WE HELP FAMILIES RESOLVE CONFLICT PEACEFULLY


Tuesday, August 14, 2018

What Does it Mean to Call Yourself a Collaborative Lawyer?

It's not unusual to hear a lawyer describe themselves as collaborative.  I've also heard "I haven't taken the Collaborative Law training, but I certainly consider myself collaborative!"

But what do they mean by that?  Does it mean they offer collaborative law as an option to their clients, or just that they're willing to start a case in out-of-court negotiations and see where it leads?  Does it mean that they understand the collaborative law principles, or simply that they try to be civil with opposing counsel?

Civility and Collaboration are not the same thing.  In fact, many lawyers think of true "collaboration" as a dirty word.  I imagine them picturing the World War II signs labeling French civilians as "collaborators" and shuddering at the thought.  The problem with this mentality, especially in family law, is it means that you are thinking of the opposing party (and their counsel) as the enemy.  You might be civil to an enemy, but begrudgingly at best.  You might cooperate with an enemy for mutual self-interest, but you'll never trust them.  You'll never truly want to work together with an enemy.

Collaborative Law asks us to take a different approach.

The opposing party in a conflict is not my enemy.  They may have some competing interests, but in all likelihood they have many of the same goals and interests.  If you ask most parties in a conflict, they would both agree that they want to minimize lawyer fees, that they want to minimize the amount of time they spend in conflict, and that they want to have control over the outcome.  In a family case, they will almost always agree that the best interest of the children is a priority and that financial stability is also an important goal.

When we recognize that the joint goals often significantly outnumber and outweigh the areas of disagreement, we acknowledge the value of working together towards a mutually agreeable resolution of the conflict.  We see the value in collaboration, because we are not enemies just because we have a disagreement.  Even if that disagreement is painful and difficult, when we acknowledge the human dignity of the other side of a conflict, we invite a mutual respect and we make room for creativity and cooperation in joint problem solving.

Being a Collaborative lawyer is not just about civility.  That should be a given anyway.  Being a Collaborative lawyer is about shifting from a mindset where the other party or counsel is the problem to overcome, to a mindset where we define the disagreement as a joint problem and try to solve it together.

So if you want to call yourself collaborative, take the time to learn what it's really about.  Challenge yourself to set aside your misconceptions about problem solving, and offer to your clients an opportunity to find peaceful resolution instead of waging war and creating an enemy.

If I've piqued your interest or curiosity, there is an upcoming training in Salem, Massachusetts on September 20 and 21.  Learn more or register here.


Bringing Home the Bacon, and Frying It: The Appeals Court Defines Economic Partnership

Guest Post from Valerie Qian*

Does it make a difference for my legal rights if my spouse and I lived together before we got married?

The lawyerly answer, which I know is one most people can’t stand, is “it depends.” The Bortolotti v. Bortolotti case, a 1:28 unpublished decision that came down from the Appeals Court in April 2018, sheds some more light on this situation. The relevant statute, M.G.L. c. 208 §48, provides that the legal length of a marriage may be extended by periods of cohabitation if the parties had an “economic partnership” during these periods of cohabitation. The Bortolotti decision clarifies that “economic partnership” exists both in situations where both parties contribute income to the household, and in situations where one party may be economically dependent on the other. The decision further notes that when a judge exercises her discretion to exclude premarital assets from the marital estate, she should use a valuation of those assets at the time of the marriage.

The Appeals Court’s approach to the definition of “economic partnership” is broader than the lower court’s, and rightly takes a more broadminded approach to what this should mean. The commonsense definition of “partnership” suggests that both parties to a partnership contribute to it. But what qualifies as a “contribution” in a marriage/cohabitation partnership? The lower court seemed to only consider economic contributions in the form of one partner’s contributions of his income to the parties’ expenses during their cohabitation. Because the other partner did not contribute financially during their cohabitation, and appeared to be economically dependent on her male partner, the lower court did not believe there was a partnership.

The Appeals Court’s broader definition of “economic partnership” suggests that contribution to an economic marital partnership may involve more than simply depositing your biweekly paycheck into the joint bank account. While one party may be economically dependent on the other, she may still be considered a “partner” in an “economic partnership” that extends the legal length of the marriage for alimony purposes. The Appeals Court keeps its rationale for this broader definition of “economic partnership” grounded in rules of statutory interpretation and in case law, but the wider implications of this definition are clear and, I think, only right. Here in April 2018, we should be beyond the point where we believe that a stay-at-home wife (or husband) who is not bringing home the bacon is not contributing financially to the economic partnership of a marriage simply because she (or he) is only frying it. 

*Valerie Qian has been an Associate at Skylark Law & Mediation, PC since February 2013.  Valerie's practice includes family law & divorce representation, collaborative law and mediation, and juvenile representation.
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