DIVORCE MEDIATION AND COLLABORATIVE LAW
The last several years have experienced an increasing application of ADR to
the divorce process. The reasons for this are manifold, and include greater
control of the process and its ultimate outcome, increased privacy, lower financial
costs, more creative problem-solving opportunities, faster resolution of issues
and reduced collateral damage to the family.
Divorce mediation, the most widely applied method, is currently used by over
a quarter of a million people annually. In divorce mediation, a neutral third
party helps facilitate discussion between the divorcing parties, enabling them
to negotiate and resolve the issues themselves. Divorce mediators come from
a variety of backgrounds, and with these come different vantage points. Most
commonly, divorce mediators are also lawyers and therefore most knowledgeable
about the law, therapists, who are best able to facilitate negotiations; or
financial planners, who have the greatest and broadest financial expertise.
Another method that has been growing in popularity is collaborative law. In
this situation, both parties retain separate lawyers who advise them throughout
the process and assist them in negotiations. Collaborative lawyers are required
to commit in advance to helping the parties reach an agreement and avoid judicial
intervention. If the collaboration fails, the parties can take the case to court,
but must do so with a different set of lawyers. A striking example of the increasing
utilization and success of this approach is evidenced in Medicine Hat, Alberta,
Canada, one of the first Canadian cities to apply the collaborative law process
to divorce. Collaborative law has become so popular in Medicine Hat that today
the number of family law cases on the docket has been reduced by almost 85%,
freeing up large amounts of court time. Another trend that may be moving divorce
out of the courtroom, at least in part, is the increased utilization of pre-
and post-nuptial agreements.
THE MILLER COMMISSION
In 2004, Chief Justice Judith Kaye created what has come to be known as the
Miller Commission (after retired Supreme Court Justice Sondra J. Miller, who
headed the commission). The commission was charged with reviewing the divorce
process in New York State and making recommendations for reform. In 2006, the
Miller Commission published its report, which included a recommendation that
the state begin to incorporate ADR into the divorce process. In February 2007,
Justice Kaye, in her annual address to the judiciary, also announced plans to
create a new family law center in New York City, a center intended to make divorce
faster and cheaper for couples who want amicable settlements. When it opens,
the Collaborative Family Law Center will serve as a pilot project on alternative
approaches to divorce and will make New York the first and only state to establish
such a venue. Judge Kaye stated, “We anticipate that spouses who choose
this approach will find that the financial and emotional cost of divorce is
reduced for everyone involved, which is surely a step in the right direction.”
COLLABORATIVE DIVORCE: A NEW INTERDISCIPLINARY COLLABORATIVE LAW MODEL
While divorce practitioners have routinely retained experts to provide insight
into specialized issues, there has also been growing usage of interdisciplinary
divorce teams, particularly those involving mental health professionals and
financial planners. In these situations, teams of professionals from different
areas of expertise closely interact with one another and their respective clients
during the entire divorce process.
Starting in the early 1990s, an interdisciplinary approach that applies the
principles of collaborative law to divorce has begun to emerge. Referred to
in this article as “collaborative divorce/interdisciplinary model, “this
modality employs, at a minimum, a neutral divorce coach and a neutral financial
planner, in addition to the collaborative lawyers representing their respective
clients. Aside from its success in settling issues in divorce, collaborative
divorce/interdisciplinary model is significant in that it embraces — in
fact requires — a team (or interdisciplinary) approach.
While still in its infancy — only about 100,000 individuals have used
the collaborative divorce/interdisciplinary model to date — it is making
strong gains among both practitioners and the general public.
In 1999, there were fewer than 100 collaborative practitioners. It is estimated
that today over 20,000 people have been trained in collaborative divorce/interdisciplinary
model. Interdisciplinary approaches to both divorce litigation and divorce mediation
are also being vigorously pursued. As interdisciplinary approaches continue
to evolve, high practice and ethical standards governing the various professional
participants and the manner in which they interact must and should also evolve.
Work in this direction for at least the collaborative law and divorce financial
planning components is already actively underway.
FINANCIAL PLANNERS
As financial planners, the authors have seen firsthand the benefits of incorporating
a qualified divorce financial planner into the divorce team. The financial planner
is a generalist with training and experience in all areas of personal finance
and money management, including tax planning, retirement planning, present-
and futurevalue calculations, employee compensation and benefits, economic forecasting,
estate planning and risk management. This broad perspective gives the planner
a unique ability to analyze assets and liabilities and income and expenses as
they integrate and interact with one another in both short- and long-term divorce
contexts. Because of this, cases involving divorce financial planners are often
settled or resolved more quickly, with better results and at less cost, than
those using more traditional methods alone.
Divorce financial planning, as defined by the Association of Divorce Financial
Planners, a not-for-profit professional association of divorce financial planners
and allied divorce professionals, is a fee-only process that adheres to the
financial planning practice and ethical standards established and monitored
by the Certified Financial Planner Board of Standards. In divorce financial
planning, the principles and methods of traditional financial planning are applied
to divorce. These include collecting, clarifying and analyzing data; studying
this data in a longterm economic context; evaluating the financial viability
of alternative settlement scenarios; conducting periodic monitoring and recommending
modifications when postdivorce circumstances or changes in financial goals so
dictate.
When applied to divorce, financial planning can help individuals stay focused,
work more productively with their attorney or mediator, develop a better understanding
of short- and long-term needs and paying abilities, make smarter financial decisions,
avoid costly and often irreversible mistakes, avoid emotionally driven outcomes,
analyze alternative outcomes and arrive at agreements that are fair and workable
and avoid letting potentially workable outcomes go bad.
Some of the other benefits of divorce financial planning to matrimonial attorneys
and their clients are: 1) more thorough treatment of the financial issues; 2)
better settlements with fewer mistakes; 3) increased likelihood outcomes will
be workable; 4) reduction in emotional distractions and fears; 5) reduced liability
or concerns about liability; 6) reduced stress; 7) increased efficiency and
productivity; 8) increased client satisfaction; and 9) increased ability to
focus on the negotiation process and avoid getting bogged down with peripheral
issues.
The legal aspects of divorce theoretically end when the divorce is granted
and the processes delineated in the decree executed, but the divorce process
continues well beyond the actual divorce event, and the divorcing parties will
likely be affected by the outcome for years to come. For some this can be financially
and emotionally devastating, sometimes because the outcome is unworkable from
the beginning and the workability not thoroughly analyzed and sometimes because
the financial solution was just not properly managed.
NO-FAULT DIVORCE
New York remains the only state requiring establishment of fault in divorce,
but the Miller Commission last year called for legislation to permit no-fault
divorce in New York State. Despite the commission’s recommendation and
the actual passage of a bill by the New York State Assembly to establish irreconcilable
differences as a ground for divorce, legislation enacting this ground has once
again become stalled in the legislature.
In the recent case of Molinari v. Molinari, 2007 N.Y. Slip Op. 50781
(Sup. Ct., Nassau Co., 4/16/07) (Ross, J), Supreme Court Justice Robert Ross,
head of Nassau County’s Matrimonial Part, initially challenged the legislature
to pass no-fault legislation by staying rendering judgment in the parties’
fault trial until the legislature ruled on the pending legislation. The husband
had sought the divorce based on the ground of constructive abandonment. He was
unable to prove this ground, and his wife contested the divorce, presumably
to gain concessions from him on the economic issues. This is a common ploy in
New York in situations in which fault is difficult or too costly to prove (having
to prove fault can raise the cost of obtaining a divorce in New York significantly
and even put it out of reach of people with insufficient means). This is one
of the major reasons no-fault laws have been repeatedly proposed. When it became
clear that the legislation had once again stalled in the legislature, Judge
Ross ruled against the husband and denied the divorce, thereby making any hearing
of the economic issues moot.
In a separate action, also in the direction of no-fault divorce, the Assembly
voted to reduce the waiting period for legal separations from one year to three
months. The waiting period was subsequently amended by the Senate to six months.
Again, however, the legislation became stalled in the legislature.
Although past attempts to pass nofault legislation have failed, it is likely
such legislation will continue to be considered in the future and will eventually
pass.
ENHANCED EARNING CAPACITY
New York was the first state to value enhanced earning capacity (EEC), in O’Brien
v. O’Brien, 66 N.Y.2d 576 (1985). Although it has been over 20 years
since the original Court of Appeals decision in O’Brien, New
York is still the only state to value EEC. To summarize an enormous amount of
ensuing case law, O’Brien “opened a can of worms,”
and the complexity of the valuation issues that have arisen as a result of this
decision has continued to increase.
Recent case law involving “double counting” (duplicative award)
issues that evolved from the original decision suggests that the courts have
become increasingly reluctant to further complicate this concept. As with no-fault
legislation, we believe New York will eventually fall in line with other states
and reject it, eventually treating it in a much less complex fashion. In Holterman
v. Holterman, 3 NY3d 1 (2004), for example, the court refused to extend
the double counting issue to child support. More recently, in Keane v. Keane,
3 NY3d 115 (2006), the court refused to extend the double counting concept to
the distribution of tangible, incomeproducing assets. Furthermore, it appears
the system has also declined to follow Hougie v. Hougie, 261 AD2d 161
(1999), which would have expanded the definition of EEC well beyond licenses
and degrees.
‘BEST INTERESTS OF THE CHILD’ STANDARD
Although a “best interests of the child” standard is contained
in our statutes and is based on a totality of circumstances, it is a subjective
standard. As a result, the relative importance of the various factors that relate
to this standard is continuing to evolve, and there has been a significant shift
in the court’s attitude and philosophy toward children. For example, while
“primary caregiver” was, for a period of time, the most important
factor in custody determinations, the willingness of a parent to foster a relationship
between the child and the other parent appears to be becoming more and more
important. Furthermore, there is now a negative bias toward parental alienation,
interference with visitation and the filing of false accusations.
A growing shift in child custody cases within the last several years also reflects
a stronger bias toward joint legal custody. In many ways, as both parents increasingly
share the day-to-day responsibilities of child rearing and income contribution
to the family, the court system is reflecting this trend and striking a more
balanced tone on the issue. Even in situations in which sole custody is awarded,
there appears to be less of a bias toward awarding custody to the mother. Finally,
softer terms such as “parenting plan,” “parenting time”
and “access time” are gradually replacing the more archaic terms
“custody” and “visitation.”
GRANDPARENT RIGHTS
The best-interest-of-the-child standard is also being applied more liberally
to grandparent custody and visitation cases. In a recent Court of Appeals decision,
E.S. v. P.D., 8 NY3d 150 (2007), the court held that § 72(1) of
the Domestic Relations Law in New York, granting grandparents visitation rights
when deemed in the best interest of the child, is constitutional and does not
conflict with the United States Supreme Court’s decision in Troxel
v. Granville, 530 US 57 (2000). In this case, the maternal grandmother
had been asked by the husband to move into the marital home to care for her
terminally ill daughter and grandson. After her daughter’s death, the
child’s father asked the grandmother to stay on and continue to help with
the child’s care as well as other household duties. After about three
and one-half years, the relationship between the father and the grandmother
began to sour with respect to caring for the child. The father demanded that
the grandmother move out and forbade her from having further contact with the
child. The Court of Appeals ruled against the father and found that visitation
by the grandmother was in the child’s best interest.
In a recent Appellate Division decision Steinhauser v. Hass, 40 A.D.3d
863 (2d Dept. 2007), also subsequent to the death of the children’s mother,
the court ruled that the mother’s death provided the maternal grandmother
with automatic standing to seek visitation. Evidence further established that
the grandmother enjoyed a meaningful relationship with the children. The court
also concluded that evidence of animosity between the father and the grandmother
was not the proper basis for the denial of visitation.
There have been many cases in which contrary rulings have been made, but the
above cases and the affirmation of DRL §72 suggest this may be a trend
worth noting.
Are You
Going Through or Contemplating Divorce?
