by C Sean Stephens on December 12, 2009 · 2 comments
How do you get what you want in a divorce? What if you want something the court can’t give you? One of the primary differences between a Collaborative divorce and a litigated divorce is Collaborative Law’s focus on the goals of each party vs. litigation’s focus on positions. In a litigated divorce, negotiation involves positional bargaining instead of interest-based negotiation which is the basis of Collaborative Law. Parties argue over what percentage of the assets or liabilities or parenting time they will receive. In the litigation model, parties may start out with extreme positions hoping to end up somewhere in the middle. Other issues are determined more or less automatically, like setting child support, awarding the dependency exemption, or determining custody. There may be argument and negotiation, but there isn’t a lot of dialogue. Parties take what a court would give them rather than what they really want.
In Collaborative cases, parties focus on how to achieve their goals. The parties set goals, gather information, and then brainstorm to generate options. After evaluating the options, each party asks for what they want to help meet their needs. There are no automatic formulas. Rather, there are sincere discussions that lead to agreement. The process empowers the parties to ask for what they really want, and usually the parties reach an agreement where they are both satisfied.
by Daniel Margolin on December 8, 2009 · 4 comments
Steve McDonough at The Divorce Collaborative LLC posted an excellent article on how to survivie the holiday season during and after divorce. The entire article can be found here: http://www.divorcecollaborative.com/surviving-holidays-divorce/
The holidays can be a very stressful time and they are made even more stressful by a divorce being in process or by the new family dynamic created by divorce. The collaborative divorce process can assist families in addressing these issues in a more productive and constructive manner.
by C Sean Stephens on December 6, 2009 · 0 comments
Despite the group problem solving that takes place in a collaborative divorce, sometimes spouses and their lawyers get stuck. We see it in our Oregon Collaborative Law cases, and getting past a sticking point is critical to success in the collaborative process. Collaboratively trained lawyer Dick Price of Texas has a great collaborative blog with insightful posts on the collaborative process. He recently wrote a post about how to get out of an impasse in a collaborative law case. His article follows:
5 Tips for Getting out of an Impasse
Sometimes, no matter how hard you try, it seems like you reach a dead end with your spouse on an issue in a Collaborative Law case. It happened while you were together, and it shouldn’t be surprising that it still happens after you split up. You’ve thought about possible approaches and made plenty of suggestions, but no agreement seems forthcoming. While persistence can be a virtue in some situations, it can simply lead to frustration in others. If you keep trying the same tactics that haven’t worked on the same issues, you probably aren’t going to reach an agreement. What you need is a change. Here are five brief possibilities to help you get out of a negotiation rut and into an agreement.
1. Expand the pie. Review the situation and come up with some other possibilities. If you have gotten down to a choice between two options and neither party is willing to agree to the other side’s choice, then back up and come up with some other choices. For example, if the decision is about who will take care of the children after school, and each parent wants a different grandparent to be in charge, maybe you should come up with other possible caregivers. If you rule out the current choices and look for others, you may come up with another satisfactory choice you had overlooked. Avoid assumptions about how the issues should be decided. Open up your imagination to look for other solutions. Get out of the rut.
2. Expand your point of view. Oftentimes, we focus so much on our own thoughts and ideas that we begin to have trouble understanding how anyone could possibly think another way on an issue. When that happens in negotiations, that narrowing of focus can lead to impasse. One solution is to listen to the other party and then reflect back to him or her what is being said. If you can just put into your own words what the other side is saying or asking for, it can increase your understanding of their position and may open up your thoughts to new possibilities. In some Collaborative joint meetings, it has been helpful to ask each party to state the other party’s position on an issue and to explain why the party favors that position. It is also common, in preparation for Collabortive meetings or mediations or just plain negotiations at the courthouse, to have my client tell me what the other party would say about various issues. That helps me understand, but it also helps each client/party who works on that. Greater understanding of the issues and the other party can help lead to agreement.
3. Go back to your broad goals. It is very easy in negotiations to get drawn into discussions of small points. As you get into the smaller, lower-level goals, the options available are reduced and the potential for impasse increases. Sometimes you get off track and spend time on things that are irrelevant or just marginally useful. One way to get out of that trap is to stop the discussion and go back to your goals. For example, if you are stuck in a discussion about whether to take part of a retirement account or keep the house (and its equity), it can be helpful to review your major goals. If one of the goals was to maximize your retirement resources, then you probably need to take the retirement account. If a goal was to keep a stable home for the children, you might want to keep the house. If your goal was to obtain or have access to cash, and if you can realistically sell the house quickly, then you would probably want to get the house and sell it. Without constantly keeping the goals in mind, sometimes parties get into emotional arguments over assets because they “love” the house or because their hard work created the retirement account. The goals are more neutral and should always be the ideal in mind as the parties negotiate.
Another problem that frequently occurs is that you have gone from macro level goals to micro level goals. In other words, instead of trying to create ways to stay in daily contact with your child (macro goal), you get into an argument about whether your spouse must guarantee that s/he will be home at a certain hour (micro goal), rather than looking at it broadly and trying to find as many ways as possible to communicate with your child. Dealing with the issues at a broader level increases the number of opportunities to find solutions.
4. Get professional help. We usually work in the team model, using two attorneys, a neutral financial professional (FP) and a neutral mental health professional (MHP). We sometimes have a separate child specialist. The FP and MHP have been extremely helpful in cases where the parties get stuck. On financial issues, the financial professional can ask the right questions as well as suggest alternative solutions. The MHP can help the process generally by redirecting attention to constructive areas and also by maintaining a safe atmosphere for the parties to express themselves. Being perceived as neutrals gives the FP and MHP much more credibility and effectiveness than they would have if they were linked to just one party.
5. Start with areas of agreement. If you come to a standstill somewhere, you should consider switching topics and working on subjects where you expect to agree. Then you can build some momentum. For example, if you get stuck on how to divide up the bills, you might work on how to divide up the motor vehicles or clarify the holiday visitation schedule or clarify college plans for the kids. There are always some areas where the parties will easily agree, and even reaching easy agreements can result in good feelings and a willingness to cooperate. Of course, that doesn’t mean that both sides will agree on everything once they start agreeing, but the momentum can be a helpful force for you.
Conclusion: It’s not unusual in a Collaborative Law case to get stuck more than once. Collaborative Law is not necessarily an easy process to work in, but the results are so much better than in litigation that it is worth the effort. When those times come and you start to realize that you are at an impasse point, try out one or more of the above techniques. They should be great tools to help you reach a successful conclusion for your clients.
by Daniel Margolin on November 19, 2009 · 1 comment
Lord Kerr of Tonaghmore, a justice in the UK’s new Supreme Court, said that there had been an “impressive” expansion in the use of what is called the “collaborative” approach to divorce.
In 2003, only four lawyers in England were offering the new out-of-court method, he said. Now the number had risen to 1408 in England and Wales and 100 in Northern Ireland – with a rise of 87 per cent in cases to an estimated several thousand a year.
Lord Kerr, a former Lord Chief Justice of Northern Ireland, added: “Perhaps the most inspiring statistic of all is that of the settlement rate of collaborative law cases – a remarkable 85 per cent.”
by Daniel Margolin on September 22, 2009 · 0 comments
In general, the courts have been slow to accept collaborative divorce. In Oregon, there are no formal court pleadings associated with the collaborative process.
New York has taken the lead with collaborative divorce and opened teh Collaborative Family Law Center, the first court-based collaborative law center in the country. The center will provide divorcing spouses with the chance to work with collaboratively trained attorneys.
Chief Judge Jonathan Lippman said, “The Collaborative Family Law Center was established to provide parties with a more child-centered, needs-based alternative to matrimonial litigation. By promoting collaborative law and mediation from the outset, before the parties proceed down an adversarial path, the Center aims to mitigate emotional friction – friction often exacerbated by New York State’s lack of no-fault divorce. The collaborative process minimizes the all-too-familiar cost of divorce – wasted time, money and the often hefty emotional price paid by children caught in the middle. It is a more respectful approach that lets couples decide for themselves what is best for their families and their futures.”
by Daniel Margolin on September 8, 2009 · 0 comments
In today’s Oregonian, Jacques Von Lunen wrote an article on the affect of divorce on pets. Specifically, what the law provides with respect to pet visitation and custody. Dan Margolin was interviewed for the story and discussed how the collaborative process can benefit parties with pet issues are part of their divorce. The artice can be found here: http://www.oregonlive.com/pets/index.ssf/2009/09/divorce_and_separations_can_se.html
by Daniel Margolin on June 24, 2009 · 1 comment
An article in The Independent, a British newspaper, discussing the effect of the current recession, discussed the recession’s effect on divorce. The article quoted a British divorce attorney as follows: “Increasing numbers of her clients are turning to a pioneering scheme which Brethertons have imported from the United States. Called Collaborative Law it strives to promote fair and conciliatory settlements. “Divorce is a sad fact of life,” says Jones. “The important thing is how people handle it. The quicker it is addressed the better the chances a couple can come out not exactly friends but united in the parenting of their children. Under this collaborative scheme couples enter into a contract not to go to court, to put the children first, to treat each other with respect, to adopt a problem-solving stance and put the interests of the family as a whole before their own individual interests.” The scheme is gaining popularity as economic times get harder. Divorce is expensive and the litigation route is rigid. A couple can spend £40,000 on legal fees which would be better spent on a deposit for a new home for the husband. “This is much more controlled emotionally,” Brethertons’ head of family law says. “As lawyers we don’t make as much money from this as from litigation but we make up for that because we’re handling more cases this way.” Recession has given the approach a real boost. “Women like it because it feels emotionally better,” she adds, “and men like it because it gives them more control and it’s cheaper. And its better for the kids.””
As a firm practicing only family law, we try to steer clients in difficult circumstances towards good choices. Focusing on your children’s success is a good choice. Being economically rational about the property division is a good choice. Loosing sight of what is important to you, your children, and your family in an attempt to “win” is a bad choice.
A new study commissioned by Wakefield on behalf of the New York Association Of Collaborative Professionals found that 1 in 5 Americans know someone who got so caught up in “winning” a divorce that their family, work or social life suffered. A link to the press release about the study is here.
The Collaborative Practice model for divorce can keep a couple focused on a more positive outcome, and avoid the stress and anxiety of a courtroom battle. Stephens Margolin P.C. is committed to the growth of collaborative divorce as an option for Oregon families.
As a divorce lawyer in downtown Portland Oregon, I frequently get asked about hidden assets in divorce in traditional litigation cases. Sometimes a client is concerned the opposing party may be concealing assets. Sometimes individuals are curious about their obligations to disclose assets in divorce. There are many discovery tools available to lawyers to help discover assets a party may own. For example, ORS 107.089 mandates basic discovery between parties in divorce if a copy of the relevant statute is served on the other side. (See our blog post regarding statutory discovery here) There are also serious ethical consequences for lawyers that assist clients in concealing assets during divorce.
In collaborative divorce cases, parties have an obligation to disclose all relevant information to the other side. If both parties are sincerely engaged in the collaborative process, the process is superior to the traditional litigation model in many ways. But what happens if someone misuses the collaborative process to conceal assets? The purpose of this post is to discuss what Oregon divorce courts can do after divorce if an asset was left out of the distribution.
Assets can be “omitted” two ways, intentionally or accidentally. ORS 107.452 specifies what the divorce court can do if a party discovers an omitted asset post divorce. If a party alleges that significant assets belonging to either party (1) Existed at the time of the entry of the judgment; and (2) Were not discovered until after the entry of the judgment; the divorce court must reopen the case.
If the assets were accidentally or inadvertently omitted from the distribution, the court shall make such distribution of the omitted assets as is just and proper in all the circumstances. Basically, if the omission was an accident, the court will divide the asset using the same legal standard as if the asset were discovered prior to the divorce.
The court can hand out harsher remedies in the event an asset was intentionally concealed. If the court finds evidence of intentional concealment, it can order:
1. The division of the appreciated value of the omitted assets;
2. The forfeiture of the omitted assets to the injured party;
3. A compensatory judgment in favor of the injured party;
4. A judgment in favor of the injured party as punitive damages; or
5. Any other distribution as may be just and proper in all the circumstances.
The court can order attorney fees on a motion to reopen a divorce case. A fee award is mandatory if the court finds a party intentionally concealed assets. We previously blogged about how the court decides if fees are appropriate, and if so, how much. Many of the factors the court considers in awarding fees factor in to concealed asset cases.
There are statutory remedies if an asset is accidentally omitted in the collaborative process, or worse, if the collaborative process is misused to conceal assets. Time limitations apply. If you discover an omitted asset in a collaborative case and the omitting party will not remedy the situation voluntarily, you should consult with an experienced family law attorney.
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