PROCESSES IN DIVORCE
By Maribeth Blessing, Esquire When facing a divorce, two things are of the utmost importance - selection of your professional(s) and selection of your process. Both are dependent on the delineation of your ultimate goals, the understanding of your value system, and the scope of your finances. You need to access the parameters and limitations of these before moving forward. So first take a minute to decide what you want to accomplish and write it down. Explore your money situation. Can you finance a litigious and contested divorce and is that truly what you want? How will you finance even the most amicable divorce? What do you want from your divorce? Do you want to preserve a family relationship while dissolving the husband-wife relationship? Do you want to punish your spouse? Need revenge? Get every dollar you can, at any cost? Get out of a bad relationship as unscathed as possible? Preserve your own mental health? Once you decide what you want/need, then choose the professional(s) most apt to foster those goals, work within your parameters, and the process most beneficial to you. The first consideration is the careful and educated selection of your attorney and/or your alternative dispute resolution facilitator, if applicable. Regardless of the process selected, you are most likely going to need legal counsel. Do your homework. Ask your friends who they used. No amount of advertising can replace old fashioned word of mouth. Some very competent attorneys simply don’t advertise. Were your friends happy with their attorney’s representation? Check around and get an idea about the philosophies and biases of the attorney(s) you are contemplating interviewing. Ask questions during your consultation as to biases and philosophies. Check resources - the Internet, the yellow pages, local bar associations, lawyer groups and affiliates, and other attorneys. Never hesitate to request the curriculum vitae of the professionals you are engaging to guide you through this traumatic process. It is vital to ensure “a good and comfortable fit” with the professional(s) of choice. Be sure your selected attorney practices primarily family law. Be sure they keep abreast of the new developments in their area of law. Are they current in their required continuing legal education credits, or better yet, have they surpassed the requirement? Do they publish in their field? Are they active in their Bar and/or other Attorney groups and affiliates? Remember, cost is a consideration, but be careful - an experienced attorney may do the same work in half the amount of time as a lesser experienced attorney can so cost is relative. Sometimes you get what you pay for, so don’t think “cheap”. However, expensive does not necessarily mean better. Again, do your homework and choose wisely. Most attorneys set their rates in accordance with their experience and expertise. Above all, make sure you are comfortable in your selection and feel secure in your professional’s competency. Make sure you are going to be informed and part of the decision making process throughout. Your competent attorney can then guide you as to your selected process or processes of resolution, as well in the selection of the facilitators/professionals necessary to ensure your goals are met and your interests are protected. Now to the second consideration. Which process or combination of processes best suits your needs and goals? Below is a brief outline overview for your consideration. Make sure you discuss these thoroughly with your attorney as to which best suits your goals and needs.
LITIGATION I. Definition - A lawsuit. Legal action, including all proceedings therein. Contest in a court of law for the purpose of enforcing a right or seeking a remedy. A judicial contest; a judicial controversy; a suit at law. Black’s Law Dictionary, 5 th Edition II. Participants A. Parties to the divorce action - Husband and Wife; Third party with standing in Custody; Witnesses; Experts, if needed B. Counsel, if represented C. Hearing Officers, Masters and Judges when adjudicated D. Children; Pursuant to Pa. R.C.P. 1915.11(b) The court may interrogate a child, whether or not the subject of the action, in open court or in chambers. The interrogation shall be conducted in the presence of the attorneys and, if permitted by the court, the parties. The attorneys shall have the right to interrogate the child under the supervision of the court. The interrogation shall be part of the record.
III. Nature of a Suit A. Adversarial B. Lawyers advocate the interests of their client C. Judges make decisions based on the best interests of the children, and the equities of the matter D. Negative impact on the family; trickle down effect 1. Financial burden of litigation 2. Polarization of the parents or parties 3. Emotional trauma
E. Win/Lose outcome F. Litigation can be prolonged, fragmented, and expensive
NEGOTIATION I. Definition - A. The process of submission and consideration of offers until acceptable offer is made and accepted. Gainey v. Brotherhood of Ry and A.A. Clerks, Freight Handlers, Exp. & Station Emp., D.C. Pa. 275 F. Supp. 292, 300. Black’s Law Dictionary, 5 th Edition. B. The deliberation, discussion, or conference upon the terms of a proposed agreement; the act of settling or arranging the terms and conditions of a bargain, sale , or other business transaction. Black’s Law Dictionary, 5 th Edition.
II. Types of Negotiating Styles A. Positional Bargaining 1. Competitive Strategy a. Not concerned about the relationship with opponent b. Prone to psychologically attack the problem c. High initial demands d. Limited disclosure of information about the facts and/or the negotiator’s interests e. Few and small concessions f. Committed to position; frequently does not respond to concessions
2. Cooperative Strategy a. Concerned about relationship with opponent b. Attempts to establish atmosphere of trust c. Moderate opening demand. d. Limited disclosure of information about facts and negotiator’s interests until convinced opponent will reciprocate exchange of information e. Uses reasoned statements to support position f. Less committed to position and more ready to compromise
B. Interest Based Bargaining 1. Separates the people from the problem; attack the problem and not each other 2. Focus on interests, not positions. Not what you want but why you want. Look for complementary interests. 3. Brainstorm options that offer mutual gain. Win/win vs. Win/lose. 4. Insist on objective rather than subjective criteria to govern an outcome. E.g., instead of negotiation a price for a car, agree on the blue book value 5. Know your BATNA (best alternative to a negotiated agreement. The purpose is to produce a better result than that which could be obtained without negotiation. See Getting to Yes; Roger Fischer and William Ury
C. Participants to Negotiation in Divorce Matters 1. Parties to the action 2. Counsel, if any, for the parties 3. Third parties as agreed upon or Third Parties with standing 4. Experts, if necessary
ARBITRATION I. Definition- The reference of a dispute to an impartial (third) person chosen by the parties to the dispute who agree in advance to abide by the arbitrator’s award issued after a hearing at which both parties have an opportunity to be heard. Black’s Law Dictionary - 5 th edition II. Participants in a Divorce Arbitration A. The parties to the action; Third parties with standing B. Counsel for the parties C. Selected Arbitrator D. Witnesses and Experts
III. Process A. Private setting for hearing; privacy maintained B. Preparation of clients and trial similar to court hearing C. Rules of evidence apply unless agreed otherwise D. Arbitrator personally selected by parties and counsel as to their expertise in field E. Relatively quick and inexpensive as compared to litigation F. Flexible; Scope and issues determined by parties with their counsel G. Final and binding, except as to custody, visitation and child support. See Miller v. Miller, 620 A.2d 1161 (Pa. Super. 1993) H. Consolidation of issues before one fact finder; Control over the process I. Litigants more likely to abide by the results J. Possible loss of appellate rights
DIVORCE MEDIATION I. WHAT IS MEDIATION? A. Divorce Mediation is the step-by-step process through which separating couples arrive at an equitable and suitable agreement about their differences. Topics for discussion may include distribution of property issues, distribution of debt, financial and support issues, and parenting issues. B. Mediation provides an alternative to the adversary system which casts divorcing spouses as opponents. In Mediation, the spouses are viewed as cooperative adults who are restructuring their lives and the lives of their children. C. Mediation is conducted under the guidance of a trained professional who helps the couple make the necessary decisions about their changing future.
II. WHO USES MEDIATION? Mediation is used by couples who are only separating, by those who are also divorcing, by couples prior to marriage, and by couples post-divorce. III. WHY CHOOSE MEDIATION? By selecting Mediation, individuals in a dissolving marriage are choosing to take charge of their lives, maintaining their sense of dignity and self-esteem. They are saying that they prefer to end their marriage by a cooperative and rational procedure which minimizes the anger of divorce and the negative impact of litigation. IV. HOW DOES MEDIATION WORK? In Mediation, the couple proceeds through a series of steps. Briefly these are: A. Both spouses attend an orientation session in which a detailed explanation of Mediation is given. Parties are encouraged to have separate counsel to advise them of their legal rights as they go through the process of mediation. B. After the couple decides to mediate, they sign an Agreement to that effect covering the scope of the Mediation. At that time they will also sign a Fee Agreement and are asked to make a deposit covering the cost of the orientation and a retainer fee against which the time of the Mediator will be billed until depleted. The unused portion of this deposit is returned upon completion of Mediation. If depleted prior to the completion of the Mediation, the Mediator may require an additional retainer. The Mediator may also allow payment on a session by session basis with a smaller initial retainer requirement to be applied to fees incurred in addition to the sessions, such as the drafting of the Agreement, telephone calls, research and administrative costs. C. At the first Mediation session, the couple may enter into a temporary agreement for the duration of Mediation to address those concerns that require immediate and necessary resolution. D. The remaining sessions are used to help the spouses arrive at decision concerning any or all of the following: 1. Division of Property 2. Spousal Maintenance 3. Child Support 4. Parenting Schedules for the Minor Children 5. Any other Topic or Issue Agreed Upon by the Parties to be addressed by the Mediator
E. The mediation culminates in a Memorandum of Agreement which outlines the specifics of the couple’s separation agreement. F. The couple may consult with one or two attorneys concerning the settlement reached or preferably, engage the advisory services of attorneys throughout the process. Typically they will have various questions regarding the tax implications of their settlement. One attorney will then prepare a legally binding final Settlement Agreement incorporating these elements agreed to in Mediation. Once the couple signs this document, they may then have it incorporated in their Divorce Decree.
COLLABORATIVE FAMILY LAW I. Description - Collaborative Family Law is alternative dispute resolution process. It is an integrated, cross-disciplinary team approach that can be used to resolve any or all issues related to a divorce - property division, support, custody, and divorce. II. The Process A. Contractual commitment of the parties, their respective lawyers, and any other professionals engaged by the parties not to litigate. B. Attorneys and the parties execute retainer agreements not to litigate. C. Sole purpose and goal is settlement,- an agreement meeting the legitimate needs of both spouses to the maximum degree possible. D. Commitment to full voluntary and early disclosure of assets, liabilities and income. E. If either party initiates litigation, both attorneys must resign. F. Team of Professionals may include: 1. Domestic Relations Lawyers 2. Therapist coaches for each party 3. Mutually selected neutral financial advisor 4. Mutually selected neutral estate planner 5. Mutually selected child specialist (mental health professional) 6. Mutually selected business evaluator or licensed appraisers as needed 7. Any other agreed upon mutually selected professional as needed
G. Professional team members are specifically trained in Collaborative Law H. Negotiations usually conducted through a series of four way meetings. I. Allows for creativity and brainstorming in fashioning acceptable settlements. J. A “family friendly” alternative dispute resolution process. K. Articulation geared to real needs and interests - not positional bargaining. L. Combines the commitment to settlement of mediation, but allows individual legal advocacy and counsel of lawyers who are involved. Also includes conflict management and guidance of counsel throughout negotiations.
| 
