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.

Whitewood: Same-Sex Marriage Legal in PA

Same-sex marriage is now legal in Pennsylvania. In Whitewood, et al. v. Wolf, the United States District Court for the Middle District of Pennsylvania (Judge John E. Jones, III) discarded Pennsylvania’s law defining marriage as “between one woman and one man” to “the ash heap of history.” Judge Jones determined that the law violated the Due Process and Equal Protection clauses of the Fourteenth Amendment to the United States Constitution.

Judge Jones’ decision not only invalidated Pennsylvania’s law prohibiting same-sex couples from legally marrying, but also required that Pennsylvania legally recognize same-sex marriages validly performed in other states. I will not dwell on the legal technicalities of “rational basis” versus “heightened scrutiny” review set forth in the opinion. I want to address the practical consequences of this decision.

Same-sex marriage is now legal in Pennsylvania. The practical consequence to me is that I need to revamp my website to take out all those cautions about same-sex couples not having the legal protections afforded to married couples – BUT only if they are legally married. Married couples, regardless of gender, are now treated equally. Unmarried couples, regardless of gender, still do not have the legal protections afforded to married couples. That means unmarried couples must still take additional steps to secure their financial and personal relationships.

The practical consequence to same-sex couples who want to be married is that their marriages are now legally recognized in Pennsylvania. So same-sex couples who actually get married don’t need to bend over backwards trying to make their legal relationship the same as those of other married couples anymore. The big question for same-sex couples who now wish to get married in Pennsylvania is whether they need a prenuptial agreement and how they’re going to arrange their financial life.

Still Parents After Divorce

The title of this blog post says it all. If you are divorcing or ending any other relationship in which children are involved, you and your spouse or significant other will be tied together for the rest of your lives as parents. That means the actions you take in your divorce are going to stick with both of you and with your children.

I’ve had clients point out that they only need to interact with their spouse or significant other until their child or children turn 18 and are legally adults. I always correct that perception and point out that even after children are legally adults, children still need to interact with both of their parents and their parents still want to be involved in their children’s lives. There are graduations, weddings, births of grandchildren, holidays and numerous other occasions where you and your spouse or ex-spouse will need to interact. I think it’s important to keep that fact in mind while deciding how to handle your divorce and making the substantive financial and personal decisions during that divorce process.

If you want to provide a positive role model for your children to show them how adults can make difficult decisions with dignity and respect, take the time to carefully consider alternative dispute resolution methods such as the collaborative law process and mediation before starting your divorce action. Your children will see and hear how you and your spouse conduct yourselves during the divorce process and will learn from those observations how they should conduct their own relationships.

If you want to preserve a positive parenting relationship with your spouse or significant other after the end of your marriage or personal relationship, carefully consider alternatives to the litigation process. Traditional litigation puts parties in the role of adversaries, using their time, money and energy to show that their position is right and the other person’s position is wrong. This process does nothing to preserve a positive parenting relationship. If you and your spouse are able to work together through mediation or the collaborative law process to make the difficult decisions involved in ending your personal relationship, you will also be preserving that positive parenting relationship.

Remembering that you will still be parents after a divorce can be a powerful incentive to handle your divorce with respect and dignity. If you would like to discuss this topic or any other family law related topic with me, please feel free to contact me.

Why Should I have a Will?

Do you know what happens to your assets when you die without a will? Most people don’t. The state legislature has prepared a default estate plan for us in case we die without a will. Your assets will be passed on to family members – maybe not the family members you would choose to receive your assets, but family members nonetheless. If you don’t have any family members within the state-designated structure, then the state will gladly accept your assets.

You need a will to give your executor or executors (the person or persons you designate to handle your estate) instructions about what should happen to your assets upon your death. You’ve worked hard to accumulate assets during your lifetime and probably would like to make sure certain people receive those assets when you die. The best way to make sure that happens is with a valid will.

Maybe you would like certain non-relatives or charities to receive some of your assets after your death. The only way to do that is with a will. Maybe you and your spouse would like to designate a person or persons to care for your children in the event of your death. That’s a compelling reason to have a will! Without those instructions, your wishes may not be carried out. Maybe you would like to leave specific items to certain people – another reason to have a will. Maybe you want a certain person to care for your pet in the event of your death. The best way to make that known is in a will. Maybe you’re not married but would like assets to go to your significant other in the event of your death. That will only happen with a will.

A will doesn’t need to be complicated or expensive. It needs to be clearly worded and validly executed. The preparation and execution of a will is really is not that intimidating and your attorney should be able to lead you through the decision-making process. Feel free to contact me if you want to discuss preparing a will.

Do You Need a Cohabitation Agreement?

If you’re cohabitating (living with someone), you need a cohabitation agreement. That doesn’t mean the world will grind to a halt if you don’t have one, but you’re going into this arrangement without a clear understanding of what happens when conflicts arise. If you want to live with your significant other or even a platonic roommate and have clear expectations, boundaries and consequences, you need to discuss those things in advance and reach an agreement. If not, you may have two completely different sets of expectations going into this arrangement and the law, which provides the default set of rules, may require you or your partner to handle things very differently than what you believe would be fair. I’m not necessarily talking about Sheldon Cooper’s infamous “Roommate Agreement” from The Big Bang Theory, but you can cover a lot of potential pitfalls with a reasonable agreement.

Cohabitation covers a wide range of situations, but the basic scenario is two people who are not married to each other living together. You need to figure out how you’ll handle your finances – from paying monthly bills to putting aside savings. You need to decide how assets will be handled. If you buy things together, who pays for them and how? Who gets to use them? When? How? Who pays for repairs? Are you buying a house together? Does one of you own the house in which you’re both living? Are you both responsible for rent if you’re living in a leased space? Are you included in each other’s estate plans? How about life insurance? What happens if your relationship changes or ends? If you have children together, how will you raise them? I could list a million questions, but I think that provides a taste of what you may need to address.

The purpose of a cohabitation agreement is to eliminate potential conflicts in advance and to provide agreed-upon resolutions of actual conflicts when they arise. You can eliminate potential conflicts by considering ahead of time how you’ll handle finances, parenting arrangements, buying property – pretty much anything you can imagine doing while you’re cohabitating can be addressed in advance. You will have conflicts, disagreements, differences of opinion, or whatever you want to call them. And the more time and effort you put into planning in advance how to resolve those inevitable conflicts, the better position you’ll be in when they actually arise. And if both of you agree, you can change the terms of your cohabitation agreement to meet your changing situation.

Cohabitation agreements can be as creative and inclusive as you both want. You can jointly determine the rules and guidelines and what will happen if you reach a point where you can’t resolve your conflict. It doesn’t matter if anyone else would use the same rules or guidelines because they apply only to you. You can address all of the possible scenarios that come to mind or you can address only the immediate issues that you’re facing when you start to live together. You can also decide in your cohabitation agreement what process you’ll use to end your relationship if you decide it’s not working. You can specify that you’ll use alternative dispute resolution methods, such as the collaborative law process or mediation to reach a resolution, so you can avoid the court system. Without a cohabitation agreement, unmarried couples are caught in a maze of different laws addressing different areas of their relationship.

If you’re living together, you should have a written cohabitation agreement. Set out the rules and expectations in advance so you’re not trying to figure them out as you go along.

Using the Domestic Relations Rules

The Domestic Relations child and spousal support guidelines deserve special mention here. Talk about a one-size-fits-all (or none) solution! The PA support guidelines are based on both parents’ net monthly incomes, with virtually no consideration for the parents’ or children’s actual expenses or needs. The guidelines are necessary for deciding the sheer volume of support cases throughout the state, because the available conference officers don’t have the time or resources to tailor support solutions for each family. But that doesn’t mean the support guidelines are the logical solution for all families.

The support guidelines are a default rule to be used if the parties can’t reach an agreement. There’s no magic to the guideline formulas. Child support is based on statewide statistics. Spousal support and alimony pendente lite are based on a formula. Just because they exist doesn’t mean they’re right for everybody. If the guidelines changed drastically tomorrow, would those new guidelines suddenly be right for everybody instead of today’s guidelines? I don’t think the new formulas would be any more “correct” than the old formulas.

I suggest using the domestic relations guidelines (and the domestic relations office, for that matter) only as a last resort, if you’re absolutely unable to reach an agreement. I’ve seen many clients spinning through the revolving door of the domestic relations office, attending one conference and court hearing after another, steadily and surely increasing the level of animosity between the parties and the amount of money they spend on attorneys’ fees, without much to show for their efforts.

In my opinion, parents, spouses or partners are much better off reaching a mutually acceptable support agreement based on their incomes, expenses, needs and unique circumstances instead of using the one-size-fits-all guidelines. This is not meant in any way as a derogatory comment on the hard-working individuals who work in the domestic relations offices. I admire the work they do and I’m very glad they do it. I just think they should have less work.

If you would like to discuss the use of domestic relations guidelines in central Pennsylvania, including Hershey, Harrisburg, Carlisle and surrounding areas, please contact me.

A Recent Project

I recently had the pleasure of creating a podcast with John Gavazzi, PsyD. John is a psychologist and we recorded the podcast for use by psychologists, but it has tremendous potential for non-psychologists also. Here are two different links to the podcast:

https://itunes.apple.com/us/podcast/what-psychologists-need-to/id809007108?i=242673314

http://www.mixcloud.com/Ethics_and_Psychology/what-psychologists-need-to-know-about-divorce-collaborative-law-and-mediation/

It’s a 55 minute question and answer discussion of the basics of divorce, including some substantive law from the PA Divorce Code and some discussion of the different processes people can use to work through divorce or other family conflicts. It’s like a free seminar with lots of valuable information, available for anyone who wants to download it!

If you’re looking for information about divorce, the collaborative process, mediation and litigation and you would rather listen to a podcast than read about it, this is perfect for you. I would love to get some feedback about this from listeners/readers.

The details of this information could easily fill hours of time, so we stuck to the basics. John and I have already discussed creating another, similar podcast about parenting arrangements (otherwise known as custody), so hopefully that will be forthcoming in the future.

If you know me or have read much of what I’ve written, you know I want my clients to make informed decisions. For that reason, it’s exciting to have the opportunity to educate people about these issues, even if I may never speak with them in person.

I’d like to thank John Gavazzi again for including me in his podcast project.

Concerns for Same-Sex Couples

In Pennsylvania, same-sex couples face unique legal challenges because even if they consider themselves a married couple, they are not legally allowed to marry. Even same-sex couples who are legally married in a different state are not recognized as a legally married couple in Pennsylvania. This means the default rules that apply to opposite sex married couples do not apply to same-sex couples. Therefore, same-sex couples should take the time to plan their financial and personal affairs going into their committed relationship and should be aware of the legal remedies available (or not available) if their relationship ends.

If an opposite sex couple gets married without a prenuptial agreement, the divorce code provides default rules for how their property will be divided and how they may be required to help each other meet their reasonable financial needs and expenses if they get divorced. These default rules do not apply to same-sex couples. Same-sex couples whose relationship ends without a prior agreement in place are treated as strangers or business partners when it comes to dividing property. There is no provision for same-sex couples to have any responsibility for helping each other meet their own reasonable expenses if their relationship ends.

If an opposite sex couple gets married and does not provide for their estate planning, the estate code provides default rules for how their property will be divided in the event that one or both of them pass away. Those default rules automatically include the spouse as a beneficiary of the deceased spouse’s estate. These default rules do not apply to same-sex couples. When one partner in a same-sex relationship passes away without specific estate planning documents in place, the other partner is not included as a beneficiary of the estate. Unless the deceased partner has specifically provided for his or her partner in their will, that partner is considered a stranger and will not inherit from the estate.

The lack of default rules for same-sex couples places an additional burden on these couples to plan ahead in their relationship. If same-sex couples are going to commit themselves to a relationship and live as married partners, they must establish in advance the parameters of what will happen if their relationship ends for any reason. The good news is that same-sex couples are free to establish their own rules and guidelines for what will happen if their relationship ends, without the artificial constraints of the divorce code.

One additional area in which same-sex couples must actively plan is their health care decision-making. If one spouse in an opposite sex marriage is unable to make decisions about his or her health care, the other spouse is a default decision-maker. That rule does not apply to same-sex couples. If one partner in a same-sex relationship is unable to make health care decisions for him or herself and has not specified their partner as the decision-maker, that partner will not be automatically included in health care decisions.

Until same-sex marriage becomes legal in Pennsylvania, same-sex couples in committed relationships who wish to live as if they are legally married must take the proactive steps to establish the parameters of that married relationship. In these vital areas, the cards are stacked against same-sex couples but the situation can be remedied with a little planning.