Many couples go to great lengths to hide an imminent separation and pending divorce from their children. For emotional and financial reasons, spouses continue to live in the same house, while struggling over how, where and when to break the difficult news. Couples who have not yet decided to divorce face the most difficult dilemma of all. It is seemingly impossible to talk to your children about divorce where no decision has been made. This is a common concern faced by many who are contemplating separation or divorce.
What many couples do not realize is that, no matter how hard they struggle for civility in front of their children, the secret is already out. Children are extremely adept at sensing the tension between their parents. More so than parents, especially those struggling with their own emotional pain, often realize.
Children do not have to hear their parents argue to sense that something is amiss. Often, it is the silence, the forced civility and the air of tension at mealtimes or when their parents are in the same room that serve as clues. Small children may not be able to understand what is happening, but they can sense when their parents ties, which represent their sense of security, are threatened. Teenagers, seemingly self involved in their world of friends, electronics and text messenging, have an even better understanding of the dynamics and often receive the news as confirmation of what they already suspect.
I have spoken to several therapists about the difficult issue of how and what to tell the kids. The consensus appears to be that children should be told only the basics and only to the extent that their parents know their decision. Spouses who decide to separate need to tell their children they will be living apart but be upfront about the fact that there has been no decision to divorce. The children’s primary concerns, in cases of separation or divorce, are whether they will continue to see the parent who is leaving the house and whether their surroundings and activities will change. Parents should answer these questions honestly and stress that, even if living situations will change, the children will still have contact with the parent who is moving out and that, as much as possible, the parents will try to keep things such as home and school the same for their children.
There is no good time, place or manner for discussing divorce with children. Being upfront, age appropriate and creating an open line of communication are extremely important. And don’t be surprised if your children are not surprised to hear the news. Your kids see and hear everything, even the unspoken words.
Monday, March 24, 2008
Friday, February 8, 2008
The Seven Deadly Sins of Divorcing Men
Seven Deadly Sins of Divorcing Men
In the last article, I listed the seven common mistakes women make in the midst of a divorce. Men are also prone to errors that can have a lasting impact on their divorce settlements or lives beyond the final judgment. Below is a list of the seven deadly sins of men, or Dad’s, or Ex-Husband’s, whichever the case or appropriate label may be.
1. Fighting for principle: “I will go to court at all costs” and “it is the principle of the thing” are two statements I hear from male clients in negotiations gone south or cases headed to trial. While I never have and never would tell anyone to go against their principles, I caution divorcing clients about the price tag attached to their principles and whether the value gained is worth what is lost as a result. Anyone who finds themselves fighting for “the principle of the thing” should ask themselves what they are really fighting for and if the “at all cost” is worth it.
2. Underestimating child support expenses: Florida’s child support guidelines are supposed to be the anticipated amount each parent should contribute towards the support of their children. But I have seen few, if any Moms or Dads who feel the child support number is “just right” or even right at all. On Dad’s side, there is a common misconception that child support payments are used to fund the now extravagant lifestyle of Mom, rather than benefit the children. In the average household, this is simply not the case. In many instances, child support covers food, clothing, housing and all those little extras that come along, such as school field trips, projects, lunch money, etc. As all parents know, those expenses really do add up. Unless Dad is a professional athlete or celebrity, the guideline amount, while not exactly right in either party’s mind, will not allow Mom to purchase diamonds and firs.
3. The joint custody battle: Websites are devoted to this topic and it’s a popular question in my office as well. When Dad comes in and states that he wants joint custody, I always ask what that means to him. I then ask if he’s comfortable committing to living within a short distance from mom and the kids until they reach 18. In a good number of cases, rotating custody works quite well. But there are those who do not understand the concept or who think they are limited to either “joint” custody or being the “weekend dad”. Unless there are extraordinary circumstances to justify sole custody, Dad remains a decision maker, stays in frequent contact with the kids and continues to coach soccer, softball or any other activities he enjoyed with the kids, with or without “joint custody”. There are many alternatives in between the seemingly all or nothing positions and it is important that Dad know about and consider these options before taking a stance or declaring a “custody battle”.
4. Taking control: While more and more marriages involve equal income earners, or Mom’s outearning Dad’s, this is a popular mistake made by divorcing Dads in what are usually labeled “traditional marriages.” Dad is the breadwinner and decision maker. This Dad may not want to give Mom her share of assets or child support or alimony, whatever the case may be, as Dad believes Mom will not be financially responsible. This Dad forgets the Declaration of Independence portion of divorce- the concept that both parties live separate and free. Mom is responsible for herself, and the kids if the kids live with her. Courts do not allow Dad to monitor Mom’s spending and do not require Mom to account to Dad for this spending. The judge will impose this requirement and fighting for it is a sure way to lose.
5. The alimony dilemma: There are many alimony jokes for a reason. No one likes to pay it. This includes men and women, who are paying alimony more and more these days. But, in that “traditional” model again, its Dad paying alimony to Mom, or, in cases where there are no children, Ex-Husband paying Ex-Wife. Florida law provides guidelines for whether alimony will be paid. In some facts and circumstances, alimony is a given, and, in some of these instances, permanent alimony is guaranteed. I’ve had clients who would do anything to “buy out” this alimony obligation and some that just had to accept it as reality. In some financial circumstances, it is possible to make a lump sum buy out of alimony. The question is whether it is in the parties best interest. This, of course, depends on the facts and circumstances. The no alimony at all costs Dad/Ex-Husband should seek the advice of a trusted attorney to and, in many instances, an accountant, to find out the options or whether there are options in the alimony dilemma.
6. Separated and not equal: This, again, addresses the “traditional” situation of Dad as breadwinner. Dad worked and brought home the paycheck. Mom may have stayed home and raised the kids. Or maybe someone else raised the kids. Or maybe there were no kids and Mom, or, rather, Ex Wife, just stayed home. This Dad/ Ex Husband thinks that since he earned more than Mom/ Ex Wife that he gets a greater share of the assets. In the majority of cases in Florida, what was earned by the marriage, by Dad, Mom, Ex Husband, Ex Wife, interest, appreciation or otherwise, is marital and what is marital is divided equally. If Mom worked less than Dad, or Ex Wife did not work at all, spouses are equal partners in the marriage. Dad may hate it, Ex-Husband may hate it even more, but this is the likely outcome.
7. Not giving an inch to avoid the extra mile: This mistake is similar to the principle argument that can derail settlement or prolong a case beyond what may be necessary. There are often issues which are minor in the big picture but which become emotional sticking points. When clients negotiate, they are asked to give up certain things and make concessions in order to reach an agreement. What can happen is that Mom/Ex Wife is “sweating the small stuff” as discussed in the previous article and asking for one seemingly little extra that Dad/Ex Husband doesn’t want to give, if for no other reason than that Dad/Ex Husband feels he has already given too much. A fine example of a disagreement that isn’t worth the time spent arguing it is the division of frequent flier miles, which have minimal cash value. But when this one last request for ½ of the hard earned miles comes in at the end of a long negotiation, it may often turn into a sticking point and cause both sides to spend more money discussing the item than what its really worth. In some instances, there is greater value saved by giving in than the value that is lost by continuing to disagree.
Divorce is undoubtedly emotional and men and women, generally speaking, react differently in the face of the emotional crisis. While the reaction is understandable, the financial and prolonged emotional consequence can be avoided in some instances. The key to avoiding these mistakes lies in knowing when to advocate for something and knowing when to give in.
In the last article, I listed the seven common mistakes women make in the midst of a divorce. Men are also prone to errors that can have a lasting impact on their divorce settlements or lives beyond the final judgment. Below is a list of the seven deadly sins of men, or Dad’s, or Ex-Husband’s, whichever the case or appropriate label may be.
1. Fighting for principle: “I will go to court at all costs” and “it is the principle of the thing” are two statements I hear from male clients in negotiations gone south or cases headed to trial. While I never have and never would tell anyone to go against their principles, I caution divorcing clients about the price tag attached to their principles and whether the value gained is worth what is lost as a result. Anyone who finds themselves fighting for “the principle of the thing” should ask themselves what they are really fighting for and if the “at all cost” is worth it.
2. Underestimating child support expenses: Florida’s child support guidelines are supposed to be the anticipated amount each parent should contribute towards the support of their children. But I have seen few, if any Moms or Dads who feel the child support number is “just right” or even right at all. On Dad’s side, there is a common misconception that child support payments are used to fund the now extravagant lifestyle of Mom, rather than benefit the children. In the average household, this is simply not the case. In many instances, child support covers food, clothing, housing and all those little extras that come along, such as school field trips, projects, lunch money, etc. As all parents know, those expenses really do add up. Unless Dad is a professional athlete or celebrity, the guideline amount, while not exactly right in either party’s mind, will not allow Mom to purchase diamonds and firs.
3. The joint custody battle: Websites are devoted to this topic and it’s a popular question in my office as well. When Dad comes in and states that he wants joint custody, I always ask what that means to him. I then ask if he’s comfortable committing to living within a short distance from mom and the kids until they reach 18. In a good number of cases, rotating custody works quite well. But there are those who do not understand the concept or who think they are limited to either “joint” custody or being the “weekend dad”. Unless there are extraordinary circumstances to justify sole custody, Dad remains a decision maker, stays in frequent contact with the kids and continues to coach soccer, softball or any other activities he enjoyed with the kids, with or without “joint custody”. There are many alternatives in between the seemingly all or nothing positions and it is important that Dad know about and consider these options before taking a stance or declaring a “custody battle”.
4. Taking control: While more and more marriages involve equal income earners, or Mom’s outearning Dad’s, this is a popular mistake made by divorcing Dads in what are usually labeled “traditional marriages.” Dad is the breadwinner and decision maker. This Dad may not want to give Mom her share of assets or child support or alimony, whatever the case may be, as Dad believes Mom will not be financially responsible. This Dad forgets the Declaration of Independence portion of divorce- the concept that both parties live separate and free. Mom is responsible for herself, and the kids if the kids live with her. Courts do not allow Dad to monitor Mom’s spending and do not require Mom to account to Dad for this spending. The judge will impose this requirement and fighting for it is a sure way to lose.
5. The alimony dilemma: There are many alimony jokes for a reason. No one likes to pay it. This includes men and women, who are paying alimony more and more these days. But, in that “traditional” model again, its Dad paying alimony to Mom, or, in cases where there are no children, Ex-Husband paying Ex-Wife. Florida law provides guidelines for whether alimony will be paid. In some facts and circumstances, alimony is a given, and, in some of these instances, permanent alimony is guaranteed. I’ve had clients who would do anything to “buy out” this alimony obligation and some that just had to accept it as reality. In some financial circumstances, it is possible to make a lump sum buy out of alimony. The question is whether it is in the parties best interest. This, of course, depends on the facts and circumstances. The no alimony at all costs Dad/Ex-Husband should seek the advice of a trusted attorney to and, in many instances, an accountant, to find out the options or whether there are options in the alimony dilemma.
6. Separated and not equal: This, again, addresses the “traditional” situation of Dad as breadwinner. Dad worked and brought home the paycheck. Mom may have stayed home and raised the kids. Or maybe someone else raised the kids. Or maybe there were no kids and Mom, or, rather, Ex Wife, just stayed home. This Dad/ Ex Husband thinks that since he earned more than Mom/ Ex Wife that he gets a greater share of the assets. In the majority of cases in Florida, what was earned by the marriage, by Dad, Mom, Ex Husband, Ex Wife, interest, appreciation or otherwise, is marital and what is marital is divided equally. If Mom worked less than Dad, or Ex Wife did not work at all, spouses are equal partners in the marriage. Dad may hate it, Ex-Husband may hate it even more, but this is the likely outcome.
7. Not giving an inch to avoid the extra mile: This mistake is similar to the principle argument that can derail settlement or prolong a case beyond what may be necessary. There are often issues which are minor in the big picture but which become emotional sticking points. When clients negotiate, they are asked to give up certain things and make concessions in order to reach an agreement. What can happen is that Mom/Ex Wife is “sweating the small stuff” as discussed in the previous article and asking for one seemingly little extra that Dad/Ex Husband doesn’t want to give, if for no other reason than that Dad/Ex Husband feels he has already given too much. A fine example of a disagreement that isn’t worth the time spent arguing it is the division of frequent flier miles, which have minimal cash value. But when this one last request for ½ of the hard earned miles comes in at the end of a long negotiation, it may often turn into a sticking point and cause both sides to spend more money discussing the item than what its really worth. In some instances, there is greater value saved by giving in than the value that is lost by continuing to disagree.
Divorce is undoubtedly emotional and men and women, generally speaking, react differently in the face of the emotional crisis. While the reaction is understandable, the financial and prolonged emotional consequence can be avoided in some instances. The key to avoiding these mistakes lies in knowing when to advocate for something and knowing when to give in.
Tuesday, February 5, 2008
The Seven Deadly Sins of Divorcing Women
The Seven Deadly Sins of Divorcing Women
We have all heard of the seven deadly sins, and most of us can name at least a few. When it comes to women and divorce, the transgressions are not gluttony, envy or pride, but they can be quite damaging. Below is a list of what I call the seven deadly sins, or biggest mistakes commonly committed by divorcing women.
1. Asking for too little: Women often feel guilty about divorce and responsible for their spouse. As a result, women often shortchange themselves in divorce settlements, accepting less than they deserve or, in some cases, less than what they need to live. I strongly encourage my clients to work towards settlement, but also stress that settlement must be fair. Under Florida law, both parties are equal partners to a marriage and there is no fault in ending it. The main goal of settlement is not just to close the marriage chapter but to make sure both parties have enough resources to go forward. Settling for less than an equal share and not enough for the wife and children to live on is simply not fair.
2. Asking too much: On the opposite side of the spectrum, some women have unrealistic expectations about what to expect from a divorce settlement. Rather than listening to their lawyers, many seek the advice of friends, relatives and others who divulge the details of their divorce settlements as though they are the norm, rather than the outcome of their specific set of circumstances. Many couples spend tens or hundreds of thousands of dollars litigating their divorce because one party believes they are entitled to more than the law will allow. Much like the deadly sin of greed, unrealistic expectations can be emotionally and financially costly.
3. Avoiding confrontation: By nature and nurture, women are taught to be non-confrontational while men are taught to be assertive. Men tend to have less trouble taking a strong stand while negotiating or litigating. Many women tend to want to keep the peace and, even in the midst of a divorce, will back off from asserting a reasonable position or pursuing something to which they are entitled. While most divorces can, and should, be settled, there are instances where it is necessary to go forward. In a highly emotional state, it is difficult, if not impossible to know the difference. But not taking a stand can be as costly an error as taking an unreasonable one.
4. Sweating the small stuff: Divorce is emotional for both parties, but men and women handle it differently. Men tend to hide their emotions by fighting or withdrawing while women allow their feelings greater reign. While this is an important part of the healing process, it leads many women to focus on details which, while important, are not legally relevant. This, in turn, leads to a lack of focus on the important aspects and increased costs as a result of fighting over things that are not worth the money spent to litigate them.
5. Paying too high a price: One of the first questions my female clients ask is whether they can keep the home. One of the first questions I ask them is whether they should. Many women will sacrifice everything to remain in the marital home. While it is the right decision if financial circumstances allow for it, maintaining a large mortgage and household expenses can leave a woman with an overwhelming financial burden. Deciding to stay in the home, either by buying out your spouse or taking the home in place of alimony, is not a decision that should be made for emotional reasons, but for sound financial ones.
6. Forgetting that knowledge is power: More and more women are wage earners, but a significant percentage still have no knowledge of joint assets and finances. One party, in many cases, the husband, makes all financial decisions. At the outset of divorce, women in this situation spend considerable time and money investigating the financial picture and, in worst case situations, trying to locate hidden assets. Those who are equal partners in financial decisions or, at least, have knowledge of money expenses, accounts and assets, are in a far better bargaining postion.
7. Waiting too long: Many people, men and women alike, take a long time to reach the difficult decision to end a marriage. Trying everything to make it work, a step I highly support, is one thing; but there are those who, when faced with the knowledge that their partner is depleting assets or even planning for divorce, take the hiding-their-head-in-the-sand approach and do nothing for a period of time. It is understandable that it takes a great deal of strength to reach the decision to divorce, but, in these circumstances, waiting too long can prove disastrous. By the time these women file for divorce, debts may have become too large to handle without liquidating assets and money may have disappeared without a trace.
Finding the right lawyer at the right time can help avoid these costly mistakes. A knowledgeable and neutral advocate can provide much needed advice at this difficult time. Even if the woman has engaged in any of this costly behavior, a divorce attorney can help reverse the damage before an agreement is reached and the case is closed, preventing a costly mistake from having a permanent outcome.
We have all heard of the seven deadly sins, and most of us can name at least a few. When it comes to women and divorce, the transgressions are not gluttony, envy or pride, but they can be quite damaging. Below is a list of what I call the seven deadly sins, or biggest mistakes commonly committed by divorcing women.
1. Asking for too little: Women often feel guilty about divorce and responsible for their spouse. As a result, women often shortchange themselves in divorce settlements, accepting less than they deserve or, in some cases, less than what they need to live. I strongly encourage my clients to work towards settlement, but also stress that settlement must be fair. Under Florida law, both parties are equal partners to a marriage and there is no fault in ending it. The main goal of settlement is not just to close the marriage chapter but to make sure both parties have enough resources to go forward. Settling for less than an equal share and not enough for the wife and children to live on is simply not fair.
2. Asking too much: On the opposite side of the spectrum, some women have unrealistic expectations about what to expect from a divorce settlement. Rather than listening to their lawyers, many seek the advice of friends, relatives and others who divulge the details of their divorce settlements as though they are the norm, rather than the outcome of their specific set of circumstances. Many couples spend tens or hundreds of thousands of dollars litigating their divorce because one party believes they are entitled to more than the law will allow. Much like the deadly sin of greed, unrealistic expectations can be emotionally and financially costly.
3. Avoiding confrontation: By nature and nurture, women are taught to be non-confrontational while men are taught to be assertive. Men tend to have less trouble taking a strong stand while negotiating or litigating. Many women tend to want to keep the peace and, even in the midst of a divorce, will back off from asserting a reasonable position or pursuing something to which they are entitled. While most divorces can, and should, be settled, there are instances where it is necessary to go forward. In a highly emotional state, it is difficult, if not impossible to know the difference. But not taking a stand can be as costly an error as taking an unreasonable one.
4. Sweating the small stuff: Divorce is emotional for both parties, but men and women handle it differently. Men tend to hide their emotions by fighting or withdrawing while women allow their feelings greater reign. While this is an important part of the healing process, it leads many women to focus on details which, while important, are not legally relevant. This, in turn, leads to a lack of focus on the important aspects and increased costs as a result of fighting over things that are not worth the money spent to litigate them.
5. Paying too high a price: One of the first questions my female clients ask is whether they can keep the home. One of the first questions I ask them is whether they should. Many women will sacrifice everything to remain in the marital home. While it is the right decision if financial circumstances allow for it, maintaining a large mortgage and household expenses can leave a woman with an overwhelming financial burden. Deciding to stay in the home, either by buying out your spouse or taking the home in place of alimony, is not a decision that should be made for emotional reasons, but for sound financial ones.
6. Forgetting that knowledge is power: More and more women are wage earners, but a significant percentage still have no knowledge of joint assets and finances. One party, in many cases, the husband, makes all financial decisions. At the outset of divorce, women in this situation spend considerable time and money investigating the financial picture and, in worst case situations, trying to locate hidden assets. Those who are equal partners in financial decisions or, at least, have knowledge of money expenses, accounts and assets, are in a far better bargaining postion.
7. Waiting too long: Many people, men and women alike, take a long time to reach the difficult decision to end a marriage. Trying everything to make it work, a step I highly support, is one thing; but there are those who, when faced with the knowledge that their partner is depleting assets or even planning for divorce, take the hiding-their-head-in-the-sand approach and do nothing for a period of time. It is understandable that it takes a great deal of strength to reach the decision to divorce, but, in these circumstances, waiting too long can prove disastrous. By the time these women file for divorce, debts may have become too large to handle without liquidating assets and money may have disappeared without a trace.
Finding the right lawyer at the right time can help avoid these costly mistakes. A knowledgeable and neutral advocate can provide much needed advice at this difficult time. Even if the woman has engaged in any of this costly behavior, a divorce attorney can help reverse the damage before an agreement is reached and the case is closed, preventing a costly mistake from having a permanent outcome.
Thursday, January 3, 2008
What's In It For Free: Are Free Consultations Really Worth It?
We are living in the land of the free in this day and age, more and more than ever. It seems that every provider of goods and services is giving something away for free. There are free samples, free estimates, even a free month’s rent when you sign an apartment lease. Many lawyers are following the consumer driven trend and offering free legal consultations.
Certain areas of the law, such as personal injury, where a lawyer receives a contingency fee (he/she only gets paid if money is recovered for the client), have always gone the way of the free consultation route. Traditionally, divorce lawyers have always charged for initial consultations. One of the main reasons is because, once a divorce attorney meets with one of the parties, the attorney client privilege applies and the attorney cannot represent the other party. Knowing this, some parties embark on a course of lawyer shopping- meeting with all of the top lawyers in the county to prevent their spouse from hiring these attorneys. The other reason is that divorce attorneys are paid by the hour and only for the hours that they work, unlike personal injury lawyers who get a percentage of the recovery in a case. Giving away a free hour of one’s time would not be an effective business practice since, as the saying goes, there are only so many hours in a day.
Despite the economic considerations, some divorce attorneys offer free consultations. But is a free consultation the same as getting free legal advice? Much like the saying “there’s no such thing as a free lunch” it is equally true that there is no such thing as a free consultation. Or, more correctly stated, there is no such thing as free legal advice. Most free consultations are merely attempts to sell the potential client on the particular attorney or law firm. The consultations are kept short, usually 30 minutes or less, because the lawyer is not being paid for his/her time. The client is usually provided with general information concerning divorce and vague promises concerning possible outcomes that may or may not happen. The whole purpose of the “free consultation”, from the lawyers perspective, is not to offer the potential client the free benefit of the lawyers training, experience or advice, but to get the potential client to sign a retainer letter and pay a fee. There is little, if any, advice being offered.
Divorces are complex, especially where finances and children are involved. In order to provide legal advice, a lawyer needs to know the entire picture and needs to help the client determine what is most important to him/her. In cases involving children, long term marriages and/or a significant amount of assets, it would be difficult, if not impossible, to do this in 30 minutes or less.
Divorce is one of the costliest changes in a person’s life. It is natural for someone beginning the process to be concerned about their financial resources. Because divorce is so personal and has a permanent impact on the future, many people prefer to interview at least a couple of attorneys to find out if they feel comfortable with the attorney and whether they feel that he/she will be able to handle their case. A free consultation seems to be a cost effective way to proceed. But, given what is at stake, it might be a more prudent decision to choose a divorce attorney after having the opportunity to discuss your situation and concerns in detail.
Certain areas of the law, such as personal injury, where a lawyer receives a contingency fee (he/she only gets paid if money is recovered for the client), have always gone the way of the free consultation route. Traditionally, divorce lawyers have always charged for initial consultations. One of the main reasons is because, once a divorce attorney meets with one of the parties, the attorney client privilege applies and the attorney cannot represent the other party. Knowing this, some parties embark on a course of lawyer shopping- meeting with all of the top lawyers in the county to prevent their spouse from hiring these attorneys. The other reason is that divorce attorneys are paid by the hour and only for the hours that they work, unlike personal injury lawyers who get a percentage of the recovery in a case. Giving away a free hour of one’s time would not be an effective business practice since, as the saying goes, there are only so many hours in a day.
Despite the economic considerations, some divorce attorneys offer free consultations. But is a free consultation the same as getting free legal advice? Much like the saying “there’s no such thing as a free lunch” it is equally true that there is no such thing as a free consultation. Or, more correctly stated, there is no such thing as free legal advice. Most free consultations are merely attempts to sell the potential client on the particular attorney or law firm. The consultations are kept short, usually 30 minutes or less, because the lawyer is not being paid for his/her time. The client is usually provided with general information concerning divorce and vague promises concerning possible outcomes that may or may not happen. The whole purpose of the “free consultation”, from the lawyers perspective, is not to offer the potential client the free benefit of the lawyers training, experience or advice, but to get the potential client to sign a retainer letter and pay a fee. There is little, if any, advice being offered.
Divorces are complex, especially where finances and children are involved. In order to provide legal advice, a lawyer needs to know the entire picture and needs to help the client determine what is most important to him/her. In cases involving children, long term marriages and/or a significant amount of assets, it would be difficult, if not impossible, to do this in 30 minutes or less.
Divorce is one of the costliest changes in a person’s life. It is natural for someone beginning the process to be concerned about their financial resources. Because divorce is so personal and has a permanent impact on the future, many people prefer to interview at least a couple of attorneys to find out if they feel comfortable with the attorney and whether they feel that he/she will be able to handle their case. A free consultation seems to be a cost effective way to proceed. But, given what is at stake, it might be a more prudent decision to choose a divorce attorney after having the opportunity to discuss your situation and concerns in detail.
Monday, October 29, 2007
A too simple divorce: there may be such a thing
Many people, thankfully, are looking for a less emotionally charged way to divorce. I say thankfully because a long drawn out court battle leaves everyone drained, financially and emotionally, and is always harmful to children. So I commend anyone who seeks an alternative to a messy court battle, even in cases where emotions run high and there are many financial and child related issues to be resolved. However, in their desire to keep things low cost and low emotion, couples and individuals may cut too many corners and not seek necessary legal or financial advice. Since a divorce settlement, in most cases, impacts the rest of their lives, the results can be disasterous.
Many people, even those who strive for an amicable resolution, still believe divorce is an "all or nothing" concept. The parties either hire lawyers or they do it themselves. There are a host of online websites and companies offering "do it yourself" divorces for a small fee. The people utilizing these services are not just those with little income. In many cases, individuals and couples in higher income brackets are so frightened by the potential cost of divorce that they opt for these seemingly cost effective solutions, not realizing the high cost that may result later on due to an incomplete or unfair settlement.
Those facing divorce need to be aware that there are other options. While parties may be able to do their divorce themselves, through mediation or, in some cases, by filling out the paperwork themselves, there are many reasons to consult with a lawyer beforehand, or, at the very least, before signing any agreement.
For couples using the "pro se" mediation process, where a neutral mediator helps the parties reach an agreement, consulting with a lawyer and/or a financial advisor may be a crucial first step to help the party determine what his/her legal rights are and what the financial picture would look like. Many times in mediation, one person has a greater understanding of the parties finances. The other person may not even work at all and may have no idea of what their expenses will be. If this person were to enter into an agreement providing for little or no support, he or she may be left in a compromised financial situation. As a mediator, I encourage parties to do this both before mediation and before signing an agreement.
Many people are concerned that, by "involving lawyers", they will end up in court, paying a great deal in fees. But this does not have to be the case. Each party can consult with a lawyer, as many or as few times as needed, and pay for the lawyer's services on a per-visit basis. Some lawyers will not do this, but there are many that will. For those who opt for the "pro se" route, it is important to seek out the legal advice they feel they need. It is also important to get information about the lawyer before going to an intial meeting, such as, how much time the lawyer will spend evaluating the case and going over options, and, if so, what the fee will be.
Divorce, like many aspects of life, does not have to be an all or nothing proposition. In too many instances, the all or nothing approach can leave a party with little or nothing or less than a fair share. While do it yourself may work for home improvement, it may not be the best course of action for dissolution. Before deciding to "go it alone", anyone facing a divorce should make sure he or she has enough knowledge and information to make the important decisions that will impact the rest of their lives.
Many people, even those who strive for an amicable resolution, still believe divorce is an "all or nothing" concept. The parties either hire lawyers or they do it themselves. There are a host of online websites and companies offering "do it yourself" divorces for a small fee. The people utilizing these services are not just those with little income. In many cases, individuals and couples in higher income brackets are so frightened by the potential cost of divorce that they opt for these seemingly cost effective solutions, not realizing the high cost that may result later on due to an incomplete or unfair settlement.
Those facing divorce need to be aware that there are other options. While parties may be able to do their divorce themselves, through mediation or, in some cases, by filling out the paperwork themselves, there are many reasons to consult with a lawyer beforehand, or, at the very least, before signing any agreement.
For couples using the "pro se" mediation process, where a neutral mediator helps the parties reach an agreement, consulting with a lawyer and/or a financial advisor may be a crucial first step to help the party determine what his/her legal rights are and what the financial picture would look like. Many times in mediation, one person has a greater understanding of the parties finances. The other person may not even work at all and may have no idea of what their expenses will be. If this person were to enter into an agreement providing for little or no support, he or she may be left in a compromised financial situation. As a mediator, I encourage parties to do this both before mediation and before signing an agreement.
Many people are concerned that, by "involving lawyers", they will end up in court, paying a great deal in fees. But this does not have to be the case. Each party can consult with a lawyer, as many or as few times as needed, and pay for the lawyer's services on a per-visit basis. Some lawyers will not do this, but there are many that will. For those who opt for the "pro se" route, it is important to seek out the legal advice they feel they need. It is also important to get information about the lawyer before going to an intial meeting, such as, how much time the lawyer will spend evaluating the case and going over options, and, if so, what the fee will be.
Divorce, like many aspects of life, does not have to be an all or nothing proposition. In too many instances, the all or nothing approach can leave a party with little or nothing or less than a fair share. While do it yourself may work for home improvement, it may not be the best course of action for dissolution. Before deciding to "go it alone", anyone facing a divorce should make sure he or she has enough knowledge and information to make the important decisions that will impact the rest of their lives.
Thursday, October 25, 2007
Miami-Dade County Family Court Approves Collaborative Practice
In an Administrative Order signed October 19, 2007, Chief Judge Joseph Farina signed an Administrative Order authorizing the collaborative process dispute resolution model in all dissolution and other family related matters.
The Order follows on the footsteps of a Brevard County Judge who recently signed a similar order. Although the Miami Dade County Court differs somewhat from the Brevard Court in that Miami-Dade does not have allow any Court intervention in a collaborative matter and has not, as other Courts have done, allow parties in a collaborative matter for either file a proceeding with the Court or resolve any temporary issues which may arise. Other courts have followed the lead of San Diego in establishing a collaborative court to resolve disputes which may arise during the collaborative process. Miami Dade has opted to keep the court completely out of the process, until such time as the parties either reach agreement or the process breaks down. The Administrative Order does provide that any temporary agreements reached by the parties will be ratified by the Court if the process breaks down and the parties proceed to litigation.
The Order also authorizes withdrawal of the parties attorneys in the event the process breaks down. This aspect of collaborative practice has been criticized by many Collaborative Law skeptics and ruled unethical by the Colorado Bar. The Miami Dade Order appears to endorse this aspect of Collaborative Law by requiring withdrawal of the parties attorneys in the event the process breaks down.
The Order also provides some guidelines for the financial and mental health professionals who are sometimes retained as part of the collaborative process.
Although the Florida Bar has yet to fully endorse or pass any collaborative law statute to date, it appears that the Florida Courts are clearly in favor of a collaborative alternative to the traditional model of divorce, which has been sharply criticized by these Courts in cases where excessive and expensive litigation has resulted.
The Administrative Order comes as a surprise and a tremendous positive gain for Collaborative practitioners, who have struggled with gaining judicial recognition for Collaborative Practice. It remains to be seen whether Broward County will follow suit, so to speak, with a similar Order and whether the Orders of the Courts will gain the attention and recognition of the Florida Bar, allowing this much needed alternative to gain legal recognition and, most importantly, regulation.
The Order follows on the footsteps of a Brevard County Judge who recently signed a similar order. Although the Miami Dade County Court differs somewhat from the Brevard Court in that Miami-Dade does not have allow any Court intervention in a collaborative matter and has not, as other Courts have done, allow parties in a collaborative matter for either file a proceeding with the Court or resolve any temporary issues which may arise. Other courts have followed the lead of San Diego in establishing a collaborative court to resolve disputes which may arise during the collaborative process. Miami Dade has opted to keep the court completely out of the process, until such time as the parties either reach agreement or the process breaks down. The Administrative Order does provide that any temporary agreements reached by the parties will be ratified by the Court if the process breaks down and the parties proceed to litigation.
The Order also authorizes withdrawal of the parties attorneys in the event the process breaks down. This aspect of collaborative practice has been criticized by many Collaborative Law skeptics and ruled unethical by the Colorado Bar. The Miami Dade Order appears to endorse this aspect of Collaborative Law by requiring withdrawal of the parties attorneys in the event the process breaks down.
The Order also provides some guidelines for the financial and mental health professionals who are sometimes retained as part of the collaborative process.
Although the Florida Bar has yet to fully endorse or pass any collaborative law statute to date, it appears that the Florida Courts are clearly in favor of a collaborative alternative to the traditional model of divorce, which has been sharply criticized by these Courts in cases where excessive and expensive litigation has resulted.
The Administrative Order comes as a surprise and a tremendous positive gain for Collaborative practitioners, who have struggled with gaining judicial recognition for Collaborative Practice. It remains to be seen whether Broward County will follow suit, so to speak, with a similar Order and whether the Orders of the Courts will gain the attention and recognition of the Florida Bar, allowing this much needed alternative to gain legal recognition and, most importantly, regulation.
Tuesday, September 18, 2007
Florida is one step closer to recognizing Collaborative Law
Brevard County Judge Issues Administrative Order Authorizing Collaborative Conflict Alternative Resolution Model
Following the lead of Judith S. Kaye, Chief Judge of the State of New York, Brevard Judge J. Dean Moxley recently wrote Administrative Order 07-20-B. The Order asserts the basic principle of collaborative law that the parties agree not to litigate any of their issues. By signing the Order,Brevard County not only recognizes and endorses the Collaborative Law Model as an alternative to traditional litigation, but also allows participants to abate existing Court proceedings and participate in the Collaborative process.
The highlights of the Administrative Order include the following:
1. A requirement for the candid exchange of information between the parties
2. The use of mental health and financial professionals to assist with the process
3. The Court will not set any hearings on a matter that has been filed yet designated a collaborative matter.
and
4. An acknowledgement of the confidentiality of the entire process.
The Administrative Order provides that, where a case has been filed, the parties are to provide status reports every 90 days. The Order differs from the traditional collaborative law model utilized by many Florida practitioners in that it allows parties to file a petition for dissolution. Most collaborative attorneys adhere to the rule that the agreement to keep the entire proceeding out of court means that neither party will file anything, including a petition, while the parties are in the process of negotiating.
Administrative Order 07-20-B also states the controversial yet crucial provision that collaborative attorneys are contractually required to withdraw from representation if the parties fail to reach an agreement. In February, 2007, the Colorado State Bar issued an ethics opinion stating that the agreement not to go to court is a violation of a lawyer's duty of representation to a client. The Brevard Judge sees it differently and feels, as do many collaborative proponents, that clients and their lawyers can enter into a valid contract that the lawyer will withdraw from representing the client if the case goes to court.
The Order is a strong endorsement for collaborative law in the state of Florida, which has been slow to give any legal recognition to the Collaborative process. To date, the Florida Bar has considered, although has not yet adopted, a Collaborative Law statute, and many judges have been wary of issuing opinions or orders endorsing the practice.
To read the text of the Adminstrative Order, visit www.flcourts18.org.
Following the lead of Judith S. Kaye, Chief Judge of the State of New York, Brevard Judge J. Dean Moxley recently wrote Administrative Order 07-20-B. The Order asserts the basic principle of collaborative law that the parties agree not to litigate any of their issues. By signing the Order,Brevard County not only recognizes and endorses the Collaborative Law Model as an alternative to traditional litigation, but also allows participants to abate existing Court proceedings and participate in the Collaborative process.
The highlights of the Administrative Order include the following:
1. A requirement for the candid exchange of information between the parties
2. The use of mental health and financial professionals to assist with the process
3. The Court will not set any hearings on a matter that has been filed yet designated a collaborative matter.
and
4. An acknowledgement of the confidentiality of the entire process.
The Administrative Order provides that, where a case has been filed, the parties are to provide status reports every 90 days. The Order differs from the traditional collaborative law model utilized by many Florida practitioners in that it allows parties to file a petition for dissolution. Most collaborative attorneys adhere to the rule that the agreement to keep the entire proceeding out of court means that neither party will file anything, including a petition, while the parties are in the process of negotiating.
Administrative Order 07-20-B also states the controversial yet crucial provision that collaborative attorneys are contractually required to withdraw from representation if the parties fail to reach an agreement. In February, 2007, the Colorado State Bar issued an ethics opinion stating that the agreement not to go to court is a violation of a lawyer's duty of representation to a client. The Brevard Judge sees it differently and feels, as do many collaborative proponents, that clients and their lawyers can enter into a valid contract that the lawyer will withdraw from representing the client if the case goes to court.
The Order is a strong endorsement for collaborative law in the state of Florida, which has been slow to give any legal recognition to the Collaborative process. To date, the Florida Bar has considered, although has not yet adopted, a Collaborative Law statute, and many judges have been wary of issuing opinions or orders endorsing the practice.
To read the text of the Adminstrative Order, visit www.flcourts18.org.
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