Archive for year: 2017

It always surprises me how many people hire me as their divorce mediator, or collaborative divorce lawyer, simply because of what they learn from my website. Don’t get me wrong, I have a nice website. It seems to convey to people how much I enjoy my work and care about my clients.
Still, I am surprised that people do not do the same degree of research that they do when choosing a physician, dentist, or even a physical therapist. Most people choosing a health care provider will ask for recommendations from many people, or at least one person they trust, before making a decision.
I understand that many people want to choose a divorce mediator or collaborative lawyer before they have told friends and family that they plan to divorce. Once the process begins, however, it is not likely to be a secret for long. So why not tell a close friend or family member and get a recommendation?
In any case, many people do their own research. Here are some questions that should be asked of a mediator or collaborative divorce attorney:

1. Am I a good candidate for divorce mediation? For collaborative divorce?

An attorney with experience in non-adversarial divorce will help you understand whether mediation or collaborative divorce make sense for you. Sometimes, despite your best intentions, your divorce is not likely to be settled using mediation or collaborative divorce. See Qualities Needed for Success. Find out before you begin. Ask the question and listen to the attorney’s answer, carefully checking for any bias on the part of the attorney.

2. If you are considering collaborative divorce, does the attorney agree to sign a Collaborative Divorce Agreement?

The essence of collaborative divorce is that both lawyers agree not to file any court motions or otherwise use adversarial divorce techniques. If either of the attorneys, or the divorcing couple, become adversarial, the process terminates and the husband and wife find new divorce lawyers to represent them. This gives the attorneys a strong incentive to settle the divorce collaboratively.
Some attorneys who call themselves “collaborative” refuse to sign the Collaborative Divorce Agreement. This attorney may be cooperative, but he or she is not truly collaborative. Keep looking for one who is.

3. Does the divorce mediator or collaborative lawyer have training in the area? Do they have experience?

Unfortunately, there are divorce lawyers practicing mediation and/or collaborative divorce who have never been trained in those areas of practice. Ask the question and listen closely to the answer. Many years of litigation experience is not a substitute for training or experience in the areas of divorce mediation or collaborative divorce.

Trust your Instincts

In addition to asking these practical questions, listen to your gut. Does this person seem caring? Why does the divorce mediator or collaborative divorce attorney do this kind of work? Will he or she take the time to listen to you? You will be spending some time with your divorce mediator or collaborative divorce attorney and discussing intimate matters. Make sure are comfortable with the lawyer as a person.

With approximately fifty percent of marriages ending in divorce, the termination of a marriage is now a common life transition. Although it may be common, divorce can be difficult on both parents and children. If asked, most couples would say that they would prefer to minimize the harmful effects of divorce on their children. Ideally, the parents hope to be able to enjoy their children’s birthday parties, graduations, weddings and other family events together without bitterness or resentment marring those occasions. Is there a greater gift to give your children than enabling them to experience these events without having to worry about how their parents will interact? By choosing the right divorce method, a couple can go a long way to reaching that goal.

Couples with no children, few assets and an amicable relationship may be able to complete their own divorce. This is called a pro se divorce. Even in fairly simple cases, the individuals must have the time to educate themselves about the divorce process. It will inevitably take a significant amount of time to understand and complete the required forms and comply with Court procedures and timeframes. The couple has to be comfortable assuming responsibility for a process that has significant legal implications.

For couples not comfortable with a pro se divorce who would like to keep the divorce process amicable and minimize conflict, mediation is an excellent alternative. Mediators are attorneys, mental health professionals or financial professionals who have undertaken special training in mediation skills. The mediator acts as a neutral party, guiding the couple through their divorce while encouraging them to advocate on their own behalf and reach solutions that will best serve their family. In some cases, the mediators work in a two person team. A mental health/attorney team is especially suited to fostering cooperation and moving the process along. In mediation, the couple is encouraged to think creatively to find ways to divide assets, create budgets and care for the children after the divorce. Because the couple is making their own decisions for their family, instead of having solutions dictated by the Court, mediated divorce agreements are more likely to be complied with after the divorce. Since mediation is a cooperative process, it is typically the least costly of the assisted divorce methods. Mediation is not only for those people who get along well. In most cases, hurt and resentment are part and parcel of the divorce process and mediators are trained to deal with these feelings and turn conflict into productive solutions.

Some people, while hoping to accomplish an amicable divorce, are unwilling or unable to advocate for themselves. For these people, Collaborative Divorce might fit the bill. Collaborative Divorce is a method that has been spreading across the nation. Collaborative Divorce addresses the emotional, financial and legal considerations of a divorce using a team model. The husband and the wife are each represented by attorneys who have agreed to work in a cooperative, non-adversarial process. The attorneys agree from the start that neither one will turn the matter into a litigated case. The attorneys assure that a party’ rights are preserved and act as his or her ally throughout the divorce negotiations. What is unique about Collaborative Divorce is that the husband and wife may be aided by either one or two divorce coaches, one neutral financial specialist, and when there are children, a child specialist. The divorce coaches are mental health professional, who guide the husband or wife through their divorce and help them acquire the skills needed to negotiate and overcome the conflicts that caused difficulties in the marriage. The coaches will also help the couple deal productively with emotional issues that are part of the process. The neutral financial specialist assists the couple in evaluating financial options and reaching a settlement that is best for the family overall. The child specialist provides information about the developmental needs of the children during and after the divorce and gives the children a voice in this process. Collaborative divorce is a good option for couples who are uncomfortable divorcing without the support of their own attorney and mental health coach. One might assume that the team model of Collaborative Divorce would increase costs.  The fact is that use of the team model can reduce costs by delegating aspects of the divorce process to the professionals most skilled in those areas.

Both mediation and collaborative divorce are cooperative processes that help the clients work together. Most people will be successful using one of the two divorce processes. However, in cases of domestic violence, hidden assets, significant mental health or addiction issues, the couple will most likely face a traditional adversarial divorce. In these cases, the husband and the wife each hires his or her own attorney who will generally attempt to reach a divorce settlement, but, if necessary, will take the case to trial. This process entails more Court involvement as issues are decided at hearings and information is gathered through the sworn testimony of the couple and their experts. This is typically the most costly and least private of the choices due to the frequent use of the Court and the time spent by the attorneys in preparing for and attending hearings and building a foundation for trial. From this group come the infamous divorces cases that cost exorbitant amounts of money and take years to complete and cause normally sane people to act in uncharacteristically insane ways. Unfortunately, the children must witness the insanity and see their college funds used to fuel the conflict.

Vicki Volper is an attorney licensed to practice in Connecticut and New York.  Attorney Volper  works both as a mediator and as a Collaborative Divorce attorney from her office in Westport, Connecticut.

Many couples entering divorce mediation or collaborative divorce are confused about what the term “no-fault divorce” means. All it really means is that if a state offers no-fault divorce, a couple can get divorced without a showing that one party violated the marriage contract. They can file an action to dissolve their marriage without proving the other person is at fault for the divorce.

Connecticut is one of the many states offering no fault divorce. A party wishing to divorce can be divorced simply because the parties agree that the marriage has “broken down irretrievably”. It is still possible, in a no-fault state, to file for divorce on the basis of fault. Grounds include adultery, desertion, and intolerable cruelty, to name a few.

Even though Connecticut is a no-fault divorce state, fault is not irrelevant in Connecticut. When awarding alimony and in dividing assets, a judge theoretically considers fault as one factor in making a determination. As a practical matter, most Connecticut judges do not consider fault a significant factor in making such decisions. Judges in Connecticut are often hesitant to decide the issue of who is at fault at all.

In any case, divorce mediation and collaborative divorce can look at fault differently. Sometimes couples divorcing using divorce mediation or collaborative divorce will take fault into account in their negotiations because it is important to them. I have been impressed by an occasional person who, having initiated the ending of a long-term marriage, feels a responsibility to his or her spouse. There is a feeling of respect for the seriousness of the marriage contract, and a desire to “do the right thing”.

Divorce mediation and collaborative divorce, because they are cooperative and private processes, leave room for the consideration of fault without repercussions. A person can express remorse in the privacy of such a process, and maybe even offer compensation of some sort, without fear of unintended consequences.
Sometimes even a simple apology can go a long way.