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.
The American Bar Association posted an interesting article about an increase in business for divorce law firms handling higher end divorce. A link to the article is here. While the news is full of stories about couples postponing divorce in the economic downturn, some couples with assets are choosing to divorce now for asset valuation issues. For divorce purposes, assets are likely to be valued at the time of settlement or trial. Electing to divorce during the economic downturn locks in lower valuations on securities and real estate, leading to lower equalizing judgments. Our experience has been that some clients have been able to retain assets in divorce for zero valuation because of the market declines, where in prior years they would have to pay to retain the assets in divorce.
This development may speed the adoption of the collaborative divorce model in Oregon, as our experience has been that the process more frequently selected by higher asset couples.
by C Sean Stephens on June 15, 2009 · 1 comment
We like divorce information lists! The Association of Divorce Financial Planners posted a useful article on their site captioned “Fifteen Critical Financial Mistakes in Divorce.” The list is useful, however, I am always surprised about how much good divorce information is on the web that omits collaborative law as an option. The article says it is a mistake to not consider mediation, however, there is no mention of collaborative divorce as an option. Parties considering divorce are well served to consult with lawyers trained both in traditional litigation and collaborative divorce to make sure that all options are available to them. I would add a 16th critical financial mistake to the list: “Failing to explore whether the collaborative model is a good fit for your case. “
The Institute for Divorce Financial Analysts published the results of an interesting survey on June 11, 2009. In a collaborative case or a traditional case, a Certified Divorce Financial Analyst™ (CDFA™) can forecast the long-term effects of the proposed divorce settlement. A CDFA can also help attorneys by helping the client make financial sense of proposals, and empower their clients with the knowledge they need to make smart financial choices. An April 2009 survey of CDFA’s indicated that the ways in which divorce proceedings are handled has changed substantially with the dip in the stock market and home prices. The survey found some clients in an indefinite holding pattern while waiting for the economy to recover. Clients were also considering non-traditional, creative solutions to property division problems, such as sharing the marital home post divorce until the home sells or the market improves. A link to the article published by the IFDC is here.
As a Portland Oregon based divorce law firm, the attorneys at Stephens Margolin P.C. have seen the impact of the housing crisis and the declining stock market on clients. In recent litigation, we have seen courts ordering one spouse to pay the other to keep a house that is underwater. Parties contemplating divorce are well served to consult with lawyers trained in both traditional litigation and collaborative divorce to ensure that all resolution options are available.
