Let me tell you a bit about myself. I have had a family law practice in Pasadena, California for more than 22 years. I found litigation personally distasteful. I slowly transitioned my practice to settlement to the point where I now do 100% settlement, mostly mediation. Then, just when I thought there was nothing new under the sun, a new approach to divorce blossomed-- "Collaborative Divorce."
I see collaborative divorce as an approach to divorce that falls somewhere between mediation and litigation. It is particularly beneficial when the emotions and tensions between husband and wife make sitting together at a mediation table next to impossible. It is also a valuable option when there are complex financial issues or highly charged custody issues.
The great thing about collaborative divorce is that both the husband and the wife will be represented by their own attorney, but with a twist: as part of that representation, there is the added requirement that each of these attorneys guarantees that he or she will not bring the matter into Court. The client therefore can be assured that his/her respective attorney has no hidden agenda to go to court. Each attorney's sole focus is on using her/his best skills to assist the parties in resolving their issues through settlement.
The added ingenuity of the collaborative approach is that other professionals can be brought into the process and become part of the team, with the mutual goal of bringing the couple through the divorce process in a humane and efficient way. These additional professionals usually are therapists and accountants. The husband and wife, with the help of the attorneys, decide the make-up of their collaborative team. It may be just two attorneys, or those attorneys plus one therapist acting as a neutral mental health professional (coach) helping with both parties, or each party having his/her own therapist (coach), and sometimes an additional therapist representing only the interests of the children (child specialist). Similar combinations can be employed in retaining financial professionals.
The bottom line is that in my opinion you will usually be better off if you resolve the divorce issues through negotiation and settlement. Collaborative Divorce is a sensible, cost effective method of reaching this goal and any minor children will certainly reap the benefit of their parents taking this more peaceful approach.
Anthony J. Hill, Esq.
Friday, November 20, 2009
Wednesday, October 28, 2009
Why a Collaborative Divorce is Better for Those who Seek ANONYMITY
One significant contrast between a case litigated in the court system and a Collaborative agreement merely submitted for signatures is the anonymity provided the parties in the process. Many divorce lawyers advise their clients to say vile things about the other parent to sway the sympathies of the judge. These attorneys are most comfortable arguing the case. Without a thought to the impact on the children (or even the parties, who, after all, once loved each other) they create these abusive declarations to be signed by their client and filed in the public court file.
For example, in a custody dispute, the judge would want to hear evidence of any history of drug or alcohol abuse, physical or emotional abuse, and any other factors the court deems relevant. The law on this can be misused, and often is, since it is left to the judge to weigh all the factors and determine a parenting plan in the best interest of the child.
That is right--anyone who cares to can look into a court file and see what steps were taken through the divorce process. A child entering the courthouse will not be barred from reading the content of the pleadings, not will anyone else. The laws do not allow anyone to easily seal a file in any lawsuit, even one so sensitive as your divorce. In a California Collaborative Case, the file reader will see the initial stipulation that the case is collaborative. The reader will see the final agreed-to judgment with the signature of each party, team members and the judge. Only.
During the Collaborative case, the parties may have had to confront real, wrenching disputes. They may have thrown harsh accusations against the other party. With the help of their coaches, they also may have taken those very difficult confrontations and turned them to good use. Without any public display, they may learn how best to communicate and co-parent in their newly reconfigured family.
Of course, not everyone needs the Collaborative case and the anonymity it affords for this sort of reason. Many simply prefer the control over the result and the speed they can have in a Collaborative case.
Anonymously submitted by a member of Pasadena Collaborative Divorce
For example, in a custody dispute, the judge would want to hear evidence of any history of drug or alcohol abuse, physical or emotional abuse, and any other factors the court deems relevant. The law on this can be misused, and often is, since it is left to the judge to weigh all the factors and determine a parenting plan in the best interest of the child.
That is right--anyone who cares to can look into a court file and see what steps were taken through the divorce process. A child entering the courthouse will not be barred from reading the content of the pleadings, not will anyone else. The laws do not allow anyone to easily seal a file in any lawsuit, even one so sensitive as your divorce. In a California Collaborative Case, the file reader will see the initial stipulation that the case is collaborative. The reader will see the final agreed-to judgment with the signature of each party, team members and the judge. Only.
During the Collaborative case, the parties may have had to confront real, wrenching disputes. They may have thrown harsh accusations against the other party. With the help of their coaches, they also may have taken those very difficult confrontations and turned them to good use. Without any public display, they may learn how best to communicate and co-parent in their newly reconfigured family.
Of course, not everyone needs the Collaborative case and the anonymity it affords for this sort of reason. Many simply prefer the control over the result and the speed they can have in a Collaborative case.
Anonymously submitted by a member of Pasadena Collaborative Divorce
Wednesday, September 30, 2009
Why Do We Do Collaborative Law?
I speak for myself, but I have read a great deal of what other practitioners have to say and have sat in numerous seminars that examine collaborative practice. Please read my profile. If you want to know why I think Collaborative Law works, read on.
Dissolutions of marriage (divorce) are the cases I handle most often. We have a political (budget) problem. A smart person said: The law is "extraordinarily complex, the stakes in family law cases are high, and the court system has failed to allocate sufficient resources to keep caseloads realistic. Despite the importance, complexity and volume, family law departments don't have the clout to get the appropriate share of the court budgets." (Leslie E. Shear)
So, we look for solutions outside the court system. We want the solutions to be fair. Those of us who were trained to be lawyers in the seventies were not given tools that can reliably result in fairness in all cases. Some attorneys trained in later years were trained to mediate issues as well as litigate, but still, that whole process has still been squeezed to fit within the traditional system.
Some of us have trained and continue to train in Collaborative Law because we see that the traditional system fails our clients. The adversarial process often exacerbates the injury a divorcing person feels.
The issues are: how to share time to parent the child(ren), how to provide financial support for children and for spouse, how to account for and divide assets and debts, including the costs of litigation. These are the issues I was taught were all the issues that mattered in a divorce case. When we go to court, these are the only categories of issues that matter. How a spouse feels, about fairness or otherwise, is irrelevant.
A court of appeals once said dissolution of marriage "is, in the mathematical sense, a negative-sum game where each party will not have the same access to the whole of the marital property he or she had during the marriage."
"Things are not always as complicated as they are made to be." (Kathryn M. Fitzgerald) That is, when things can go simply, they sometimes take a more difficult path. Issues in divorce and other cases often blow up because of outside pressure. But, they can also be contained, if we look for creative ways to solve problems.
The children were fighting over the last orange; each wanted it. They had been brought up to understand compromise, so the elder carefully sliced the fruit in half. The younger ran outdoors, turned the peel inside out and greedily sucked out the juice and ate up the pulp. He tossed the peel in the garbage. His older sister, meanwhile, pared the zest from her half and used it in the orange icing she was making for a cake. She did not need the pulp or the juice, so she put that in the kitchen waste. If only they had each known what the other wanted, each could have gotten 100%.
Ask yourself, do we have a stake in the outcome such that we can work together toward solutions? If your answer is yes, the Collaborative process will work.
President Barack Obama is the person the United States elected as our representative because of his extraordinary ability to speak about empathy and understanding. He wrote: "...another tradition to politics, a tradition that stretched from the days of the country's founding to the glory of the civil rights movement, a tradition based on the simple idea that we have a stake in one another, and that what binds us together is greater than what drives us apart, and that if enough people believe in the truth of that proposition and act on it, then we might not solve every problem, but we can get something meaningful done."
by Kathryn M. Fitzgerald, CFLS (Certified by the State Bar of California Board of Legal Specialization as a Family Law Specialist, since 1994.)
Dissolutions of marriage (divorce) are the cases I handle most often. We have a political (budget) problem. A smart person said: The law is "extraordinarily complex, the stakes in family law cases are high, and the court system has failed to allocate sufficient resources to keep caseloads realistic. Despite the importance, complexity and volume, family law departments don't have the clout to get the appropriate share of the court budgets." (Leslie E. Shear)
So, we look for solutions outside the court system. We want the solutions to be fair. Those of us who were trained to be lawyers in the seventies were not given tools that can reliably result in fairness in all cases. Some attorneys trained in later years were trained to mediate issues as well as litigate, but still, that whole process has still been squeezed to fit within the traditional system.
Some of us have trained and continue to train in Collaborative Law because we see that the traditional system fails our clients. The adversarial process often exacerbates the injury a divorcing person feels.
The issues are: how to share time to parent the child(ren), how to provide financial support for children and for spouse, how to account for and divide assets and debts, including the costs of litigation. These are the issues I was taught were all the issues that mattered in a divorce case. When we go to court, these are the only categories of issues that matter. How a spouse feels, about fairness or otherwise, is irrelevant.
A court of appeals once said dissolution of marriage "is, in the mathematical sense, a negative-sum game where each party will not have the same access to the whole of the marital property he or she had during the marriage."
"Things are not always as complicated as they are made to be." (Kathryn M. Fitzgerald) That is, when things can go simply, they sometimes take a more difficult path. Issues in divorce and other cases often blow up because of outside pressure. But, they can also be contained, if we look for creative ways to solve problems.
The children were fighting over the last orange; each wanted it. They had been brought up to understand compromise, so the elder carefully sliced the fruit in half. The younger ran outdoors, turned the peel inside out and greedily sucked out the juice and ate up the pulp. He tossed the peel in the garbage. His older sister, meanwhile, pared the zest from her half and used it in the orange icing she was making for a cake. She did not need the pulp or the juice, so she put that in the kitchen waste. If only they had each known what the other wanted, each could have gotten 100%.
Ask yourself, do we have a stake in the outcome such that we can work together toward solutions? If your answer is yes, the Collaborative process will work.
President Barack Obama is the person the United States elected as our representative because of his extraordinary ability to speak about empathy and understanding. He wrote: "...another tradition to politics, a tradition that stretched from the days of the country's founding to the glory of the civil rights movement, a tradition based on the simple idea that we have a stake in one another, and that what binds us together is greater than what drives us apart, and that if enough people believe in the truth of that proposition and act on it, then we might not solve every problem, but we can get something meaningful done."
by Kathryn M. Fitzgerald, CFLS (Certified by the State Bar of California Board of Legal Specialization as a Family Law Specialist, since 1994.)
Monday, August 10, 2009
Financial Woes: Couples Struggle to Make House Payments as Homes Lower in Value
Discussing money is difficult - even in the best of circumstances - but trying to talk about money while going through a divorce is mindboggling.
The common asset most couples know they must talk about is their home. It's the one asset they purchased together shortly after getting married, or the one they lived in while raising the kids.
But what happens when the home is in jeopardy? What happens when the home values fall and making payments becomes a struggle? What do couples do?
One thing that is abundantly clear is that you are not alone and that there are others like you in a similar situation. About 1.5 million households received at least one foreclosure-related notice in the first half of this year, according to RealtyTrac Inc. According to Michael Barr, the Treasury Department's assistant secretary, the government has 38 companies participating in their $50 billion program to ease the mortgage crisis, yet they recognize that it is only reaching a small number of homeowners.
The government knows that banks have not done enough since they have only extended 400,000 offers among 2.7 million eligible borrowers who are more than two months behind on their payments. They are aware of two lenders - Bank of America and Wells Fargo - who have lagged behind expectations after having received billions of federal bailout money. B of A modified just 4% of its eligible loans and Wells Fargo 6%. However, the good news is that both Wells Fargo and B of A said that they have plans to speed up their efforts.
And there are companies who have made strides to assist the troubled homeowner. Saxon Mortgage Services, Inc. has helped one in four eligible borrowers with a trial loan modification that lowers the monthly payment to help the homeowner avoid foreclosure. Also, Aurora Loan Services LLC, GMAC Mortgage Inc. and JP Morgan Chase all had one in five qualified borrowers in a trial loan.
So if you are in a financial bind, contact your bank or a mortgage broker to see what they can do for you - they just might be able to help. Also, share with your spouse and your divorce professionals - especially if you are working in the Collaborative Divorce model - the financial hardship you are living through. Communication between you and others is a must during this financial crisis, for solutions are only possible when troubles become known.
Respectfully submitted,
Steven B. Garelick, CPA, ABV, CVA, CFS, Mediator
Partner, Senior Litigation Case Manager
e-mail: sgarelic@miod-cpa.com
Miod and Company, LLP, CPAs
http://www.miod-cpa.com
The common asset most couples know they must talk about is their home. It's the one asset they purchased together shortly after getting married, or the one they lived in while raising the kids.
But what happens when the home is in jeopardy? What happens when the home values fall and making payments becomes a struggle? What do couples do?
One thing that is abundantly clear is that you are not alone and that there are others like you in a similar situation. About 1.5 million households received at least one foreclosure-related notice in the first half of this year, according to RealtyTrac Inc. According to Michael Barr, the Treasury Department's assistant secretary, the government has 38 companies participating in their $50 billion program to ease the mortgage crisis, yet they recognize that it is only reaching a small number of homeowners.
The government knows that banks have not done enough since they have only extended 400,000 offers among 2.7 million eligible borrowers who are more than two months behind on their payments. They are aware of two lenders - Bank of America and Wells Fargo - who have lagged behind expectations after having received billions of federal bailout money. B of A modified just 4% of its eligible loans and Wells Fargo 6%. However, the good news is that both Wells Fargo and B of A said that they have plans to speed up their efforts.
And there are companies who have made strides to assist the troubled homeowner. Saxon Mortgage Services, Inc. has helped one in four eligible borrowers with a trial loan modification that lowers the monthly payment to help the homeowner avoid foreclosure. Also, Aurora Loan Services LLC, GMAC Mortgage Inc. and JP Morgan Chase all had one in five qualified borrowers in a trial loan.
So if you are in a financial bind, contact your bank or a mortgage broker to see what they can do for you - they just might be able to help. Also, share with your spouse and your divorce professionals - especially if you are working in the Collaborative Divorce model - the financial hardship you are living through. Communication between you and others is a must during this financial crisis, for solutions are only possible when troubles become known.
Respectfully submitted,
Steven B. Garelick, CPA, ABV, CVA, CFS, Mediator
Partner, Senior Litigation Case Manager
e-mail: sgarelic@miod-cpa.com
Miod and Company, LLP, CPAs
http://www.miod-cpa.com
Monday, June 1, 2009
CHOOSING A PROCESS APPROPRIATE FOR YOU
Kathleen M. O’Connor, Esq.
Once you decide you are separating from a spouse or partner, your most significant decision is choosing the process which is appropriate for you. The choice of Mediation, Collaboration or Litigation will impact you and your children emotionally and financially. The choice will affect your relationship with your children and your partner. This blog discusses the processes available to assist you to obtain an enforceable judgment. It refers to divorce for convenience only. The process choices apply also to termination of domestic partnership and establishment of a parental relationship.
You decided you are leaving your spouse. The decision has not been easy. You need a clear agreement about children, finances and assets. You may feel scared, fearful for the children, angry, and confused. The easiest and safest decision seems to be to follow the lead of family members or friends. Listen to them. They care about you. But remember that how they ended a relationship may not be appropriate for you and your children. This is a summary. Read other material so you understand the benefits and risks of each process to you.
How we divorce has changed in the last 15 years. There are other ways to handle ending your relationships other than relying upon the win/lose decision of a court.
There are four processes available for you to consider. These process can overlap with each other. You need to decide which process is appropriate for your family. Couples now choose the "Kitchen Table Method", Mediation, Collaboration and Litigation. Which you choose depends upon your ability to communicate, the level of trust between you, your mutual ability to make decisions, and the presence and level of any domestic violence. It is not dependent upon the level of income or assets or debts.
You and your spouse can make all of the decisions about your children and your futures. You do not need to relinquish that decision to a court. A court will enter, as an enforceable court order, the agreements which you reach for your family. So although the court is available to make decisions after considering credible, factual and reliable evidence, it is not the only way to end your relationship.
Kitchen Table: During your relationship, many decisions were made at the kitchen table. Deciding upon child custody arrangements and the division of property can still be done at the kitchen table. This process works for couples with simple assets and very low conflict. Be careful to have an experienced attorney review your agreement so that you know you have divided all the assets and properly handled the support of the children as well as their access to both parents.
Mediation: A trained mediator will assist you and your spouse in reaching decisions necessary to provide for the children’s custody, support, and property division. A trained mediator may be from a background of law, finances or mental health. Each profession brings strengths to the process. Mediation works well where couples are able to reach decisions, are honest about assets and want to settle, and where there is no great power differential. The mediator must remain neutral.
Collaboration: A team of lawyers, coaches, and neutral financial experts assists you to identify interests which are important to you. The process uses the skills of a multi-disciplinary team to reach agreements which meet the mutual interests of the whole family. As in mediation, the process encourages respect, re-building of trust, and recognition that you have a different but continuing relationship with your partner. Each spouse has a collaboratively trained attorney, but the attorneys will never appear in court on behalf of either spouse. Additional professionals are available to help with the emotional, parenting and financial issues of divorce.
Litigation: You hire an attorney whose professional responsibility is to advocate for you. The impact of the divorce on your children may not be a concern of your attorney. Most cases which use the litigation process end with an agreement of the attorneys and parties. This process relies upon credible, factual and admissible evidence. Although the process may end with compromise if the judge makes the decision, there will be a winner and a loser. Additionally, the pace of litigation often depends upon the availability of the court.
A note about Domestic Violence:
If there is any domestic violence in your relationship – and certainly if the violence has been long term – you must stay safe and protect your children. Litigation may be your best alternative.
Once you decide you are separating from a spouse or partner, your most significant decision is choosing the process which is appropriate for you. The choice of Mediation, Collaboration or Litigation will impact you and your children emotionally and financially. The choice will affect your relationship with your children and your partner. This blog discusses the processes available to assist you to obtain an enforceable judgment. It refers to divorce for convenience only. The process choices apply also to termination of domestic partnership and establishment of a parental relationship.
You decided you are leaving your spouse. The decision has not been easy. You need a clear agreement about children, finances and assets. You may feel scared, fearful for the children, angry, and confused. The easiest and safest decision seems to be to follow the lead of family members or friends. Listen to them. They care about you. But remember that how they ended a relationship may not be appropriate for you and your children. This is a summary. Read other material so you understand the benefits and risks of each process to you.
How we divorce has changed in the last 15 years. There are other ways to handle ending your relationships other than relying upon the win/lose decision of a court.
There are four processes available for you to consider. These process can overlap with each other. You need to decide which process is appropriate for your family. Couples now choose the "Kitchen Table Method", Mediation, Collaboration and Litigation. Which you choose depends upon your ability to communicate, the level of trust between you, your mutual ability to make decisions, and the presence and level of any domestic violence. It is not dependent upon the level of income or assets or debts.
You and your spouse can make all of the decisions about your children and your futures. You do not need to relinquish that decision to a court. A court will enter, as an enforceable court order, the agreements which you reach for your family. So although the court is available to make decisions after considering credible, factual and reliable evidence, it is not the only way to end your relationship.
Kitchen Table: During your relationship, many decisions were made at the kitchen table. Deciding upon child custody arrangements and the division of property can still be done at the kitchen table. This process works for couples with simple assets and very low conflict. Be careful to have an experienced attorney review your agreement so that you know you have divided all the assets and properly handled the support of the children as well as their access to both parents.
Mediation: A trained mediator will assist you and your spouse in reaching decisions necessary to provide for the children’s custody, support, and property division. A trained mediator may be from a background of law, finances or mental health. Each profession brings strengths to the process. Mediation works well where couples are able to reach decisions, are honest about assets and want to settle, and where there is no great power differential. The mediator must remain neutral.
Collaboration: A team of lawyers, coaches, and neutral financial experts assists you to identify interests which are important to you. The process uses the skills of a multi-disciplinary team to reach agreements which meet the mutual interests of the whole family. As in mediation, the process encourages respect, re-building of trust, and recognition that you have a different but continuing relationship with your partner. Each spouse has a collaboratively trained attorney, but the attorneys will never appear in court on behalf of either spouse. Additional professionals are available to help with the emotional, parenting and financial issues of divorce.
Litigation: You hire an attorney whose professional responsibility is to advocate for you. The impact of the divorce on your children may not be a concern of your attorney. Most cases which use the litigation process end with an agreement of the attorneys and parties. This process relies upon credible, factual and admissible evidence. Although the process may end with compromise if the judge makes the decision, there will be a winner and a loser. Additionally, the pace of litigation often depends upon the availability of the court.
A note about Domestic Violence:
If there is any domestic violence in your relationship – and certainly if the violence has been long term – you must stay safe and protect your children. Litigation may be your best alternative.
Monday, March 16, 2009
Effective Use of an Accountant in Divorce
With the recent downturn in the economy, people are feeling insecure about their jobs, their bank deposits, their credit card balances, their retirement account values, and most of all, the plummeting real estate market.
Real estate in general, and the family residence in particular, are proving to be more of a challenge these days to divorcing people. The house that was worth 40% more two years ago may be difficult to sell in a market where loans are harder to qualify for, even at a reduced price. With the double incentives of low interest rates and mortgage interest deductions, many people borrowed against their equity in the past few years to fund new cars, vacations, increased lifestyle, and business start-ups. Because they used their homes as surrogate ATM machines, these families experienced shrinking home values which may have left them with little or no remaining equity. This puts an added burden on a divorcing couple, because selling the family home and buying two smaller homes may no longer be feasible. Therefore, it is even more important to talk to a family law accountant to weigh several options.
One of the thorniest issues in a divorce may be who gets to stay in the family residence, for how long, and who gets bought out. Especially when there are children involved, but even if there are not, a couple in a collaborative practice or mediation case may find ways to compromise with the help of their team. One possible solution may be for one parent to remain in the home with the children for a few years for a period of adjustment, or for enough time for the children to complete the next stage of their education. We can help the couple work out a deferred sale and/or buyout a few years in the future. The current tax laws allow us to make this plan work if, and only if, both parents agree.
Selling the house and dividing the proceeds may not be the optimum solution, particularly during a poor real estate market. More divorcing couples are continuing to live in the same residence, albeit with creative partitioning. Some are remodeling the house in order to create separate kitchens, bedrooms and bathrooms for each spouse. If the property may be subdivided and/or zoning variences are approved, a duplex or "granny house" may be created.
Calculating each spouse's portion of the equity may be a challenge. Did one of the spouses own the home prior to marriage? Were there capital improvements made during the marriage? Was the original loan refinanced? If so, how often? Was cash taken out of the equity? Did one spouse go on title during the marriage? If not, was a quit claim signed? If so, why? Was the signer aware of the ramifications of signing away his or her interest in the real estate? These issues involve complicated calculations for potential reimbursements and equity-splitting that a family law CPA can assist with. Of course, these are legal issues as well.
In a collaborative practice or mediated case, this type of information is more readily available, because both spouses have pledged to cooperate, and to be honest and forthcoming with the details necessary to make a fair and equitable determination of the equity split. This cooperative attitude goes a long way toward saving the couple considerable time and money in compiling the information and coming to an agreement with the assistance of the neutral account and their attorneys or mediator.
The collaborative and mediation processes recognize that one spouse may need a little more help understanding the financial issues and making decisions as to whether or not he or she can affort to stay in the family home and for how long. The accountant may meet alone with him or her to review potential options and budget for the near future.
These are some of the reasons that working with a neutral family law accountant in the collaborative or mediation process helps the divorcing couple talk about and resolve their financial and tax issues faster, better, and cheaper. If you or a friend or family member are considering divorce, we invite you to contact us soon.
Signed, Susan Carlisle, CPA/PFS ABV, CFF
http://www.carlislecpa.com/
Real estate in general, and the family residence in particular, are proving to be more of a challenge these days to divorcing people. The house that was worth 40% more two years ago may be difficult to sell in a market where loans are harder to qualify for, even at a reduced price. With the double incentives of low interest rates and mortgage interest deductions, many people borrowed against their equity in the past few years to fund new cars, vacations, increased lifestyle, and business start-ups. Because they used their homes as surrogate ATM machines, these families experienced shrinking home values which may have left them with little or no remaining equity. This puts an added burden on a divorcing couple, because selling the family home and buying two smaller homes may no longer be feasible. Therefore, it is even more important to talk to a family law accountant to weigh several options.
One of the thorniest issues in a divorce may be who gets to stay in the family residence, for how long, and who gets bought out. Especially when there are children involved, but even if there are not, a couple in a collaborative practice or mediation case may find ways to compromise with the help of their team. One possible solution may be for one parent to remain in the home with the children for a few years for a period of adjustment, or for enough time for the children to complete the next stage of their education. We can help the couple work out a deferred sale and/or buyout a few years in the future. The current tax laws allow us to make this plan work if, and only if, both parents agree.
Selling the house and dividing the proceeds may not be the optimum solution, particularly during a poor real estate market. More divorcing couples are continuing to live in the same residence, albeit with creative partitioning. Some are remodeling the house in order to create separate kitchens, bedrooms and bathrooms for each spouse. If the property may be subdivided and/or zoning variences are approved, a duplex or "granny house" may be created.
Calculating each spouse's portion of the equity may be a challenge. Did one of the spouses own the home prior to marriage? Were there capital improvements made during the marriage? Was the original loan refinanced? If so, how often? Was cash taken out of the equity? Did one spouse go on title during the marriage? If not, was a quit claim signed? If so, why? Was the signer aware of the ramifications of signing away his or her interest in the real estate? These issues involve complicated calculations for potential reimbursements and equity-splitting that a family law CPA can assist with. Of course, these are legal issues as well.
In a collaborative practice or mediated case, this type of information is more readily available, because both spouses have pledged to cooperate, and to be honest and forthcoming with the details necessary to make a fair and equitable determination of the equity split. This cooperative attitude goes a long way toward saving the couple considerable time and money in compiling the information and coming to an agreement with the assistance of the neutral account and their attorneys or mediator.
The collaborative and mediation processes recognize that one spouse may need a little more help understanding the financial issues and making decisions as to whether or not he or she can affort to stay in the family home and for how long. The accountant may meet alone with him or her to review potential options and budget for the near future.
These are some of the reasons that working with a neutral family law accountant in the collaborative or mediation process helps the divorcing couple talk about and resolve their financial and tax issues faster, better, and cheaper. If you or a friend or family member are considering divorce, we invite you to contact us soon.
Signed, Susan Carlisle, CPA/PFS ABV, CFF
http://www.carlislecpa.com/
Wednesday, February 25, 2009
Collaborative vs. Court: How Collaborative Can be Better than Litigation
I believe that in most cases a resolution of family law issues should not be treated the same as a lawsuit. However, when most family law matters go to court, this is exactly how they are handled. When your issues are resolved in the courtroom, you and the other party are adversaries. After “argument” the court will make a decision that you and the other party must follow. What would this look like if the resolution of the dispute were obtained through the Collaborative Process? Consider an example of two parents with two small children. Both parents want significant time with their children but they have differences about what the children need and what a good schedule will be. If these parents go to court, they will necessarily have to present arguments to the Judge; this pits them against the other parent in order to persuade the court why the children should be with them more than with the other parent. This requires the parents to position themselves against the other. This frequently causes one or both parents to be negative about the other parent. Often litigation counsel will encourage their client to raise any possible negative history about the other parent, such as prior bad conduct, to persuade the judge. Parties become angry and hurt by the statements made by the other, and, in defending themselves, may seek to bring up “dirt” on the other party. Declarations (the parties' written statements) become clogged with accusations, misunderstandings, and sometimes blatant lies told in order to persuade a judge to agree with them. This kind of litigation can cause a dispute to escalate, cause new disputes, create very angry feelings, and flare hostility between parties, all of which will continue to affect them regardless of how the judge rules. The hurt and angry feelings will no doubt also affect the parties' ongoing ability to work together as parents.
In a Collaborative case, parties will work with attorneys and other professionals, who try to help the parties come to agreements without becoming adversarial. Parties will have assistance to find a way to bridge their differences and to come to a resolution. Old issues and prior conduct which have no direct effect on parenting will not be part of the discussion. Parties will be able to discuss their goals and differences with the other party in a safe and respectful environment. There is opportunity to discuss the “whys” and “hows” of what each parent wants. This is a significant change in how families can seek legal resolution, because they are not trying to persuade a single decision maker, but instead are trying to work together to come to a collaboratively crafted agreement which both parties can support. This difference alone can facilitate making the decisions necessary to resolve family law disputes. These disputes can be hard enough without fueling them with litigation tactics; so this alone presents one of the best benefits of the Collaborative Process.
Submitted by:
Laurel Tuvim Amaya
Family Law Collaborative Attorney and Mediator
www.Ltafamilylaw.com
In a Collaborative case, parties will work with attorneys and other professionals, who try to help the parties come to agreements without becoming adversarial. Parties will have assistance to find a way to bridge their differences and to come to a resolution. Old issues and prior conduct which have no direct effect on parenting will not be part of the discussion. Parties will be able to discuss their goals and differences with the other party in a safe and respectful environment. There is opportunity to discuss the “whys” and “hows” of what each parent wants. This is a significant change in how families can seek legal resolution, because they are not trying to persuade a single decision maker, but instead are trying to work together to come to a collaboratively crafted agreement which both parties can support. This difference alone can facilitate making the decisions necessary to resolve family law disputes. These disputes can be hard enough without fueling them with litigation tactics; so this alone presents one of the best benefits of the Collaborative Process.
Submitted by:
Laurel Tuvim Amaya
Family Law Collaborative Attorney and Mediator
www.Ltafamilylaw.com
Monday, January 26, 2009
A SAMPLE COLLABORATIVE CASE: A True Story
This will be a very brief description of a Collaborative Divorce Case completed in 2005 in California.
A mother of a 6-year old decided to get a divorce. Father was unhappy about that, but agreed to go along with a Collaborative process. Both hired collaborative attorneys and chose divorce coaches. This case had relatively few assets and only the one child.
The parents were both devoted to their boy, although their communication had deteriorated as a married couple. The coaches helped them to understand the changes their relationship needed to undergo as they moved from an intimate relationship and living situation to living separately and co-parenting from different households. When the "heat" rose between them, the photo of their son seemed to always bring them back to a more reasonable stance toward each other.
Mom learned that her attempts to get emotional support from Dad were jarring and uncomfortable for him, as he was busy grieving. Thereafter, she went to others for her support. Dad learned that his language about "my house, my money" was demeaning to Mom and inaccurate under California laws, and was able to change his language.
Mom's big concerns about Dad's drinking were dealt with sensitively by the coaches, and Dad promised not to drink for a certain number of hours before and during his time with the son. Mom saw that he was keeping his word.
The child met with a child specialist who represented his needs and concerns to the team. She also proposed some ideas for a parenting plan, and provided support for the child and a forum for him to talk through his feelings about the separation and the changes in his life.
The neutral financial professional in this case reassured both clients with his matter-of-fact neutrality. He especially aided this case by projecting the financial settlement into the future, so the clients could see the long-range implications of their settlement, which allowed them to increase their compassion and good-will toward one another.
The attorneys were very respectful toward one another, made efforts to connect with each other's clients, and quickly sent the clients to coaching whenever emotional issues arose. They skilfully managed the financial settlement and support issues so that (although Dad continually referred to his first divorce which had cost him $400.00) both people ended convinced that they had made the very best of a difficult situation.
When I spoke with Mom a year after the completion of this case, she was happy to report that the parents were continuing to work together in a peaceful and businesslike way to provide the best care they could manage for their child.
This entire divorce took about 8 months and cost the family about $13,000. The team was struck by the fact that this case, if it had not been handled collaboratively, could have resulted in numerous expensive hearings and a great dial of emotional upheaval. The team also was extremely pleased by the way that the communication flowed among team members (massive amounts of sharing by email) and by the respectful and peaceful tone the team kept providing for this family.
Respectfully submitted by:
Divorce Coach, Mary Ann Aronsohn, MA, LMFT
www.aronsohntherapy.com
A mother of a 6-year old decided to get a divorce. Father was unhappy about that, but agreed to go along with a Collaborative process. Both hired collaborative attorneys and chose divorce coaches. This case had relatively few assets and only the one child.
The parents were both devoted to their boy, although their communication had deteriorated as a married couple. The coaches helped them to understand the changes their relationship needed to undergo as they moved from an intimate relationship and living situation to living separately and co-parenting from different households. When the "heat" rose between them, the photo of their son seemed to always bring them back to a more reasonable stance toward each other.
Mom learned that her attempts to get emotional support from Dad were jarring and uncomfortable for him, as he was busy grieving. Thereafter, she went to others for her support. Dad learned that his language about "my house, my money" was demeaning to Mom and inaccurate under California laws, and was able to change his language.
Mom's big concerns about Dad's drinking were dealt with sensitively by the coaches, and Dad promised not to drink for a certain number of hours before and during his time with the son. Mom saw that he was keeping his word.
The child met with a child specialist who represented his needs and concerns to the team. She also proposed some ideas for a parenting plan, and provided support for the child and a forum for him to talk through his feelings about the separation and the changes in his life.
The neutral financial professional in this case reassured both clients with his matter-of-fact neutrality. He especially aided this case by projecting the financial settlement into the future, so the clients could see the long-range implications of their settlement, which allowed them to increase their compassion and good-will toward one another.
The attorneys were very respectful toward one another, made efforts to connect with each other's clients, and quickly sent the clients to coaching whenever emotional issues arose. They skilfully managed the financial settlement and support issues so that (although Dad continually referred to his first divorce which had cost him $400.00) both people ended convinced that they had made the very best of a difficult situation.
When I spoke with Mom a year after the completion of this case, she was happy to report that the parents were continuing to work together in a peaceful and businesslike way to provide the best care they could manage for their child.
This entire divorce took about 8 months and cost the family about $13,000. The team was struck by the fact that this case, if it had not been handled collaboratively, could have resulted in numerous expensive hearings and a great dial of emotional upheaval. The team also was extremely pleased by the way that the communication flowed among team members (massive amounts of sharing by email) and by the respectful and peaceful tone the team kept providing for this family.
Respectfully submitted by:
Divorce Coach, Mary Ann Aronsohn, MA, LMFT
www.aronsohntherapy.com
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