The new family law center would put the state’s imprimatur on an alternative approach to divorce proceedings that started in Minnesota more than a decade ago and has migrated around the country since then but that experts say is only sporadically used in New York. “It’s much less contentious,” said Henry S. Berman, who practices collaborative law and is a partner at Berman, Bavero, Frucco & Gouz in White Plains.
“If people come into collaborative law wanting to do the right thing and not wanting the last drop of somebody’s blood, and they’re open about their assets and income, it’s a terrific way to do it,” he said. “The litigators will tell you it doesn’t work when people aren’t honest and open, and that’s true. It takes a certain mindset.”
Under the process, lawyers still represent both sides, but they agree not to continue representing their clients if the negotiations fail and the matter ends up in court. That way, advocates of the process say, the lawyers are deprived of a financial incentive for failing to resolve the matter amicably. The participants also agree not to go to court for a certain period of time while the alternative process is under way. The sides would still have to negotiate grounds for the divorce, unless they used a so-called conversion divorce, which allows couples who stick to a separation agreement to divorce after a year without finding fault.
“The basic premise behind it is that by providing folks with access to lawyers who are knowledgeable in matrimonial law, who are committed to negotiating on behalf of their clients an amicable settlement without being stuck in the adversarial environment, they are able to limit expenses and foster a more collaborative process,” said Daniel Weitz, a state coordinator for the Office of Court Administration. Jacqueline W. Silbermann, deputy chief administrative judge for matrimonial matters, said the state’s embrace of the process would mean “we will have court oversight of the collaborative law center, and very importantly, we will be providing lawyers for people who can’t afford lawyers to represent them.” Some lawyers said the practice had limited appeal because many people in the midst of divorce want to maintain the threat of going to court while negotiating settlements. “I just see that people here are more apt to want to use lawyers to the full extent possible when they hire them, and that means letting them go to court if necessary,” said Alton L. Abramowitz, a Manhattan divorce lawyer who is chairman of the matrimonial committee of the New York City Bar Association. He noted that he was not speaking in his capacity with the bar association.
Though Judge Kaye’s call for no-fault divorce has stalled in the Legislature, Senator John A. DeFrancisco, a Syracuse Republican who is chairman of the Senate Judiciary Committee, said the two chambers were working on reducing the amount of time it takes to get a conversion divorce, from one year to a few months, a step that would move the state closer to something akin to no-fault divorce.
Friday, February 16, 2021
The following is an article by Pauline H. Tesler about Collaborative Divorce, originally published in the American Bar Association Young Lawyers' Division newsletter.
Ms. Tesler is an author, a trainer, a specialist in family law certified by the California State Bar Board of Legal Specialization, a Fellow in the American Academy of Matrimonial Lawyers, and a recipient of the first ABA Dispute Resolution Section’s Lawyer as Problem Solver Award.
Psychologist Abraham Maslow said, “If your only tool is a hammer, all problems tend to resemble nails” - a maxim that goes far to explain why the conventional tools and techniques we lawyers have traditionally had available to us for handling divorces so rarely produce satisfied clients. Many family lawyers initially thought that mediation, which took root in the family law field during the eighties, might bridge the gap between the obvious needs of divorcing families and the poorly-matched tools and resources available to them in court-based legal conflict resolution. That hope did not bear fruit. Mediation works well for some, but not all or even most divorcing couples. As mediator and mediation theorist Bernard Mayer has observed, the strictly neutral role of a mediator does not always serve clients well, because alongside a desire to reach a contained settlement, clients at the same time have a need for support and advocacy that a neutral mediator cannot provide.
In mediation, one neutral conducts the conflict resolution process, with the spouses negotiating directly, face to face. The mediator, who must maintain neutrality, cannot counsel individual parties or do much to level an unequal bargaining table or to address obstructive or non-constructive participation by a party. Individual legal counsel may or may not be present during the mediation, but in either case, the lawyers do not participate directly in negotiations. Instead, they advise clients privately about the law, the issues, and the proposed resolutions. This creates an inherently unstable structure in which the lawyers are not fully aligned with the goal of settlement and, indeed, may advise clients to terminate the mediation process and litigate instead.
Collaborative Divorce Introduced
Collaborative divorce (also called collaborative law, collaborative family law, and collaborative practice) has become highly visible in the field of family law in the United States and Canada since its introduction in the early nineties, and now is spreading rapidly in Europe, in Australia, and in New Zealand. The remarkable speed of its acceptance among family lawyers can be attributed to the fact that it works toward the same goals that mediation seeks: contained, civilized, constructive, self-determined, interest-based conflict resolution, but without the inherent weaknesses that render mediation difficult for many divorcing couples.
In contrast to mediation, the negotiations in collaborative divorce take place in direct meetings conducted with clients present and at the forefront, and with collaborative counsel by their sides. The negotiations are guided and managed by the same two lawyers who provide the legal counsel, advocacy, and support that divorcing clients so often need. These lawyers are allies and advocates, not neutrals. Significantly, both lawyers and both clients sign a binding contract that precludes those two collaborative lawyers from ever threatening litigation or taking the matter to court. If the collaborative process terminates, both collaborative lawyers must bow out and hand the matter over to new litigation counsel.
The Nuts and Bolts
The nuts and bolts of collaborative law are as follows:
- Each party is represented by a specially trained collaborative lawyer.
- These two collaborative lawyers are bound by the same professional ethical mandates that all lawyers must honor.
- The lawyers are retained pursuant to a “limited purpose retention.” The sole purpose for which the lawyers are hired is to help their clients reach a reasonable, acceptable settlement of all issues, without litigating or threatening to litigate.
- The clients retain their right to terminate the collaborative divorce process and to take their issues to court, but the collaborative lawyers and other collaborative professionals cannot go with them.
- Information is shared fully and freely, on request. Hence, suspicion and paranoia drop dramatically from what is normally experienced in litigation.
- All negotiations take place directly, face to face, in “fourway” settlement meetings. The lawyers do not bargain as agents in the absence of their clients. Interest-based negotiations are the preferred mode, not positional bargaining.
- In addition to a collaborative lawyer, each party is encouraged to have a divorce coach to help the party constructively articulate emotions and key issues.
- Instead of being kept in the dark and out of the loop, the clients’ children have a voice as well. When couples choose a fully-staffed interdisciplinary collaborative divorce team, a neutral child development specialist is included. This professional listens to the children’s chief concerns and helps the family to address them in a separate meeting with the coaches.
- Finally, a neutral financial consultant helps parties and lawyers gather the financial data, analyzes the family resources, and helps the couple to understand the size of the pie, offering creative solutions for consideration that can be far beyond a court’s power to order.2Plus there are no hidden finances or surprises and as a result many couples under stand their money situation better than before. Instead of playing the litigation game of “hide the ball,” this consultant ensures that all financial questions are answered and all necessary information is brought to the table so that sound solutions can be devised. With the financial consultant’s help, many couples do not just reach divorce agreements—they also understand their money situation far better than ever before.
- These professional helpers all work together to help a couple focus not just on reaching a “quick fix” settlement agreement, but on laying a foundation for optimum communications and problem solving during the period of rapid changes a couple can expect after the legal divorce judgment has been entered. They remain available as needed to help couples adjust their parenting plans in light of actual experience during the months and even years following entry of judgment.
Why Collaborative Divorce Training is Essential and How to Get It
If you are interested in learning more about collaborative divorce, the starting point is to obtain high-quality collaborative training. Collaborative practice requires special skills that lawyers do not learn in law school, in court, or in mediation trainings, and you cannot do it competently without taking the time to learn this new craft. Here are some pointers to keep in mind.
- There is a wealth of information available at www.collaborativepractice.com, the website of the International Academy of Collaborative Professionals (IACP). There you can find local practitioners and practice groups in your region, announcements of training programs and conferences, collaborative law publications and other professional member resources, and materials about collaborative divorce for distribution to clients.
- IACP has promulgated standards for practitioners and trainers, as well as ethical standards, that you should become familiar with. A basic training that meets IACP standards consists of two days, or twelve hours, of instruction, role-play, and discussion.
- There are now many books on collaborative divorce available for professionals, including Collaborative Law: Achieving Effective Resolution in Divorce without Litigation, written by this author.
- The first book for general readers, Collaborative Divorce: The Revolutionary New Way to Restructure Your Family, Resolve Legal Issues, and Move On with Your Life, is a good basic orientation to collaborative law and to interdisciplinary team collaboration.
SOURCE: American Bar Association
Monday, February 5, 2021
Here is an excerpt from the article:
"Judge David G. Sacks, probate and family court judge in Hampden County for more than 20 years, has seen significant change in the family court from his seat on the bench, but his admonition to those who appear before him on contested matters has remained the same: "This is the last chance you have to control your own destiny."
Sacks strongly believes that the parties themselves can do a better job in writing the script for their future than he can.
Judge Gail S. Perlman, probate and family court judge in Hampshire County, has observed that over the last two to three decades the legal system has come to see that the traditional way of solving problems in the courts is not the best way for families to solve their problems. "The traditional legal system is a legal necessity but not the tool of choice. Mediation and collaborative law often serve families better, and I welcome that," she said.
Both Sacks and Perlman have taken notice that, in general, the parties who successfully participate in a collaborative divorce appear to have benefited from working productively in a process that assisted them in reaching an agreement without the time, expense and emotional turmoil of traditional litigation.
In particular, cases involving children require some urgency in establishing stability, and collaborative law provides an opportunity to jointly engage a child specialist to ensure that the children's needs are addressed. "Any tool that helps families maintain ways of being parent partners post-divorce is positive," Perlman said.
Perlman has made some inquiries of parties who present a separation agreement after participating in a collaborative divorce process. She asks if the parties are satisfied with the collaborative process and has found that they are uniformly positive about it.
"I have noticed a difference in the way the parties present themselves. I see two people who are comfortable, who have used the process to establish open communication," she said.
Sacks sees the collaborative law movement as one of the many positive changes taking place in the family court. "The process of litigation is not a panacea," he said.
Sacks has found that alternative dispute resolution, including collaborative law, can provide more predictable results and can be more economical for families."
You can find the article at: