WE HELP FAMILIES RESOLVE CONFLICT PEACEFULLY


Wednesday, May 21, 2014

Divorce Mediation Infographic

Divorce Mediation
Source: TopCounselingSchools.org

Kelsey & Trask, P.C. provides this graphic for informational purposes only. We do not endorse nor claim endorsement from the source site or organization. Kelsey & Trask, P.C. is not responsible for any information contained therein, unless indicated specifically on that site.

Wednesday, May 14, 2014

Starting the Divorce Process: Part 3 - What is the Best Way to get Divorced?

In our previous post, we explored the problem with the way that most resources (including the court's own website) answer the question "How do I start the divorce process?"  Most resources answer this question by telling you which court forms you can file.   However, the court forms don't determine how to divide your finances, or where your children will live.  The court forms only determine whether you will make those decisions for yourself or ask a Judge to make them for you.

Before you decide what forms to file, you need to make a decision about what level of control you want over your own divorce process and major life decisions.  If you have children, you also need to consider your communication and relationship goals for co-parenting post-divorce, and which divorce process will best help you meet those goals.  Each different process offers different levels of assistance from various types of professionals.  Which option is right for you depends on how much help you and your spouse want from professionals and how much of the work you're willing and able to do yourselves.  You should consider all of your options before deciding how you want to proceed:


SELF-HELP OPTION - Also referred to as kitchen-table negotiation, self-help means that you and your spouse are reaching the divorce agreements yourself.  If you're able to resolve all of the parenting, legal and financial issues directly with your spouse then these agreements need to be written down in a contract called a Separation Agreement or Divorce Agreement and presented to the court with a Joint Petition for Divorce.  In this option both spouses must figure out emotional and communication issues themselves and research information regarding their legal, parental and financial rights themselves.


SELF-HELP WITH ATTORNEY REVIEW - Many people reach their agreements through the Self-Help Option but want to ensure that the Separation Agreement properly reflects their decisions and protects them legally.  In this option, one party hires an attorney to write the Separation Agreement and other court forms.  Since one attorney cannot represent both parties, if the other spouse wants legal advice regarding the draft Agreement then they would take the draft Separation Agreement to their own attorney for review.  In this case, the parties handled most of the parenting, legal and financial issues themselves and have individual legal advice of an attorney to ensure their decisions were informed.  The Separation Agreement is then presented to the court with a Joint Petition for Divorce.  In this option both spouses must figure out emotional and communication issues themselves.


ATTORNEY NEGOTIATION OUT OF COURT - Many people are unable to negotiate directly with each other but want to avoid the financial and emotional cost of court.  In this option, one or both parties use an attorney to negotiate on their behalf.  Depending on the complexity of the issues in the case, this can include meetings with both attorneys and the parties.  In this option, the attorneys are typically only involved on the issues that the parties cannot resolve on their own.  Since attorneys are not usually trained in mental health or financial planning, if there are complex emotional or financial issues, the parties must handle those issues themselves or hire additional professionals.  If agreements are reached then a Separation Agreement is drafted and presented to the court with a Joint Petition for Divorce.  In this option both spouses must figure out communication issues themselves.


LITIGATION (or Arbitration) - If spouses are unable to reach agreements, then ultimately they can request that a judge decide for them.  While every divorcing spouse has a right to a trial, the stress, time frame, and cost of litigation are the highest of all the options.  Sometimes if there are factors which make it impossible to settle outside of court (such as domestic violence or financial dishonesty) then litigation may be the only option.  However, in most cases litigation should be the last resort.  Since attorneys are usually not trained in mental health or financial planning, if there are complex emotional or financial issues, the parties must handle those themselves or hire additional professionals.  In this option communication issues are often made worse by the adversarial nature of litigation.  The time and cost of litigation can be reduced by combining it with other options.  For example, a mediator is sometimes brought in to assist with settling specific issues in a litigation case.  In some instances parties choose to use arbitration, submitting their case to an agreed upon arbitrator who will decide the contested issues.  Arbitration is often faster, less formal, and cheaper than awaiting a trial before a judge.  However, the biggest problems with litigation still exist in arbitration: lack of self-determination and lack of communication.


MEDIATION - If you are unable to reach agreements directly with your spouse but are willing to negotiate with them and voice your own interests, then a mediator can help with communication and providing information about legal, parenting and financial options. If the mediator is an attorney, then they can draft the Separation Agreement, but cannot provide either party with specific legal advice.  The Separation Agreement is then presented to the court with a Joint Petition for Divorce.  In this option, the parties decide the parenting, legal and financial issues themselves with the assistance of a neutral mediator, but did not have individual legal advice of an attorney to ensure their decisions were informed in all respects.  In this option both spouses must figure out emotional issues themselves.


MEDIATION with ATTORNEY ADVICE - It is recommended that both parties obtain individual legal advice throughout the mediation process, or at the very least to review a draft Separation Agreement before signing.  If the mediator is an attorney they can draft the Separation Agreement, but cannot provide individual legal advice.  In this option, the parties decide the parenting, legal and financial issues themselves with the assistance of a neutral mediator, and have individual legal advice of an attorney to ensure their decisions were informed.  The Separation Agreement is then presented to the court with a Joint Petition for Divorce.  In this option both spouses must figure out emotional issues themselves.


COLLABORATIVE DIVORCE - While self-determination and the private nature of mediation are attractive to many people, not everyone is comfortable negotiating by themselves.  In a Collaborative Divorce, your collaboratively-trained attorney participates in the negotiation meetings with you and helps you advocate for your position.  Unlike the attorney negotiation option, in a Collaborative Divorce the collaborative attorneys formally agree not to go to court, which increases the likelihood of an out-of-court settlement.  The other hallmark of Collaborative Divorce is the use of specific neutral professionals in the process to ensure that communication improves and that parties obtain the information needed to make informed decisions.  A Collaborative Coach/Facilitator helps parties communicate better, recognize their emotional triggers in the process, and fosters a team approach to problem solving.  A Financial Neutral helps parties collect, summarize and evaluate financial options so that any legal decisions reflect the parties actual financial goals.  A neutral Child Specialist may be consulted if there are specific child-related issues requiring evaluation.   Each participant in the Collaborative process has a role that helps the parties address a need that arises during divorce.

Many attorneys and most court websites in Massachusetts make it seem like your only option is to file a Complaint for Divorce and start litigation.  That is simply not true.  The other six options presented above result in a Joint Petition for Divorce when successful.  All of these options range in the amount of help you receive from professionals, and in most cases the more help you receive the more cost there will be (although this may not be true in litigation where many of the costs are related to continuing conflict rather than resolving it).  You have a choice as to how much help you need.  The most important part of that sentence is that YOU HAVE A CHOICE!  Make it an informed one.

To see a summary of these options refer back to the chart we provided in Part 1 of this series.

Thank you to Dan Finn for inspiring the images in this post.


Starting the Divorce Process: Part 2 - Is there a Wrong Way to Start?

There is no one-size fits all divorce process and for that reason there are a number of different ways to start a divorce in Massachusetts.  This means that you have options!  Unfortunately, that is not the same message you will hear from everyone, because who you ask this question to makes a difference in the answers you will receive.

Most cases settle, even when they start in litigation.  
So why do more people start with litigation?

You may have heard the story about the woman with back pain who asks her doctor what she should do.  The doctor prescribes pain medication and exercise.  She wants a second opinion so she visits a surgeon, and the surgeon recommends surgery.  She's not ready for surgery so she seeks a third opinion from a chiropractor who tells her that all she needs is regular adjustments.  Finally, when she complains to her therapist about not knowing what to do with these differing opinions, her therapist tells her the pain is in her head and she needs to focus on her therapy more.

The cynic would say that each professional is just trying to bill a patient, but in reality professionals are all trained to see problems in light of the solutions they have learned to provide.  The same is true for divorce professionals.

Many people start with litigation because the first professional they ask about divorce is a litigation attorney.

If you research online and stuck to the first few search results your will experience the same problem.  At a recent presentation, Rackham Karlsson, a Massachusetts Collaborative Divorce Attorney and Mediator, pointed out that online resources tend to focus on only one option for starting a divorce: filing for divorce in court.

The first three google results for "divorce in Massachusetts" (when searching in incognito mode to avoid my browsing history affecting the search) are: the Mass.gov Divorce site, the Mass Trial Court Law Library Divorce FAQ, and Mass Legal Help Basic Information about Divorce and Separation.  None of these sites mention mediation, mediators, arbitration, collaborative law or any alternative dispute resolution options. They all assume that when seeking divorce information you are ready to file with the court.  These sites don't tell you how to get ready to file with the court, or when you should file with the court, leaving many people to believe that filing with the court is the first step.

For example, Mass Legal Help answers the question "How do I start the divorce process?" as follows:
You file the Complaint for Divorce and other documents at the appropriate Probate and Family Court. If there is an Affidavit of Indigency in proper form, the clerk should approve it and stamp it, and give you a copy. You will also get a Domestic Relations Summons. Arrange for the sheriff to give a copy of the complaint to your spouse. When the sheriff does this, it is called "service of process," meaning that the sheriff has served (legally delivered) the papers to the spouse.

Before trial, either party may request that the court make temporary orders, for example concerning custody, child support, or visitation. Either party must request a pre-trial conference, and then there is a final hearing, the trial.
WRONG!

The answer provided by Mass Legal Help is the answer to a completely different question: "How do I start a divorce after I have exhausted all options for reaching an agreement?"

Filing with the Court should not be the first step in a divorce case unless there are emergency issues that cannot be resolved through agreement, such as when there is ongoing domestic violence or financial dishonesty.  Even in cases where there is an emergency that requires going to court immediately, only a small percentage of cases go to trial.

95% of divorce cases settle.

Before you start any divorce process, you should first ask yourself, what are my goals with the divorce.  If most divorce cases settle, then how do you get to the best settlement in the most efficient way possible? You find the divorce process that is right for you.

In most cases, the out-of-court options available for starting a divorce will lead to faster, cheaper and less acrimonious resolution than going to court.  There is a whole spectrum of options for getting divorced in Massachusetts and what you choose depends on how much help you want with all of the various issues involved in a divorce.

We believe there is a right answer to the question "How do I start the divorce process?"  The right answer should inform people of their right to go to court and of their right to settle outside of court.  The right answer should highlight the various options available and the benefits of reaching agreement out of court.  We have drafted the right answer in our previous post available here.

In addition, our next post will focus in greater detail on each of the options for starting a divorce:

Starting the Divorce Process: Part 3 - What is the Best Way to get Divorced?


Starting the Divorce Process: Part 1 - You have Options!


There are many resources available to help you answer the question "How do I Start the Divorce Process?"  Unfortunately, many of them only tell you part of the story.  This three part blog series will explore why that is and make an effort to gather all of the information in one place.  In Part one we provide you with our answer to this question.  In Part two we explore some of the other answers you might receive to this question and explain why they are incomplete.  In Part three we provide a more complete answer with an in-depth summary of each divorce process option.

How do I Start the Divorce Process?

Divorce is a legal, financial and emotional process for ending a marriage.  In Massachusetts the legal portion of the divorce is either contested or uncontested.  “Uncontested” means that you both agree to the divorce and have reached a full agreement on all legal and financial issues.  An uncontested divorce can be filed in Massachusetts using a Joint Petition for Divorce.  A “Contested” divorce filing is called a Complaint for Divorce, which you can file if you are not able to reach agreement on all issues, or one of you doesn't want to be divorced.

Either spouse has the right to file a Complaint for Divorce and seek the protections of the court and in some cases, such as where there is domestic violence or financial dishonesty, it is important to file the Complaint and start the court process.  If it is possible that you and your spouse will be able to reach an Agreement, then you should consider starting with a process that leads to an uncontested divorce.  There are numerous options for settling your divorce case before filing the legal paperwork, including mediation, collaborative divorce, attorney negotiation, and more.

When spouses are able to reach agreements, the risk of returning to court in the future is decreased, and when children are involved they will benefit from their parents learning to work together.  Which option is right for you depends on how much help you and your spouse want from professionals and how much control you and your spouse want to have over the process.  You should consider all of your options before deciding how you want to proceed.

Below you will find three charts that demonstrate the features and differences of each of the primary options for starting the divorce process:






Chart of each Process & the Features Included
(click to enlarge)



You may reprint or distribute this Chart on your website so long as the copyright and contact information for Kelsey & Trask, P.C. remains attached to the bottom of the image.

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To read more visit:

Starting the Divorce Process: Part 2 - Is there a Wrong Way to Start?

Starting the Divorce Process: Part 3 - What is the Best Way to get Divorced?


Wednesday, May 7, 2014

Divorce Litigation Problems: The Judge Never Made a Decision

The Probate and Family Court in Massachusetts is underfunded and cannot handle the amount of litigants that seek relief there each year in as timely a manner as everyone would like.  The Court staff are not ignoring cases, but there just aren't enough court staff to handle the demand.  Because of these issues, the wait time for a hearing in most counties has increased significantly.

But finally after months and months of waiting your hearing is finally here.  The Judge hears your case and takes the issues under advisement.  And now the waiting begins again.  How long are you expected to wait for an answer from the Judge?  What happens if a decision is never made?  Or, even worse, if the decision was made but never recorded due to some clerical error?

In the past, our only option when these issues arose was to check in with the Judge's Lobby and find out if one of the Judge's secretaries could discover the delay.  Of course, this created more work for the staff, only making the problems worse.

To help alleviate the stress on their staff and give parties the formal ability to inquire about the status of their case, the Probate and Family Court has released the STATUS INQUIRY FORM (available here).

The form provides a formal way for parties (or their counsel) to inquire as to the status of a decision.  The form should be used only when the following decisions are at least this many days overdue:

  • 30 days since a Motion or Complaint for Contempt was taken under advisement.
  • 60 days since a Post Judgment Motion was taken under advisement.
  • 90 days since a Motion for Summary Judgment was taken under advisement.
  • 5 months since a Trial was taken under advisement.

While some have expressed concern regarding potential backlash of using this form, the form makes the contact information of the filer optional.  While, the court will obviously know that it was one of two parties, the Chief Justice has indicated that the individual courts are on board with the use of the form and have encouraged its use.

If you want to avoid these problems altogether, consider alternatives to litigation.

Saturday, May 3, 2014

How is Collaborative Practice Different?

Yesterday I attended the Massachusetts Collaborative Law Council's 2014 Advanced Training Forum.  The attendees included lawyers, coach/facilitators, mental health practitioners, financial neutrals and other professionals who help divorcing couples.  There were the usual discussions about finding better ways to help our clients divorce, about finding more clients, and about finding other professionals willing to practice collaboratively.  And there was also singing!

There was singing!

I'm breaking a vow we all took, just by telling you that there was singing.  But you need to know.  Because this is how Collaborative Practice is different:

Collaborative Practice has changed how I see conflict, and that has changed how my clients experience their divorce.

I spent the first five years of my career litigating divorce cases in court.  I started out idealistic, wanting to help every client reach their goals and find their peace after the divorce.  I asked them what their life looked like a year from now, five years from now, etc.  I wanted them to focus on the future.  But I started to burn out.  I thought it was because many of my clients were not able to reach their goals through the court process and that was frustrating.  Was I just not a good enough litigator?  If I was better, would my clients get more of what they wanted?  To be a litigator, did I just have to be less idealistic?  Or was there a better way?

For the five years that I only litigated, I worked with court staff and Judges that for the most part I liked.  I worked with opposing attorneys that for the most part I liked.  But only one became a friend.  Think about that for a moment.  If you work in a factory, or a shop, or an office, is it normal to work there for five years and meet only one person you can call a friend?

That disconnect can't all stem from the fact that we are in the business of arguing against each other.  Athletes in many sports physically attack each other, which seems more drastic than verbal argument, and yet they can still be friends after the game.  The problem is that in court, and especially in divorce court, this is not a game.  People's livelihood and their time with their children are at stake.  How do you become friends with the person who just took away your client's children?  I guess they were just doing their job?  I would have done the same thing in their position, right?  They're not my children.  To be a litigator and have friends, did I just have to be less idealistic?   Or was there a better way?

As a litigator, you have to advocate for your client's position and against the opposing party, and therefore against their advocate, but we also have to work together to settle cases.  This is a conflict that litigation teaches us to solve by threatening the risks of court and scaring people into settling rather than letting a judge, a stranger, decide their fate.  And if that doesn't work there is also the threat of the immense cost of a trial, which for middle and lower income families amounts to mutually assured destruction.  There has to be a better way than solving family disputes with the nuclear option.

That is why I gave Collaborative Practice a try.  I heard it was different.  I didn't believe it.  But it was only a two day training.  Why not give it a try?  Three years later I don't remember most of the details of my training.  I attend numerous CLEs (continuing legal education seminars) and even teach a few.  Most of them include a panel of lawyers and other professionals, and every time I learn one or two important tidbits that I can add to my practice, but I seldom learn anything life-altering.  I have the manual to reference if necessary, which is how I feel about most training.

The Collaborative training was different.  The one thing that still stands out for me from my Collaborative training is not some practice tip or tidbit I learned.  What still stands out is that the trainers genuinely seemed to be friends.  I left that training motivated to change my practice.  Honestly, it was not because I really understood how much better Collaborative Practice would be for my clients, but I saw how much better it could be for me.  I saw a glimpse of a world in which I could help my clients through their divorce, and still be who I was and who I wanted to be.  I didn't see at first that by changing myself I would also change my clients.

Collaborative Practice is different for me because I now get to work with people that I can be friends with, and who inspire each other to work harder, smarter and better.  As a Collaborative Divorce attorney, you still have to advocate for your client's position and sometimes that is against the opposing party's position.  But instead of seeing this problem as a conflict that requires threats to overcome,  Collaborative Practice teaches us how to transform that conflict in different ways.  That is not easy.  In fact in many ways it is easier to just try and beat each other in court.  Even with the risk as long as you win some, you've done your job.  At least the job as you've defined it.

Collaborative Practice is different for my clients because I now define my job differently.  If my divorce clients leave having no better idea how to deal with conflict than when they came into my office then I have failed.  Divorce is a by-product of conflict in the marriage, but if people are ending their marriage to escape that conflict, why do so many couples end up in long drawn out court fights for years, essentially continuing that conflict?  Because somewhere along the line the system failed them.

Collaborative Practice is different because we accept that the conflict is a part of life and we don't fight it.  Instead we use the energy of that conflict to help both sides understand their needs and wants better.  We even find ways to sing about it.  Collaborative Practice has changed how I see conflict, and that has changed how my clients experience their divorce, and therefore how they experience their life after divorce.

Collaborative Practice has changed how I handle all of my other cases too.  The theme of the MCLC Advanced Forum from yesterday was Mindfulness.  It is impossible to be more aware, more mindful of how you do something and not have that carry over into other parts of your life.  Collaborative Practice is not just different, it is better for everyone involved and it changes them.

If you're reading this and you have worked within the Collaborative community then you already understand what I am talking about.  If you're reading this and it is the first time you've heard about Collaborative Practice, you might be wondering what we're smoking.  I'm not asking you to buy into it right away.  Just give it a chance and maybe it will change you too.

Thank you to the great speakers from yesterday's program: Ronald D. Siegel for teaching us the importance of finding happiness and David Hoffman for teaching us how being more positive will change the people around us (and for leading the singing).

Thank you to Judy Ringer for her active program on transforming conflict (physically and verbally).

Thank you to Mary Sheridan and Carly Baker for leading a workshop with me on working with a new Collaborative Team.

Thank you to Michelle Raymond, Helena S. Friedman, Leila Wons, Maria Torella, Diane Pappas and all the other attendees at our workshop for sharing your experiences, your great insights and your excellent questions.

Thank you to the Advanced Training Committee at MCLC for organizing such a great event.

Thank you to Jeanne Cleary for introducing yourself at the end of the training and sharing your wonderful energy.

and finally Thank you to Rackham Karlsson for reminding me that I need to give Agents of S.H.I.E.L.D. another chance.


Thursday, May 1, 2014

Can Property be Divided by the Court in a Paternity Action?

Our last post addressed a recent decision by the Massachusetts Appeals Court to extend attorney's fees liability to opposing counsel on a frivolous appeal.  In this post we discuss why was the appeal was considered so frivolous?

In Callahan v. Bedard, Case No. 13-P-914, decided on April 23, 2014 (available here), the Appeals Court was asked by a father to overturn a lower court's refusal to set aside a Judgment in a paternity case.  The father had signed an agreement for settlement that was incorporated into a Judgment by the Probate and Family Court judge, and about six months later changed his mind and asked the Probate & Family Court to undo the Judgment pursuant to Mass.R.Dom.Rel.P. 60(b).

While not explicitly stated by the Appeals Court, the fact that the father was trying to back out of a deal he
had willingly made certainly weighed against him.  In addition to the father's bad faith, though, the Appeals Court directly addressed the issue the father wanted to undo:  the assignment of certain property (a condo) into a trust for the benefit of the child.

The father argued that the Probate & Family Court did not have jurisdiction on a paternity action to include property division issues.  The Appeals Court could have relied heavily on the father's own submission to the court's jurisdiction by signing the Agreement, or the fact that the Agreement itself is likely also a contract.  Instead, the Appeals Court addressed the jurisdiction issue, and determined that "the inclusion and enforcement of the agreement lay well within the jurisdiction of the probate court."

The Appeals Court pointed to three grounds for the court's subject matter jurisdiction over the property division issues: equity jurisdiction, precedent, and Chapter 209C (the statute relating to actions between parents of children born out of wedlock).   The Appeals Court's found that the mother won on all three of these evaluations:
"First, the decision to incorporate the parties' agreement into the judgment falls squarely within the probate court's general statutory authority to impose equitable remedies. Furthermore, as precedent such as Sutton v. Valois, supra, has established, the unmarried status of the father and mother does not diminish the court's equitable powers.  Finally, the enforcement of paragraph 9 rests within its specific statutory jurisdiction to care for the welfare of a child born out of wedlock, as contemplated by c. 209C, §§ 3 & 9."
It is unclear from this decision how far the Appeals Court would extend jurisdiction for these issues.  Would the Appeals Court have upheld this property transfer if ordered by the Judge, rather than by Agreement?  Probably not, but this decision might open the door to argue property division issues in paternity cases.

In addition, this decision certainly opens the door for mediators and other alternative dispute resolution processes to include these issues in agreements between unmarried parents.

For more information on unmarried parents visit our website.

(Note: although “unpublished” opinions of Appeals Court panels do not create the same binding precedent as decisions of the full Appeals Court, these so-called “rule 1:28 decisions” are available online, and are frequently cited by attorneys and judges in Massachusetts for their persuasive value.)

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