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Tuesday, November 17, 2009

The Honeymooners' Divorce: Collaborative Law, Mediation or Litigation - Part III

The Kramden's and Litigation:

Ralph is a bus driver and Alice is currently unemployed but has worked as secretary at times when Ralph has been laid off. They have no children and Alice is primarily responsible for the management of the finances. Ralph often gets involved in ridiculous schemes that Alice claims have wasted their money. Ralph and Alice often insult each other, and Ralph makes constant threats such as "One of these days... Pow! Right in the kisser! One of these days Alice, straight to the moon!."

Recently Ralph was caught using his cell phone while driving and lost his job as a bus driver. When he came home and told Alice she berated him for his stupidity and Ralph became extremely angry. He got right in Alice's face and said, as he so often has, "One of these days... Pow! Right in the kisser! One of these days Alice, straight to the moon!." Alice replies "I'd like to see you try" and in response Ralph steps closer to her and pulls back his arm making a fist. Rather than wait to see if Ralph would actually hit her, Alice immediately backs away. Ralph does not follow her, but Alice is afraid and leaves the apartment.

She goes into a friend's apartment down the hall and calls the police. The police arrive and after interviewing both parties they indicated that they are not going to arrest Ralph. They ask Alice if she wants to request a 209A restraining order against Ralph and she states that she does. The police call the emergency Judge who approves an emergency restraining order. The police escort Ralph out of the apartment who has calmed down and accepts the police's request without any fight or argument.

Ralph, escorted by the police, collects some of his clothes and moves in with his friend, Ed Norton.

The following morning, Ralph and Alice both show up without lawyers at a hearing in the Suffolk District Court. Alice indicates during the hearing that she was afraid that Ralph was going to hit her during their argument, even though he has never carried out his threats in the past. Alice also states that she is not afraid of him right now and that she feels safe so long as he does not move back in. Alice also indicates that she intends to file for Divorce and that she doesn't want Ralph to move back in. Ralph agrees that he won't move back in and that he will continue to live with Ed. The Judge indicates to Alice that he can only extend the Restraining Order if she has a "reasonable fear of imminent serious physical harm," and given her testimony he cannot extend the restraining order.

Both Ralph and Alice consult with attorneys. Alice does not consult with a free Legal Aid service because she is back to working as a part-time secretary and she believes that she does not qualify for their services.

Alice borrows money from a friend to hire the attorney she consulted with because she doesn't feel safe negotiating directly with Ralph. Alice's attorney files a Complaint for Divorce.

Eventually right before the Pre-Trial, Ralph hires an attorney as well and the Divorce case is settled via Separation Agreement at the Pre-Trial. Both parties end up with some debt because of the cost of their legal fees.

COULD THIS HAVE GONE BETTER: Unfortunately, when domestic violence is an issue in a case, it is practically impossible to make use of mediation or collaborative law. Although mediation or collaborative law could have been cheaper, both options depend on a certain amount of trust between the parties and it is necessary for there not to be any threat of coercion.

Even in an instance where no physical violence has occurred, the threat of violence can be just as damaging and puts the victim at a disadvantage in any negotiation (notwithstanding the ongoing safety concerns).

As was suggested by one of our voters, DGVE law, Alice, might have been better served by having a trained domestic violence advocate work with her. Resources for domestic violence victims in Massachusetts are available here. Alice should have also discussed her case with potential legal aid services before assuming she didn't qualify. Resources related to finding legal counsel and/or legal services are available here.

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