aggressive divorce

In a Collaborative Divorce, You – the Client – Have the Power

I recently participated in a Collaborative Six-Way Meeting, which comprised both spouses, their lawyers, a divorce coach and a financial specialist. During this meeting, my collaborative counterpart was very aggressive. While that tactic can work in a case being negotiated through the court system, an overly aggressive attorney in a collaborative divorce is less effective. My collaborative colleague is a well-trained collaborative attorney, and well intentioned. However, she still does a lot of divorce litigation, and that affects her collaborative practice.

im-right-1458410_640In divorce litigation (court based), being aggressive can be very effective because of where the power lies. In litigation the power rests primarily with the Judge, secondarily with the attorneys, to the extent they can persuade the Judge or intimidate or outfox the other side. The clients have virtually no power. Indeed, during a trial the clients can only speak during the limited period of time that it is their turn to testify as a witness.

In a collaborative case, there is no Judge, and the power rests primarily with the spouses, and secondarily with the collaborative attorneys and other professionals.

So here is what happened in my recent collaborative settlement conference. The […]

Westchester Collaborative Divorce Lawyer Goes to Trial

After 38 years as a divorce attorney in Westchester County, New York, I can state with absolute certainty that divorce court is toxic, sometimes comparable to descending into Dante’s “Inferno.” It was my hellish experience in divorce trials that drove me to explore collaborative divorce and mediation, and, ultimately, to become a settlement specialist. Most divorce cases can and should be done collaboratively or through mediation. Once in a while, though, a trial is necessary.

trainSuch was the case when a man crossed my threshold several months ago, having represented himself in preliminary divorce court proceedings. The trial “train had already left the station,” so to speak, and this man was going to have to face his wife’s attorney in court, with himself as his only legal representation. Three weeks before the trial, he realized that it would be wise for him to get his own attorney, and so he asked me to take on his case.

This man’s case looked like it would be relatively simple because it involved a short, five-year, childless marriage. So I agreed to take on the case.

I soon learned that both the husband and wife had a […]

How to Get an Affordable Divorce in Westchester: Part 3

If there is great conflict and/or power imbalances between you and your spouse, keeping your divorce affordable will be a challenge. The most affordable divorce processes, mediation and “kitchen table” divorces are not for you. It also may mean that collaborative divorce is not an option. But it still may be possible to keep costs within reason.

You  may be tempted to look for the meanest, most aggressive courtroom lawyer (litigator) you can find. But, if affordability is an issue, do you want someone who will add exponentially to the “billable hours” you will have to pay for?

It may be counter-intuitive, but consider hiring an experienced litigator who also has considerable training and experience in mediation and collaborative divorce. Why?  Because such a litigator has more skills in his/her negotiating toolbox, than the old school divorce “bomber.”  Old school divorce negotiation tactics usually exacerbate conflict, leading to months of court-generated paper work. Moreover, in divorce court in Westchester County, NY, the judges now require trial notebooks that take many billable hours for attorneys to prepare.

Your hybrid litigator-collaborative attorney will fight for you, if necessary.  However, being skilled in mediation and collaborative negotiation, he/she can find ways to sidestep the protracted […]

Divorcing a Narcissist

In my 35-year career as a divorce attorney, I have encountered some individuals – clients or the partner on the other side in a divorce – who were extraordinarily difficult. People who seemed to be in the divorce for the fight. People for whom “winning” was the sole consideration – at the cost of depleting their assets (“I’d rather go broke paying you [the attorney] than let my spouse get a penny.”) or – even worse – using their children as pawns in the conflict with their spouse.

Don’t get me wrong. The stress of a divorce often brings out the worst in people. The pain of rejection can cause even the most rational and/or kind person to be overcome with anger. But fortunately, most people seem to be able to step back from their anger long enough to look at financial issues rationally and to behave in the best interest of their children. Not so, the difficult people I described in the prior paragraph.

When I began training in collaborative divorce and mediation some 15 years ago, I attended a seminar on dealing with “difficult people” in divorce. I learned that many of the difficult people I described above are […]

THINK MEDIATION OR COLLABORATIVE DIVORCE FIRST WHEN CONSIDERING A DIVORCE

There is some confusion about divorce process choices I want to clear up. Divorce mediation and collaborative divorce are the best options to consider for most divorcing couples.

Mediation works great for couples who have an approximately equal balance of power in their relationship, and is the most economical of the divorce process choices.  In traditional divorce mediation, each spouse represents himself/herself in their negotiations that are facilitated by one neutral divorce mediator.

Collaborative divorce is a form of mediation.  It is geared to more difficult cases where there is an unequal balance of power in the couple’s relationship.  Each spouse has his/her own collaboratively trained attorney, who can empower, advise and advocate for his/her client to correct any such power imbalances, and negotiate on an even playing field.

In both mediation and collaborative divorce, it is important that each spouse asserts his/her needs and interests to the maximum extent, in a respectful manner, and discloses relevant financial information in good faith.

Many divorce lawyers do not recommend mediation or collaborative divorce BECAUSE THEY CANNOT MAKE NEARLY AS MUCH MONEY MEDIATING OR COLLABORATING A DIVORCE.  The fees for a divorce mediation or a collaborative divorce are typically a small fraction of what they […]

Collaborative Divorce Can Avert “Dirty Tricks”

Stu Webb, the attorney who invented Collaborative Divorce in 1990, made a critical point in an interview* he gave a few years ago: When the other side in a divorce litigation pulled “a dirty trick,” he often wondered whether the dirty trick came from the other lawyer or the other lawyer’s client.
A divorce case can turn on a dirty trick. Unfortunately, issues as serious as long-term financial plans or even the custody of children can be determined by a dirty trick.
The most malevolent dirty trick I ever experienced was in a child custody case many years ago. The case was going very well until the other spouse switched attorneys and hired a very high-priced divorce litigator. Shortly after the new attorney got involved, an accusation was made that the wife’s boyfriend sexually abused the parties’ 7-year old daughter. The husband ended up winning custody of the child. The wife later learned from her daughter that Daddy promised to buy her a pet dog if she said that Mommy’s boyfriend touched her private parts. Assuming this pernicious bribe happened, was it the father’s idea or his lawyer’s idea?
Dirty tricks in a litigated divorce can take the form of hiding financial […]

Collaborative Divorce vs Aggressive Divorce

As a divorce attorney – in social situations I am often asked – if I were in need of my own divorce, would I want a collaborative divorce or would I pursue an aggressive divorce?
When I probe the questioner I usually find that the question is based on a mistaken assumption. The assumption is that an aggressive approach will enable you to get and keep “more” of what you want out of the divorce. The truth is – unless your goal is to make your lawyer rich – the aggressive approach is probably not in your best interest.
An aggressive approach in divorce means “litigation.” Litigation necessitates mountains of paperwork requiring hours and hours of “billable hours” of your attorney’s time. Moreover, in litigation, our adversarial legal system tends to aggravate the situation, increasing the amount of time demanded of your lawyer.
The court system looks for the “truth” through allegations, counter-allegations and evidence. This approach becomes a self-fulfilling prophecy. Conflict is exacerbated, adding more and more hours to your lawyer’s bill – not to mention more stress for you!
If you and your spouse are like most divorcing couples, you don’t need an aggressive attorney to […]