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Case Study Demonstrating Collaborative Divorce Benefits

How the case Started?

- At initial consultation, Mr. C. (the husband) wanted a Collaborative Divorce. Why?
- He liked the benefits:
- Economic divorce – save money on legal fees and preserve the marital estate
- Control – not to naively put your destiny in the hands of a Judge (a stranger).
- We both communicated with Mrs. C. (the Wife) regarding Collaborative Law and its benefits and gave her a brochure and website so she could find a good Collaborative attorney for herself.

- all to no avail
- she did nothing for 6 months
- so, Mr. C. hired me to start a divorce litigation

Retainer

- Ability to have an economic divorce starts being eroded
- Retainers typically higher for a divorce litigation than a Collaborative Divorce.
- divorce litigation is much more time consuming.
- So, you pay substantially more up front for litigation that you do for Collaborative

Loss of Control over events in your life from the Outset

- Wife responded to the Summons and Complaint with a Pendente Lite Motion

- She immediately asked for a Judge to grant her temporary relief (Child Support and Maintenance and counsel fees while case is pending)

- Husband (Mr. C.) and his attorney (me) must respond to that on paper (reminds […]

Mediation, Collaborative Divorce and the Children’s Best Interests: a Legal, Psychoanalytic Perspective

When you think that your happy marriage is coming to an end, but deep down you know that your children will be severely affected by it, you might want to consider Collaborative Divorce or Mediation first.

To avoid any misconceptions and /or confusion: collaborative divorce and mediation are not the same. However, both are protective of children and prevent a potentially destructive and traumatized experience. Other authors have called a collaborative divorce “The Good Divorce”.

Mediation is for couples who can each compete on a relatively even playing field, where there is a minimal, if any, power imbalance in their relationship. It is simpler and usually more affordable than collaborative, but it is also a child-friendly option like collaborative.

Mediation does not require each party to hire his/her own divorce lawyer but, instead, one neutral mediator facilitates a negotiation between the parties to reach a meeting of the minds for settlement. If the mediator is also an attorney, then the mediator can also draft the Separation Agreement.

Collaborative divorce is for couples who may have a significant power imbalance in their relationship, and who still want to avoid a bitter contested divorce fought in Court. Like mediation, a collaborative divorce considers the needs […]

How to Save Money in your Divorce

Settle Maintenance (Alimony) before December 31 of this year:
If you have exposure to paying maintenance, which is the term used in New York for alimony, you can save a lot of money by immediately retaining an attorney to make a legally binding agreement settling the maintenance issue. Such an agreement could be a Separation Agreement.
Time is of the essence, however, because if maintenance is resolved by December 31, 2018, the new Tax reform Act provides that the payor will get a tax deduction for it. If not, the payor will not be able to deduct it.
You will need an Attorney that has the time available to help you make such a settlement by December 31, 2018.
Other ways to save money in a Divorce:
1. Organize your documents.
2. Do not call your lawyer to ask questions every day, unless it is an emergency. Instead, make a list of questions ahead of time, and call your lawyer once per week to ask your questions.
3. Consider retaining a divorce lawyer with a reasonable hourly rate.
4. Consider an out of court settlement first. Litigate only when necessary. Mediation or Collaborative Law are great ways to make an out of court divorce settlement.
5. Be willing […]

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 […]