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Collaborative Divorce: The Advantages

A highly regarded Collaborative Divorce lawyer in California, Pauline Tesler, has written the authoritative book on Collaborative Divorce: Collaborative Law, Achieving Effective Resolution in Divorce Without Litigation. The third edition of that book was published in 2016, and it includes a “Collaborative Divorce Handbook.” This handbook is a must read for anyone considering a collaborative divorce.  The information is relevant to a New York divorce, although Ms. Tesler practices in California.

The following is the first blog post in a series about the Collaborative Divorce Handbook.

For those considering either a collaborative divorce or a traditional adversarial divorce, Ms. Tesler points out eight advantages of Collaborative Law.
1. In Collaborative Law, all participate in an open, honest exchange of information. There is no “hide the ball.”
2. In Collaborative Law, neither party takes advantage of the miscalculations or mistakes of others, but instead identifies and corrects them.
3. In Collaborative Law, both parties insulate their children from the conflicts. They avoid the professional custody evaluation process, instead making use of specially trained coaches and a child-development specialist to arrive at solutions that both parties can accept, solutions that reflect the children’s needs and concerns.
4. Both parties in Collaborative Law use joint accountants, appraisers and other […]

Westchester Divorce Advice for High Net-Worth Individuals

High net-worth individuals need to be savvy when looking for a Westchester divorce lawyer. Indeed, all consumers need to be well informed if they are seeking a divorce attorney. That said, high net-worth individuals are especially vulnerable to potential exploitation by attorneys who are eager to generate many “billable hours.”

Here are some things to consider when researching and interviewing divorce attorneys.

• For most high net worth individuals, collaborative divorce is probably your best option. It is much less expensive than a traditional litigated divorce (divorce through the court system). And since most litigated divorces are settled “on the courthouse steps” so to speak, why not start out with the specific goal of getting a good settlement?

• If you are interviewing an attorney who has a reputation as a litigator, what do they say about your options? Do they mention collaborative and mediation as possible alternatives? If not, buyer beware! Litigation is like surgery: risky and expensive, and should only be done when necessary.

• If you are considering collaborative as a possibility, does the attorney have extensive training and experience in collaborative? There are litigators who also have training and experience in collaborative, and they do a fine job at […]

The Art of Balance in Collaborative Divorce

The flexibility and fluidity of the collaborative divorce process corrects power imbalances in the divorcing couple’s relationship and negotiations. It does this by –

• Providing each spouse with the advice and support of a divorce attorney whose sole agenda item is to make a good settlement in which the needs and interests of his/her client, and, ideally, those of the other spouse, are fulfilled.

• There is a fluid and flexible spectrum of advocacy in collaborative law. During negotiations the well-trained and experienced collaborative lawyer is fully prepared and knows in advance what is most important to his client. Moreover, the attorney has done his/her best to empower the client so those needs and concerns are articulated during the settlement conference.

• If the client, for any reason, does not fully articulate those needs and interests during the four-way meetings (both spouses and their attorneys present), then it is perfectly okay for the collaborative lawyer to be a “partisan advocate” and speak more like a traditional divorce lawyer by serving as the client’s “mouthpiece.”

• If the client, on the other hand, is successful in expressing his/her needs and interests, the collaborative attorney will be a “facilitative advocate,” encouraging the client to do most of the […]

Article on Collaborative Law Featured in the Huffington Post

Collaborative divorce seems to be entering the mainstream. A recent blog post in the Huffington Post provides an excellent overview of collaborative law. When reading it, however, keep in mind that every state in the U.S. can be like a different country when it comes to divorce law AND attorney qualifications.

New York has no lawyer specialty certifications. A law license in New York authorizes an attorney with no experience or knowledge beyond what it takes to pass the bar exam to practice any specialty he or she chooses. When choosing collaborative divorce lawyer in New York State, one should ask a prospective attorney how many years of experience he/she has practicing collaborative law, how much rigorous training he/she has had in collaborative skills, to what group(s) of collaborative divorce professionals does he/she belong, and what are the training requirements for membership in said group(s). With that caveat in mind, if you are interested in learning more about the collaborative process, I encourage you to read this piece from the Huffington Post:
http://www.huffingtonpost.com/brad-reid/a-brief-overview-of-colla_b_10701612.html

© Arnold D. Cribari 2016

Why do a Prenuptial Agreement: Part 2

Prenuptial agreements typically address issues that would, otherwise, be decided by a judge in divorce court. Agreements can settle one or more of the following subjects:

  • how assets (and debts) will be distributed during the marriage, and/or in the event of a death or a divorce
  • each spouse’s entitlement to maintenance (i.e. alimony), including the amount and period of time of an alimony award
  • each spouse’s right to property (whether owned individually or as a couple)
  • each spouse’s right to buy, lease, sell, transfer or otherwise control property
  • each spouse’s rights and responsibility in a family business
  • each spouse’s right to death benefits from the other’s life insurance policy
  • the state law which governs the agreement, or
  • any other issue the couple agrees upon.

Couples have a good deal of freedom in creating prenuptial agreements. There are, however, some issues that a “pre-nup” cannot cover. For example, an agreement cannot require a spouse to commit a crime or prevent a spouse from pressing criminal charges, such as a domestic violence charge.

Prenuptial agreements in New York can address some issues regarding the education, support and care of children. That said, a judge will make the final decision on child custody and support based on the best interests of the […]

Why do a Prenuptial Agreement? Part 1

Many engaged couples use prenuptial agreements. Rather than a sure path to divorce, a prenuptial agreement can help a couple communicate about finances and child-rearing thereby preventing some arguments during the marriage.

A prenuptial agreement is a contract between future spouses that settles issues of property and support in the event of death or divorce. In New York, a prenuptial agreement is made before the marriage and will take effect on the date of the marriage.

“Prenups” must be in writing and signed by both future spouses and duly acknowledged before a notary public. (An oral prenup or an unsigned agreement won’t be upheld in court.)

Who Should Get a Prenuptial Agreement?
The rich and famous aren’t the only ones who need prenups. A single parent might want a prenup to protect her child’s inheritance. In some circumstances, a spouse may want to keep a family home or a business separate. For example, I did a prenup for an individual whose parent would transfer the family business to him, only if he entered a prenuptial agreement that protected the business in the event of a divorce.

Without a prenup, a couple’s property will be divided in accordance with state law upon the death […]

Affordable Divorce: Make a Prenuptial Agreement

Do you want to avoid paying a divorce lawyer in the future tens – maybe hundreds – of thousands of dollars? Consider making a prenuptial (before the marriage) or post-nuptial (after the marriage) agreement. The legal fees for such an agreement are a very small fraction of the legal fees that would be generated by a case in divorce court.

No one should enter a marriage without making a whole-hearted commitment. Nevertheless, the reality is that almost half of marriages end in divorce. So, say “I do” with a sincere, heartfelt commitment, but – at the same time – be realistic and prepare for the possibility of a divorce.

An iron clad prenuptial agreement can resolve all division of property issues as well as alimony/maintenance issues that would arise in the event of a divorce. The only unresolved issues could be child support and other issues related to children born after the marriage.

Moreover, the process of talking through the “prenup” can give you and your partner an understanding of each others’ values and needs. Similarly, if financial circumstances change or financial concerns arise during the marriage, a post-nuptial agreement can be a valuable process for better understanding […]

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 […]

How to Get an Affordable Divorce in Westchester: Part 2

As discussed in our prior blog post, the most affordable ways to divorce in Westchester County, NY, are the “kitchen table” divorce and mediation. Nevertheless, even if there are many points of disagreement and/or a power imbalance between you and your spouse, your divorce doesn’t have to break the bank. Collaborative divorce is another affordable option.

A collaborative divorce can be a very good choice for couples in which there are some power imbalances in their relationship. Maybe one spouse has a stronger will than the other, is more articulate than the other, and/or has more money and information than the other spouse. Collaborative divorce also tends to be a better choice than mediation for complex divorce cases involving millions of dollars of assets and seven figure incomes.

When considering what divorce process to choose, you might want to compare the divorce court to the operating room in medicine. Such places are risky and expensive. Unlike the medical operating room, the divorce court is a place where you don’t have any insurance to pay for it. Think of collaborative divorce as being comparable to medicine or physical therapy that might solve the problem without going […]

How to Get an Affordable Divorce in Westchester: Part 1

Getting an affordable divorce in Westchester County, NY, is entirely possible.

The first thing to do is to ask yourself these questions before getting started: Is this a simple divorce, with no complicated financial issues and no children? If not, do my spouse and I agree on the major issues involving the children, support, and division of property? Is there an equal balance of power between my spouse and me, meaning can both of us assert our needs without fear? Are we both willing to exchange important financial information?

If you answered “Yes” to any of the above questions, you may be a candidate for a “kitchen table divorce,” or for mediation. A kitchen table divorce (also known as a “Starbucks divorce,”) means divorcing spouses reach an agreement between themselves on all major issues including child custody/visitation, support, and division of property. Then, one spouse hires an attorney to prepare a Settlement Agreement and uncontested divorce papers. While this is the most affordable option, it works only for couples who see eye to eye on the issues and are able to bring good will to the negotiating table.

The next most affordable option is mediation. In mediation the divorcing couple […]