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The Changing Landscape of Divorce
By Lili A. Vasileff and Carl M. Palatnik, CFP®, CDFA

There are noticeable new trends in divorce that affect both the legal process and the financial strategies required to help clients move past it. These trends include: 1) an increased reliance on alternative dispute resolution (ADR) methods, including development of a new modality called collaborative divorce, which are gradually moving divorce out of the courtroom; 2) the continued evolution of the best interests of the child standard; 3) the alignment of antiquated statutes or cumbersome and complex case law with other states’ laws; and 4) a greater realization that the divorce process is most effective when it utilizes an interdisciplinary team approach. These and other trends will radically affect how the divorce process will evolve in the future.

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Click Here to arrange a confidential free financial divorce consultation.

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. Interdisci





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