New Year, New Resolution (Methods): Collaborative Divorce

I find the beginning of a new year is a good time to remind people of the some of the new alternative to divorce and custody litigation, as well as other, more traditional means of dispute resolution.

When someone realizes that they are facing a divorce or custody dispute, they often face a moment of terror. Not just because there are now major questions looming as to how they will divide their assets or see their children, but because of the images it conjures up. Many immediately think of the tall, dark, imposing wooden panels of the courtroom walls; the stern, gavel-banging judge deciding their fate; the watchful eye of the gallery staring down the parties as their lawyers shout objections and witnesses burst into tears.

Fortunately, most of these images come more from a poorly written episodes of “Law & Order” than from reality. Even if a divorce or child custody disputes do proceeds towards litigation, typically the family court does not involve any of these sensationalized components. It’s more likely to involve modern facilities, a lack of gallery, limited objections and, frankly, I’ve never seen a judge bang a gavel once. There are, however, plenty of tears.

Nonetheless, the idea of something as personal as a separation from your spouse, or the custody of your children, proceeding in court can (and to some extent probably should) be a little terrifying.

In essence, in the traditional litigation process, a party appears in court, where they will sit quietly while someone they barely know (their lawyer) argues the facts and circumstances of their life to a person who essentially does not know them at all (the judge), who ultimately decides how they live the rest of their life—both financially and with regard to their children.

Many of the decisions in family court will be made without the parties even being present, and when they are, much like traditionally good children, they are preferred to be seen and not heard. All of this isolation from the decision making process can be quite terrifying for parties. In some ways it is even more terrifying than the specter of the dark wood panels and booming echoes of the stern Judge’s words off of the walls. It is for this reason, over the years, many parties have sought to find an alternative means of dispute resolution to assist them with their divorce and child custody matters.

One of the newer movements in alternative resolution in family law is the use of Collaborative Law techniques.

Collaborative divorce has been cited in several studies as offering parties an alternative to traditional litigation which is more confidential, faster, and potentially less expensive than the traditional path. More important to the parties themselves, I believe, is the fact that they are active participants in the collaborative divorce process.

By design, the collaborative divorce process focuses on the parties’ goals and interests, and their ability to work with one another, not just to finalize an initial agreement but also in the long term. Often the parties will have many years of co-parenting ahead of them, and a collaborative divorce can help them to communicate better, allowing them to address minor issues which may arise over the years without the need to lawyer up and run to court.

So What is Collaborative Divorce? Visit my website or keep an eye out for my next post to learn more.

For more information about collaborative law, or other means of dispute resolution, please feel free to contact me at 412-261-9900 to schedule a consultation. You may also contact me through my website at www.uncouplingpittsburgh.com.

Please note that commenting on this blog or otherwise electronically corresponding with Attorney Myers does not create an attorney/client relationship.

CHILD CUSTODY - What the Heck is Generations - Or, How a Custody Action gets started

As I have mentioned before, one of the very common issues that comes up as part of the uncoupling process is how to address custodial arrangements for any children born of the parties’ relationship.  To be honest, that statement doesn’t actually cover all of the possible custody actions in Pennsylvania.  Obviously, children don’t necessarily have to arise out of relationships that would come with other uncoupling issues.  Further, there can be custody actions brought by “non-parents” like step-parents, grandparents and anyone who stands “in loco parentis” (which basically means that they discharge the duties of a parent regardless of their actual biological relationship to the child). 

In any case, to the extent the parties are able to do so, it is considered preferable to be able to work out a custody schedule between themselves.  While they will need an attorney or the court system to confirm the schedule by way of a written Agreement or Order that gets filed with the court, working through it together not only saves on time, expense and frustration, but also helps to start a healthy co-parenting relationship from the very beginning. 

However, not everyone is so fortunate, and they must proceed through what in Allegheny County is called the “Generations” process.

In Allegheny County and across the state, the entire custody system is set up with the fundamental goal of being able to reach settlement of the parties’ outstanding issues without the need for a trial.  Your custody action may go on for a very long time before you are entitled to a final hearing.  This is by intentional design in hopes that providing the parties with some education and compelling them to attempt to work through their issues, there will not be a need for a formal hearing. 

Here in Allegheny County, the process in place is called the Generations Program.  In Westmoreland County it is the CHILD Program.  Different counties have different names, but for the most part they all boil down to two components.

Once you file a Complaint for Custody you will receive, from your respective court, a “Scheduling Order.”  This Scheduling Order directs that each of the parties (and, in some cases, the children) must participate in the court’s custody process. This process typically includes an education session as the first step.   It has always been my strong belief that a little information can go a long way in forming the parties’ expectations and their ability to work through issues together. It seems that the court system shares in this belief.

This court-ordered education session lasts for several hours.  In Allegheny County, it includes the parents as well as children between the ages of 5 and 15.  The requirement for children to be involved varies from county to county.  You should always consult your local rules before making assumptions as to whether or not the children will be involved in this process.  However, across the board, the idea is that the education session provides the parties with information regarding how physical and legal custody work, the types of decisions that they need to make together, and that they must share input and information  with regards to their child. In general, it reinforces the idea that while you may no longer be an intact family, you must still function as an intact parenting unit and work with each other for the betterment of your children. 

It is generally understood that it is in the best interest of children that their parents be able to cooperate with one another and to share custody, both physically and legally. 

In addition to being scheduled for the education session where they get some of this co-parenting background, the parties will also be scheduled to appear for a mediation session.  In some counties, the first session includes the attorneys, but here in Allegheny County, it is only the parties that appear for the mediation session.  They come unrepresented and meet with a mediator who assists in trying to engage in dialogue to help them resolve their outstanding custody issues.  They will have the opportunity to present what schedule they would like to see, why they are opposed to the other side’s schedule, what issues can be worked through to try to resolve these differences, etc. 

If the parties are able to reach an agreement through mediation, this agreement can be memorialized and executed by both of the parties as a final agreement as to custody.  If they don’t reach an agreement, they will continue to move through the custody process which I will discuss in my next post.

If you found this post to be helpful or if you have any questions, please feel free to comment, post, share, like, etc. and visit www.uncouplingpittsburgh.com

DIVORCE 101 - SHOULD I STAY OR SHOULD I GO NOW - PART 3

So how do you show you’re separated, you ask?

Well, what is separation can be very tricky. It is a fact specific determination that is not terribly well defined. The rule is that you “stop living in a husband and wife-like manner.” (The quote is old. This works the same way for same sex couples now that same sex marriages are recognized in PA.)

Whether you “are living in a husband and wife-like manner” is very specific to an individual couple, as you look at how your lives have changed since the alleged separation date. The most important fact, though, is did you both know you were separating? If you move to another state to get your master’s degree, and a year in decide you want a divorce, you didn’t separate when you moved for school because neither one of you knew you were separating at that point. If you have this epiphany a year in, but don’t tell your spouse for another year, guess what, you just now separated (two years after you moved) because you didn’t realize you were separating when you moved there, and while your feelings may have changed a year earlier, you didn’t tell your spouse that until now. Everyone in the relationship must be on notice that the relationship is ending. Notice can be verbal or in writing.

Under law, the date of filing a divorce is a presumptive date of separation, but either party can present evidence they separated earlier or later if things move forward in court. That’s were a written notice of separation can come in handy.

However, actions speak louder than words. If you say “separation” but keep acting like spouses, well, then you might not have separated. The words themselves aren’t magic and the Court will look at what you have been up to since you said them.

Nonetheless, nothing is getting done over one side’s objection until the two year waiting period has been met. If you are thinking about separating from your spouse, I highly recommend that you speak to an attorney to know your rights and obligations in the event of a separation within or outside of the home, and how to go about letting the other side know that you are, in fact, separating.

As I always point out, separation—even the very beginnings of separation—can impact every single aspect of your life, will impact you legally, financially and emotionally.

It is important to get the correct information to know what to expect. Consider speaking with a counselor, either individually or as a couple, before facing these changes. Be sure of your feelings. Once you are sure of your feelings (or at least pretty sure) talk to a lawyer to get some idea of what to expect from separation and/or divorce.

If you found this helpful, please share so that others can, too!

DIVORCE 101 - SHOULD I STAY OR SHOULD I GO NOW PART 2

SHOULD I STAY OR SHOULD I GO NOW  - PART 2

Separation also affects support.

If you are talking about physically separating, and you are no longer sharing the household expenses, this can trigger a right to support even if a divorce complaint has not been filed. That can include spousal support for a lower wage earner and child support depending upon your respective incomes and custody arrangement. While two parties are still physically in the same home, it is largely assumed that there is not a need for support so long as nobody is being left completely penniless and the bills are getting paid.  When you stop being under the same roof and this stops being the case, you can find yourself facing a complaint for spousal support and/or child support.

It is not necessary to stop living in the same home to establish separation, so you do not necessarily have to move out of your home; therefore, spousal and child support might not be triggered. (But really awkward living arrangements will be.)

Support rights change if someone files for divorce.

Once a divorce gets filed, a party can ask for support even if everyone is still in the same house. Heck, you may have to pay support even if the other side doesn’t need it (i.e. you can get support you don’t even need during the period of separation).  This support for a spouse that comes into play after a divorce is filed but before it is finalized is called alimony pendente lite.

The previously discussed two year separation period can be used for a party to obtain support during separation, and they might not be entitled to it after a divorce (or even during separation).   The support you can receive while you are separated or while a divorce is pending is calculated differently than alimony, the type of support you can receive after divorce.  A party may be able to use the two year period of separation to collect these funds, even if they would be capable of self-support after the divorce and not an alimony candidate.   Additionally, while a party may have had an entitlement issue barring them from receiving spousal support, this doesn’t apply to alimony pendente lite.

So what is an entitlement issue?

This does not refer to someone thinking they are entitled to get everything in this world (though that type of thinking might be a reason to separate). If you haven’t been a faithful spouse, if you abandon or abused your family, or if you aren’t separating for the right reasons, you may be barred from receiving spousal support.     If you physically separate and there is no divorce, a party may not be entitled to the support they need if they don’t have clean hands. If you leave for the wrong reasons, you may be leaving behind your support claim as well.

Separation will also trigger custody issues.

Once you have separated, you can file for custody.  The court can even fashion an order while the two of you are still living under the same house but it will not go into effect until you are living in separate homes.  Whether you are separated in the home or out of the home will play a major role on how often you can see your children.  Continuing to reside in the home likely means seeing your child every day, which is almost guaranteed to be at least twice as much as you will see your children if you move out. 

However, continuing to live with your significant other post-separation is not for everybody. It can present a host of problems like fights about expenses, potential PFA exposure, etc.

If you leave are you really giving up your house?

Most often, yes.  Whether or not someone physically leaves the marital residence can affect equitable distribution in that in most cases the party who continues to reside in the home during separation and pendency of the litigation tends to be the party who receives the home at the time of equitable distribution. 

IF YOU FOUND THIS HELPFUL PLEASE LIKE AND SHARE WITH OTHERS.  IN MY NEXT POST - HOW TO SEPARATE