Monday, September 28, 2009

Should Parenting Plans change with the age of the children?

I have recently become a Father and I spend a lot of time amazed at how my daughter changes every day. Those changes mean that her needs continue to change and grow, and paying attention to those changes is part of effective parenting.

Every case is different, especially when it comes to family dynamics, so every case requires your attorney to listen and learn about YOUR family. Because every family is so different, there cannot be specific guidelines on custody and visitation for every family or even every child.

The Court does try to recognize that their are certain developmental stages that each child goes through, and that it is important for both parents to be involved in the child's life for their development to be complete, and also that at each stage, a child's needs are different.

In an attempt to recognize at least some generalities in these differences, a committee of mental health practitioners, family law lawyers and Judges was formed. They wrote a very useful guide to shared parenting called Planning for Shared Parenting: A Guide for Parents Living Apart. Our firm recommends that any parent involved in a custody case read this brochure and use it as a starting point for thinking about and discussing how their child's unique needs can be met by a well-thought out and tailored Parenting Plan, and how that Parenting Plan will have to change as the child grows older.

Monday, September 21, 2009

The Huxtable's Divorce: Collaborative Law, Mediation or Litigation - Part II

The Huxtables and Collaborative Law:

Cliff is a doctor and Clare is a lawyer. They have five children. They both share in parenting and managing the finances. Cliff's office is located in the home. Some of the children live at home but the number is constantly changing because Clare and Cliff keep their doors open to their children.

Clare recently informed Cliff that she has met another lawyer who she feels has more in common with and she wants a divorce. Cliff is shocked but after dealing with the initial shock, he realizes that he does not want the process to be acrimonious or to affect their relationship with the children. He has seen how other doctors have had their families and practices torn apart by drawn out litigation and does not want his children or patients to suffer.

Both Clare and Cliff consult with attorneys and are informed of the possibility of proceeding through mediation, collaborative law or litigation. Although, Cliff is wary of litigation, he is afraid of mitigation because Clare is a lawyer and he feels she would have an advantage. He agrees to hire a lawyer trained in Collaborative Law and requests that Clare does the same.

Cliff's lawyer presents a proposed Collaborative Law agreement in which both Cliff's attorney and Clare's attorney agree not to represent the parties if they change their mind and decide to litigate. Clare sees the value in having two attorneys who are vested in the settlement and would be motivated to avoid litigation.

Clare, Cliff and their attorneys meet ten times over the next twelve months. At times the process seems to be dragging and Cliff becomes very frustrated with the significant difference in values presented by his expert and Clare's expert for both his medical practice and Clare's interest in her law firm. He feels like they are spending too much money on experts and lawyers and are no closer to a settlement.

Clare has become very defensive in the Collaborative Law meetings because Cliff has begun requesting more and more restrictions on the parenting plan with the children, which has become overly complicated in her opinion. She feels that Cliff is trying to punish her for having an affair and not focused on what is best for their children.

Both Clare and Cliff explore litigation with new attorneys but because of the cost already invested with their Collaborative Law attorneys, they agree to give it another try and after two more meetings they are able to reach a Separation Agreement, which is presented to the Court with a Joint Petition for Divorce.

Cliff remains very bitter after the process because of the very high cost spent by both parties on their counsel and the length of time the process took.

COULD THIS HAVE GONE BETTER: Because of Cliff's fears and Clare's legal expertise it is unlikely this process could have gone much better. It is probable that Mediation, if successful, would have been a much quicker and cheaper process. But it is also possible that Mediation would have failed because of the imbalance of power between Cliff and Clare when it comes to their legal knowledge (although financially they are probably on fairly equal footing). Depending on the mediator and their style, Cliff's anger over Clare's affair could also have hampered this process.

Because of the business interests and the difficulty of assigning values to their business when they represent both assets and income, they could have been better served by having one agreed upon business valuator. This could have been done by the Collaborative Law attorneys or through mediation. Separate business valuations can often drive up the cost of a case, whether in Collaborative Law or Litigation.

Don't forget to vote for what the Kramdens should do: leave a comment here.

Tuesday, September 8, 2009

How NOT to Declare Bankruptcy

Declaring Bankruptcy is a time-intensive and technical process involving financial research, preparation of documents and schedules, and attention to detail.

This is NOT how one "Declares Bankruptcy".

If you would like to learn more about the correct way to declare bankruptcy, contact Attorney Matthew Trask or Attorney Justin Kelsey for a one-hour initial consultation at (508) 655-5980.

(Thanks go to Jonathan Eaton and NBC's "The Office" for providing the inspiration for this Blog).

Wednesday, September 2, 2009

The Cleavers Divorce: Collaborative Law, Mediation or Litigation - Part I

The votes are cast - The Cleavers and Mediation:

Ward is a businessman and June is a stay-at-home mom. They have two children Wally and Beaver. Ward handles all of the finances and June handles most of the home care including parenting, although once in a while Ward is needed to help discipline the children (in a very stern but fair kind of way).

Ward and June agree that the spark and color had left their marriage long ago and that they were only staying together for the children. They have agreed that a divorce would be best and have already sat down to a family meeting with Wally and the Beaver and explained that although Mom and Dad are getting a divorce, they will still both be involved regularly in the children's lives, that it is not the children's fault and that they both love the children very much.

Ward, eager to move forward with the divorce quickly and as cheaply as possible, suggests that they attend mediation and provides June with the name of a mediator he has found. Agreeing with the logic of using a mediator, June agrees and they attend their first mediation meeting.

At the first meeting, the Mediator explains how mediation works, telling Ward and June that the mediator does not represent either of them, and that their job is only to help Ward and June reach an agreement, not to steer them in any particular direction. The mediator explains that they will both have to provide a Financial Statement and that they should begin thinking about what they each want for a custody and visitation plan, and for the division of assets and liabilities.

After the meeting Ward informs June that he wants joint custody and that he will help her do her Financial Statement since he has all of the financial information. He also wants to sell the house and he asks her to agree to this immediately so they can list the house for sale as soon as possible.

June is worried that she doesn't know enough about their finances to know whether the house has to be sold. She also realizes that she doesn't really know what joint or sole custody means. June talks to her friends who all suggest that she meet with an attorney. After meeting with a few attorneys, June realizes she needs help and hires an attorney. Upon realizing that June has hired an attorney, Ward feels like June was trying to get an advantage behind his back and hires an attorney as well. They end up proceeding through litigation, because June's attorney insists on filing the Complaint for Divorce to protect the assets with the Automatic Stay and to provide for mandatory discovery. Eventually they settle their case at Pre-Trial.

COULD THIS HAVE GONE BETTER: Because of June's lack of knowledge about the finances it was likely that she would feel uncomfortable at some point in the mediation, even if Ward hadn't pushed her at the beginning to be more ready to make decisions. Her lack of information was going to make it difficult for her to make decisions. This could have been resolved by June being more aggressive, but if this has not been the pattern in the marriage it was unlikely to change now. For these reasons June needed an adviser/advocate, i.e. her own lawyer.

If the parties had communicated their intentions better, it is possible June and Ward would still have been able to use mediation, and just have their lawyers advise them individually as to the Agreement and disclosure of financial information.

This was likely a more ideal case for Collaborative Law, because of June's need for a representative. In Collaborative Law both parties and lawyers agree to commit to working towards a settlement and to not file litigation. In a true Collaborative Law agreement, the lawyers also agree that if the case goes to litigation that they will not represent the parties, i.e. both lawyers are thus committed to the settlement path as well. Although there's the danger of having to pay two lawyers each, the advantage is the great potential for a less acrimonious process.

Because both Ward and June committed to settlement, but just had an imbalance of power/knowledge, they would have been best served by Collaborative Law.

There's still time to vote for what the Huxtables and Kramdens should do: leave a comment here.
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