Divorce and Co-Parenting in a Pandemic

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As if divorcing and co-parenting weren’t hard enough. The Covid-19 pandemic has added a level of complexity never seen before. A recent New York Times article illustrates how divorced parents are struggling to make co-parenting decisions at this time. Some parents have legitimate concerns that their custody arrangement interferes with their ability to protect their children from the virus. Other parents are weaponizing the virus to upset existing parenting plans.

Due to the requirements of social distancing, many courts are closed or have limited hours and personnel. Consequently, courts are only available to hear emergency matters. Many situations may seem urgent to divorced mothers and fathers who are co-parenting. These issues may not qualify as emergencies in the eyes of the court.

Fortunately, there are options. While mediation and collaborative divorce have always been better options for resolving family matters than relying upon the court system, they now may be your only options. Mediation and collaborative divorce do not rely upon the court system, so they are readily available during the Covid-19 pandemic.  Divorce negotiations can proceed and post-divorce issues can be resolved.

I am currently working with couples in mediation and collaborative divorce using video conferencing. It works.

Embracing Transition

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* EMBRACING TRANSITION *

Nordstrom at the SONO Collection in Norwalk, CT will be the amazing location for the “Embracing Transitions” seminar through the What Women Want Fairfield County Chapter networking group.

Life is full of transitions.
Chances are, you’re going through one right now.
Learn to cultivate the power of positive thinking with tips & strategies
to get you through these times with grace and humor.
Mark your calendars for Thursday, May 14th from 6-8pm.
Stay tuned for ticket and registration info.

The panel discussion with Vicki Volper, Christine Finch Oleynick, Hilary Berger, Kitt Shapiro
Linda Cleveland and Lisa Williams and will be MC’d by the
CEO and Founder of What Women Want Networking, Judy Goss

Save the date!
May 14th from 6:00-8:00pm

Beware of the Greek Chorus

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It is normal to want support through your divorce. The divorce process can make you feel very much alone. You have been part of a couple and soon you will be single. It is understandable that you seek out friends and family members for support. That is healthy and necessary.

Divorce Advice is Not Support

The problems arise when you discuss the particulars of your divorce with friends and family. Well-meaning friends and family can sabotage your divorce. That is because they may encourage you to seek settlement terms that are not truly in your best interest. Ask your friends and family to listen and to be present. Welcome their support. Skip their advice about your divorce settlement. Your divorce mediator or collaborative divorce attorney should be your primary source of information. You hired them for that purpose.

Do Not Compare your Divorce with Others

Each set of divorce facts is different. The settlement that your friend received may not be appropriate for you. While your circumstances may be superficially similar, below the surface, there may be vast differences that merit a different outcome.

Moreover, in divorce mediation and collaborative divorce, you are not looking for cookie cutter solutions. Both divorce mediation and collaborative divorce focus on crafting an agreement that maximizes the path forward for each of you.

Stick to your Resolve to be Non-Adversarial

Your family and friends are concerned about you. They want the best for you. They may try to convince you that being non-adversarial will backfire. They may truly believe that only an aggressive attorney can get you what you need and deserve. You have done the research and you know that being adversarial will cause you unnecessary stress. It will destroy any chance you may have of a continuing relationship with your spouse. Stick to your guns and stay in mediation or collaborative divorce.

 

 

 

divorce mediation

The Role of the Court in Divorce Mediation in Connecticut

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Couples using divorce mediation in Connecticut are sometimes surprised to learn that they cannot entirely avoid the involvement of the court system. A divorce can be initiated in Connecticut only by the filing of a Summons and Complaint with the Superior Court.

While that may sound imposing, in mediation this process is defused by the way it is handled. The mediator prepares the Court documents in partnership with the divorcing couple. Sometimes one spouse prefers to be the plaintiff (the initiator of the divorce action), or the defendant (the party against whom the action is brought), because of the circumstances of their divorce. A spouse who did not ask for a divorce often does not want to be the plaintiff in the court filings. Other times neither spouse has a preference and a coin toss will decide who will initiate the divorce action.

Once the Summons and Complaint are prepared, they must be “served” upon the defendant by a State marshal before the papers can be filed. In divorce mediation, the marshal often comes to a mediation session to perform this process, which is simply a matter of handing a copy of the Summons and Complaint to the defendant. While being served with papers can sound intimidating, having the marshal appear at a mediation session in plain clothes is usually a low-key event.

Once a couple has reached agreement on all issues through divorce mediation, the mediator will draft a document reflecting their agreement. In Connecticut divorces this document is known as a Separation Agreement. This document is ultimately reviewed by a judge at what is called an Uncontested Dissolution Hearing. The hearing is a very brief meeting in which the judge will read through the Separation Agreement and ask the couple questions about it. The goal is to be sure that each party understands the agreement into which they have entered.

While the divorcing spouses appear in Court “pro se”, meaning they are not represented by counsel, the divorce mediator will make sure that they are well-prepared for their hearing. They will be especially versed on the terms of their Separation Agreement because they were active participants in its creation. In the vast majority of cases, the terms of the mediated Separation Agreement will be acceptable to the judge. Judges generally appreciate that a couple has chosen to mediate their divorce, and will respect their agreement as written.

Except for the need to serve and file the Summons and Complaint, and to appear at the Uncontested Dissolution Hearing, the Court is generally not involved in divorce mediation. The divorce mediation process takes place in the mediator’s office and the couple is able to make decisions based upon their own values and sense of fairness. It the role of the divorce mediator to help the couple get in touch with their values, and incorporate them into their divorce agreement.

How do I Choose between Divorce Mediation and Collaborative Divorce?

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People often ask me how to choose between Divorce Mediation and Collaborative Divorce. I congratulate them on having decided to divorce amicably. Whichever road you choose, by not litigating your divorce, you are more likely to keep your sanity, preserve your assets, and protect your children.

Both Divorce Mediation and Collaborative Divorce Save Time, Money, and Aggravation

If you use either Divorce Mediation or Collaborative Divorce you will save time and money. By not using the courts to resolve your differences, you will avoid the expense of court appearances. More importantly, both methods allow you to negotiate the terms of your divorce reasonably, thoughtfully, and confidentially.  Both Divorce Mediation and Collaborative Divorce spare you and your family the unnecessary turmoil that a litigated divorce will create.

What is Divorce Mediation?

In Divorce Mediation, you will work with a neutral mediator to resolve all of your divorce issues. The mediator will help you gather the information you need to get divorced. You and your spouse will review all of the information together with your mediator and make all of the necessary decisions for your divorce. This is done privately in the mediator’s office and your discussions are confidential. Throughout the process, the mediator will make sure that you and your spouse are each heard, and that your needs and interests are explored and understood.

A mediator who is an attorney will also be able to prepare and file the paperwork required by the court to initiate and resolve your divorce. In addition, an attorney mediator will draft the document that incorporates all of your agreements reached in the divorce mediation sessions.

What is Collaborative Divorce?

In Collaborative Divorce, you and your spouse are each represented by a Collaborative Divorce attorney. You will each meet individually with your Collaborative Divorce attorney, and also have 4 way meetings, to make all the necessary decisions. Collaborative Divorce attorneys are trained in Collaborative Divorce and approach each case in a cooperative manner with the goal of settlement. Your Collaborative Divorce attorney will represent your interests, while also considering the interests of your spouse. As in mediation, the negotiations are respectful and take a holistic approach to the needs of the family.

Most importantly, in Collaborative Divorce, you, your spouse, and both attorneys all sign a Collaborative Divorce agreement. The Collaborative Divorce agreement states that, as in mediation, each spouse will voluntarily provide all required financial information and negotiate in good faith. The agreement also provides that neither lawyer will use any adversarial techniques or file any motions with the court. If a spouse or lawyer violates the Collaborative Divorce agreement, the lawyers are required to withdraw from the case and the parties must start the divorce process over with new lawyers. This creates a strong incentive for everyone to settle the case amicably.

Additional Collaborative Divorce Team Members

The Collaborative Divorce lawyers and the spouses will discuss the benefit of incorporating divorce financial planners and mental health professionals into the Collaborative Divorce process. These additional team members can often save time and money by expediting the process. One divorce financial planner can perform the financial analysis that two lawyers would otherwise do. A mental health professional acting as a divorce coach can enhance communication and help you and your spouse manage emotions that might interfere with rational decision making.

So How do you Choose between Divorce Mediation and Collaborative Divorce?

The decision is a very individual one based on your personality, the history of your relationship, and the facts of your case. Here are some factors to consider in choosing between Divorce Mediation and Collaborative Divorce:

  • Mediation is the least expensive choice. One attorney acting as a mediator is going to be less expensive than two attorneys.
  • Mediation is the quickest and most flexible option. The need to coordinate the schedules of two attorneys can often slow the process down.
  • Mediation gives the parties the greatest degree of control over the process. It focuses more on the needs and desires of the parties and less on what the outcome would be in court.
  • Collaborative Divorce provides a greater degree of safety if there is a perceived imbalance of power between the parties. For a person who is intimidated by his or her spouse, mediation might not be the best option.
  • Collaborative Divorce offers the support of mental health professionals when parties have emotional or communication challenges.
  • Collaborative Divorce might be a better option when one party has all of the information about the family finances or is more financially savvy. While a good mediator can help level the playing field, some parties will only be comfortable with a good collaborative attorney as a partner in the process.

The choice between Divorce Mediation and Collaborative Divorce is a very personal one. Follow your instincts. If you select the right professionals, either process will serve you well.

How do I choose a Divorce Mediation Lawyer or Collaborative Divorce Lawyer?

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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.

Connecticut Divorce is Moving in the Right Direction

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I am happy to report that divorce in the State of Connecticut is moving in the right direction. There is a growing acceptance of the benefits of the non-adversarial divorce methods of mediation and collaborative divorce. Change is slow, but all positive change is welcome.

No Need to Serve Divorce Papers

There is no longer a requirement that a marshal “serve” the Summons and Complaint upon the defendant in a divorce action. We do not yet have a joint petition for divorce permitting a couple to jointly file for divorce. Instead, even in mediation, one party, the plaintiff, must sue his or her spouse, the defendant, for a divorce. One day we will hopefully be able to avoid framing divorce in the context of a lawsuit. In the meantime, we have eliminated the requirement that a marshal serve the papers on the defendant.

Waiver of the 90 day “Cooling Off” Period for Divorce

When a divorce action is begun in Connecticut, a couple must wait 90 days before they can have their divorce hearing and finalize their divorce. Many couples that I work with in divorce mediation have reached agreement on all issues before the expiration of 90 days. Now, a couple may have an expedited hearing by waiving the so-called “cooling off” period. This allows couples using divorce mediation or collaborative divorce to better control the timing of the process to suit their needs and the needs of their family. While this change in the divorce process is less significant than the waiver of service of process, it acknowledges the way that the divorce process is changing.

CT Divorce

Connecticut Divorce Options

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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.

CT divorce Procedure

Divorce Procedure in Connecticut

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There is no “common-law” marriage in Connecticut and there is no “common-law” divorce. Regardless of whether a couple chooses an adversarial or non-adversarial divorce method, a couple can only divorce through the court system by following the steps set forth by statute.

Service of Process

To initiate a divorce, one party, either the husband or the wife, must complete a summons and complaint and have a State marshal serve them upon their spouse. The marshal’s fee is generally between $55-$60. The one initiating the divorce is the plaintiff and the other is the defendant. It does not matter which party is the plaintiff and which is the defendant. The defendant may respond to the Complaint by filing an answer or cross-complaint, agreeing or disagreeing with the matters described in the complaint. Serving papers as described assures that the defendant has legal notice of the plaintiff’s divorce action. The attorney-mediator will help you prepare all of the required documents and contact the marshal. In addition, the mediator will arrange for the service of process to occur in the privacy of our office.

Filing Papers and Timing

After service of process, the plaintiff must then file the completed papers with the court along with the marshal’s proof that the papers were served upon the spouse, and a $350 filing fee. There are specific time periods to comply with regarding when the papers must be served and when they must be filed with the court. The attorney-mediator will help you determine how these time periods apply to you. The day that the summons and complaint are effectively filed with the court, and the action is officially initiated, is called the Return Date. Service of process must occur at least 12 days prior to the Return Date and the papers must be filed with the Court at least 6 days prior to the Return Date. The Return Date also begins the running of the mandatory 90-day waiting period before the divorce can be finalized. The day that the waiting period ends is the Case Management Date, upon which the parties must notify the Court of the status of their divorce. Generally, parties can file a Case Management Agreement with the Court on the Case Management Date, in lieu of appearing in Court. If, however, the parties continue to have unresolved issues regarding child custody and parenting, they must appear in Court on the Case Management Date.

Automatic Orders

Serving the Complaint upon the defendant triggers the application of certain rules called Automatic Orders that bind both parties. In general, the Automatic Orders set forth a list of restrictions that prevent the husband or wife from drastically altering their current financial situation. For example, absent the other party’s consent or a court order, neither party may sell the marital home or clean out joint bank accounts. Parties also may not upset the family situation by relocating children out of state or changing the locks on the marital home. A copy of the Automatic Orders is attached to the Complaint so that both parties are fully aware of what they are. The attorney-mediator will explain these rules so that you understand your rights and responsibilities.

Waiting Period

During the 90-day waiting period, the couple must decide the issues of their divorce, including asset and debt division, parenting obligations and responsibilities, child support and spousal support. These agreements must be memorialized in the form of a written separation agreement. In addition, the parties must perform certain other tasks prior to divorcing. Within 30 days of the Return Date, the husband and wife must each prepare and exchange, a detailed financial affidavit disclosing his or her financial situation. In addition, couples with minor children must attend a mandatory state-approved parenting education course. The mediator will help you gather the necessary data and forms.

Finalizing the Divorce

Once the waiting period has expired, if the husband and wife are in agreement about all of their divorce issues, they can bring their separation agreement, updated financial affidavits and certain other required ancillary documents to court for an uncontested dissolution hearing. A judge will review the separation agreement and ask questions to be sure the parties understand its terms. After the expiration of 21 days following the dissolution, the parties can obtain a certified copy of the divorce judgment for their personal files.
The above is a general discussion of the basics of the divorce process in Connecticut and how it applies to mediation. For more specific information about divorce in Connecticut, you may refer to the website of the Connecticut Judicial Branch.

What is No-Fault Divorce?

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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.