Basics of Collaborative Law

Collaboration means to work together to achieve a common goal. The collaborative process involves the spouses, their attorneys and any other involved professionals engaging in non-confrontational sessions to discuss the issues and goals of the involved individuals. The issues may include divorce, support of a spouse and/or children, how to divide the marital assets, co-parenting plans and anything else that spouses need to decide.

The collaborative process involves spouses interacting directly to reach a negotiated settlement through a series of four-party conferences. The parties and their attorneys agree that if they are unable to resolve their issues through negotiation, the attorneys involved in the collaborative process will not participate in any future litigation.

The attorneys work together with the goal of reaching a negotiated agreement and listen to both spouses. The collaborative team focuses on the same goal. Even with this team approach, each individual can also feel confident that his or her attorney represents only him or her. Individuals can rely on their attorneys for advice and guidance with the assurance that the attorneys are also working toward the parties’ single goal – a negotiated resolution.

Collaborative attorneys have specialized training and assist the parties in defining their issues, gathering the information needed and offering creative solutions. The collaborative process usually results in a quicker resolution than the litigated alternative and can be less costly.

Everyone commits to good faith negotiation in a respectful and constructive manner. The parties and their attorneys also commit to full disclosure of information that is relevant to the spouses in their decision-making. If the parties successfully negotiate a resolution it will be reduced to a written contract that can, if necessary, be enforced through the courts.

The collaborative process can help the parties maintain a cordial relationship once the divorce and/or other issues have concluded. This is especially important when there are children involved. Children learn how to conduct themselves primarily by watching their adult role models, especially their parents. Demonstrating to your children that adults can address tough problems with respect and dignity to reach a negotiated resolution is an invaluable lesson for them.

If you are in need of assistance in dealing with family-related issues, including separation or divorce, you should carefully consider the process by which you will resolve all the issues that will arise and whether the collaborative process can meet your needs. The way in which you deal with these difficult situations may impact you and your family more significantly than you can imagine. If you would like to discuss the collaborative process and its use in central Pennsylvania, including Harrisburg, York, Carlisle and surrounding areas, or any other family law issue, please contact me.

Financial Cost of Divorce

Who decides how much a divorce costs? In large part, you and your spouse make that decision. Your actions, attitudes and approaches to the divorce process can have a significant effect on the financial cost. And the personal cost, but I’m not addressing that in this post.

Some costs are fixed and can’t be avoided. There are court costs associated with filing a divorce complaint and custody complaint (assuming you want or need a custody order). There are refinance costs if a house is being refinanced. But most costs associated with divorce come from legal fees and expert fees – so the more you and your spouse can do to control those costs, the better off you’ll be financially.

Since most of the costs associated with divorce come from legal and expert fees, you and your spouse can have a huge impact on the financial cost of a divorce! The more you battle to show who’s right and who’s wrong and try to prove your point, the more expensive it’s going to be. You’ll each be paying hourly rates to your attorneys to continue those arguments about who’s right and who’s wrong. You may also be paying fees to experts to argue against each other about how much your real estate, pensions, businesses or other assets are worth.

You and your spouse can agree to minimize the financial cost of your divorce by actively working together to resolve your disputes effectively and efficiently without paying your attorneys to continue your arguments. You can also agree to consult joint experts. You can agree on the process you’re going to use to resolve your divorce. It is generally less expensive to resolve a divorce using alternative dispute resolution methods such as mediation or the collaborative process than it is to use litigation (the court system). However, even if you use litigation, you can take proactive steps to minimize the financial costs.

I make no apologies for my hourly rate because I believe it’s fair and reasonable for the work I do. I also encourage my clients to use my time wisely to avoid any unnecessary expense. If you want to discuss the financial cost of divorce or any other family-law related issue, please contact me.

Valuing Assets

If you’re experiencing a divorce or administering an estate, you will probably need to value assets. In answer to a question I’ve heard many times, there is no one “right” way to value assets. There are many different methods and I won’t try to name them all here. I want to give an idea of some common methods and most importantly, emphasize that asset valuation can be individualized. Two important considerations in deciding a valuation method are the purpose of the valuation and the expense involved versus the probable value of the asset(s).

Expert valuation. You can have an expert provide an opinion of value for pretty much any asset – real estate, businesses, antiques, collections, livestock, household furnishings, etc. Expert valuation can be costly, ranging from hundreds of dollars to many thousands of dollars, but the cost may be worth the benefit depending on the ultimate value of the asset and the importance of having an impartial expert’s opinion. Experts are frequently used in litigation, where you want to do your best to convince a judge, divorce master or other decision-maker to accept your valuation as correct. Expert valuations are not financially practical for valuing relatively low value items such as household goods.

Party’s opinion of value. A party to litigation can testify as to his or her opinion of value of his or her own property. That means you can testify in court about the value of your own property. This may work well for items such as household goods, but may not be very effective for assets such as real estate if you are disputing an expert valuation. The decision-maker must consider who has more knowledge about the value – you or an expert in the field?

Agreements. Agreements can work well both in court and out of court. If you can agree on the value of assets, but not necessarily how they should be divided, decision-makers are generally happy to accept those agreed-upon valuations and deal only with the issue of how the assets should be distributed. If you can agree on the value of assets and you’re making the decisions yourselves, outside of the litigation process, then you are one step closer to resolving the dispute.

Auctions. Auctions are frequently used to value and sell estate assets, which establishes the fair market value based on what a willing buyer will pay. Auctions can also be used in divorce actions, limiting the bidding either to just the parties or opening it to third parties.

The multitude of ways to value assets is good news. It means you’re not stuck with only one method. It is always helpful to actively decide how to value assets so it’s done in an organized, understandable way.

Divorce and Business Owners

Business owners have additional concerns in divorce. Among those concerns are keeping your business healthy financially and personally, keeping business information confidential and keeping business decisions within the control of the owners. No business owner wants a divorce to negatively impact his or her business, but without thinking through the process of divorce and how to best handle that business throughout the process, bad things can and do happen. Both spouses, not just the business owner spouse, have a vested interest in making sure the business thrives during and after a divorce.

Keeping your business healthy throughout the divorce process can be extremely difficult. Most business owners want to stay focused on running their business and going through a divorce is a huge distraction. It can be distracting for the business owner, requiring phone calls and meetings with attorneys and other professionals, reviewing letters, documents, court filings, all of which take your time and energy away from running your business. It is distracting for employees, who see and hear the business owner (their boss) spending time on other matters and frequently leads to questions about the future of the business and therefore, the future of their jobs. If both spouses can explicitly acknowledge their mutual interest in keeping the business healthy and use a divorce process that allows for orderly, planned use of time and resources, it minimizes the distraction and unnecessary diversion of energy. It also presents a solid, controlled picture to the employees so they can confidently go about doing their work without the divorce drama.

Most owners want their businesses to be well-known but want the confidential information regarding the operations of their businesses to remain confidential. The divorce process has the potential to expose all of the confidential inner workings of your business to public scrutiny. Court records, including testimony and exhibits regarding business operations, management and valuation, are public records. That means if you discuss this information in court filings or hearings, anybody can go to the courthouse (or go online in most jurisdictions) and get copies of all your business-related information.

If you own a business and you give decision-making authority to someone else (divorce master, judge), you are also giving them decision-making authority over the future of your business. If you and your spouse can’t agree on business management during the divorce process, the court could end up making those decisions or appointing a third party to make them. Being a business owner myself, that’s a scary thought. That possibility should be a powerful incentive for business owners to carefully consider the process they’ll use for their divorce before actually starting it.

So how can you make sure your business not only survives, but thrives, despite the fact that you’re getting divorced? The first step is to get educated. Meet with an attorney to discuss all of the available options for how to go through the divorce process. Include your spouse in this education process (although he or she cannot meet with you and your attorney), since you’ll both be deciding what route to take in the divorce. Then put what you’ve learned into play. Engage in the best possible process to protect and preserve your business. Keep that in your mind as a goal when you’re making decisions. And make sure your attorney understands the importance of that goal to you.