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.

New Year, New Resolution (Methods):

How Collaborative Divorce is Changing Divorce and Child Custody

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.

WHICH HOME FOR THE HOLIDAYS?

With Thanksgiving arriving next week, and Christmas, Hanukkah and a host of other holidays just around the corner, I wanted to recirculate last year’s holiday post, updated slightly.  Though another year may have passed, it rings just as true.

On the Simpsons, Helen Lovejoy is often quoted as saying, “Will someone please think of the children?” I think this is a particularly appropriate sentiment during the holiday season. For families who have not been “intact” for some time or others who are going through transition, often the stress of the holiday season, coupled with the additional stress of new living circumstances, makes the holidays particularly trying.

I find clients who are transitioning to their new lives find the first holiday season to be particularly difficult. Everyone faces stresses associated with the holidays in the form of decorating, baking, buying presents, making merry and balancing budgets. Those facing the new world of contemplating whose Christmas festivities the kids will attend and what holiday traditions can survive the transition have it particularly hard.

To those of you who have already worked through these issues, and who know exactly what you will be doing this holiday season, where the kids will be over their break, etc., I commend you on the efforts that had to go in to finalizing these arrangements and making peace with the new schedule.

To those of you who are just facing these challenges for the first time, I wanted to share some thoughts.

1) Helen Lovejoy was right. We should be thinking of the children. The holiday season, Thanksgiving and Christmas break…these are magical moments for them and getting bogged down in the stress or fights over exactly how they will be spent detracts from that magic. Even if you are not so foolish as to try and discuss these issues with your children (which is hopelessly inappropriate), your stress still shows and they’ll still pick up on it. First off, never, ever, ever talk to your children about difficulties that you’re having making holiday arrangements, or tell them you’re sad that they won’t be there with you Christmas morning or anything of the like. They’re your children, let them stay that way. The world is going to do enough to disavow them of their innocence and hope; don’t speed up the process.

2) Do talk to somebody. Separation and divorce are incredibly stressful and emotionally painful experiences. Going through them alone and maintaining some degree of self and sanity is nearly impossible. Talk to your friends. Talk to your family. Talk to your priest. Talk to your therapist. Talk to somebody. Anybody—(except your children). You can talk to your lawyer, too, but it’s best that you rely upon them for some education on your legal rights and responsibilities and not the emotional issues. We bill at a higher hourly rate than therapists and we’re never covered by insurance.

3) You should talk to your co-parent. Now that you’ve talked out some of the emotional pain that goes with trying to navigate these new issues, it’s time to talk to somebody else, and that’s the other person, the person with whom you’re sharing custody of your children, not just for this holiday season, but for the rest of your lives. The sooner you can work out a schedule for how holiday custody will work and where the children will be over their break, the sooner you can close this chapter and move forward with actually enjoying the holiday season.

Not everyone can talk through their issues in a reasonable, productive manner. They may have to turn to lawyers or to the Courts for help. Let me assure you of two things:

1) There is emergency Motions Court on December 22^nd which will be filled with almost nothing but last minute motions trying to resolve Christmas custody disputes; and

2) You do not want to be there.

Please make the effort at resolution. If you can’t talk it through between yourselves, perhaps you can try mediating, or having your attorneys negotiate, but I assure you, you do not want to be litigating where your child eats dinner or opens a gift.

Divorce or separation from the parent of your children will be hard. Nobody can make it easy. Talking to the right people, learning the right information, and addressing your outstanding disputes in a timely manner will make it easier.

There is no cure for the hurt, but there are many proactive things you can do to try to minimize how that impacts you and your children and how you navigate the co-parenting relationship moving forward.

In all likelihood, you will share custody of your children. It’s almost a guarantee that you will share custody on the holidays. It will be necessary to make new traditions and work on moving forward. The better you do that, the more positive lessons you teach your children about how to work with others, to manage your emotions and hurt, and to move forward in a responsible manner. As I said above, life will do plenty to eat away at your children’s innocence and hope. Don’t help it. What you’re doing now is teaching them the skills to deal with those upsets that will happen in their own lives.

Teach them well and enjoy the holiday season.

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

CHILD CUSTODY - Vacation (custody) All I ever Wanted

I am sure that if you haven’t already, at some point this summer just about all of you have had a conversation with a friend or relative about their plans for their big summer vacation this year: where they are taking the kids, what they are doing, how much those ride-all-day passes cost at the amusement park, etc.

What they probably didn’t share with you is whether or not their attorney had to go to court to make that happen. Seems kind of crazy, doesn’t it? That somewhere between airfare, hotel rooms, and tickets to Wally World, your friend or relative may have also been paying someone $300 per hour to go to Motion’s Court to ask for permission for a relatively mundane thing like a vacation with their children.

Unfortunately, I can assure you that this is an issue that arises in family cases and which has me spending a couple of days every summer standing in Motion’s Court along with numerous other attorneys (also billing their clients) to fight about the right of someone to take their children to the beach.

Maybe some of you reading this had to do exactly that.

Maybe some of you reading this are the reason someone else had to do exactly that.

In either case, it seems like a timely topic and a good opportunity to provide some advice:

1. You aren’t stopping a vacation request.

Are you co-parenting with Charles Manson?

If the answer to that question is no, then the answer to their vacation request is yes.

Even people who have minimal custody time throughout the year are going to have some entitlement to summer vacation. Yes, there are exceptions.

Family court is ruled by exceptions, not governed by rules.

Certainly, if there has been a history of abuse, substance abuse, etc., this may raise more questions about vacation time than your average case, but even in these situations, chances are the other side is getting a vacation with their kids. They may have to take a supervisor. That supervisor might be a parent, sibling, or some other relative/agreed upon third party. People on Megan’s List have taken their children on vacation. I am aware of more than one.

Saying that the court recognizes a very strong right to be able to take your children out of town for a week would be a gross understatement. While there may be whistles and bells and stipulations, chances are the vacation is happening. As always, the particular facts and circumstances will dictate whether or not there should be strings attached, and if so, what strings, but chances are you are losing your anti-vacation argument, or at least compromising your position considerably.

2. No, there is not an absolute right to throw your child in the car and drive towards the sunset. Much like any other issue that involves co-parenting, there has to be a sharing of information. Both parties are entitled to know where their kids are, on vacation or otherwise. This is true whether they are in town or out of town. It is particularly true when crossing state lines, international boundaries, etc.

At a bare minimum, the other side should know where you are going, how you are getting there, and how you can be reached once you have arrived. Depending upon how much the parties trust each other, there could be more or less information that needs to be exchanged, like how often you will communicate with the children via phone, if there is to be Skyping, exactly what family members will be there, whether or not alcohol can be consumed, etc. Itineraries for flights should be exchanged, hotel address and phone number should be provided, and agreeing to send a text to confirm you arrived safely isn’t going to kill anyone.

3. Vacations are generally also a “good for the goose, good for the gander” situation. You would like to take a week’s vacation to the beach and you want to tell the other side that they can’t? Again, unless you are sharing custody with Charles Manson, they are getting the same vacation rights you are.

You will probably get the same vacation rights every year so long as you are sharing custody of your children. Some people need these to be memorialized and go into painstaking details in a formal agreement as to who gets to select their vacation dates first in odd years versus even years, how many days’ notice you must provide, how detailed your itinerary has to be, etc. But, again, you are going on vacation.

Quite frankly, in more than a decade of practice, I don’t know that I have ever seen a vacation request denied. Certainly not in a situation where someone has provided reasonable notice, has a reasonable plan and is willing to reasonably accommodate the concerns of the other side.

Noticing a theme about reasonableness here? It is the golden rule in custody arrangements between parties. Make reasonable requests, grant a reasonable permission, don’t pay $300 per hour to go have a judge decide whether or not your kid should get to go to Disney World. They probably already think that they do.

If you found this helpful, please like and share.

DIVORCE - Making Ours Mine - Division of Assets in Pennsylvania

One of the issues that comes up in all most every divorce and in many separations is how to divide property that parties acquired during their relationship.  Unfortunately, if this relationship was not a marriage, it can be very difficult to figure out how to distribute jointly titled vehicles, homes, and other assets and it may involve numerous separate actions to address these items. 

If the parties who are uncoupling were married, the Divorce Code sets forth well-established rules and guidelines for how to divide those assets that they acquired during the marriage through a process that we call “equitable distribution.”   Many clients I meet with are surprised to learn that, in Pennsylvania, assets are not divided equally.  While they may be, it is not an edict that everything is distributed 50/50.  The court engages in an analysis of numerous different factors to determine what division would be equitable under the circumstances and tries to “effectuate economic justice between the parties.”

What does that mean?

I recently came across a very good quote out of Miller v. Miller, 783 A.2d 832 (Pa. Super 2001) which describes it as follows:

“The methods by which divorcing parties effectuate economic justice are familiar and well settled.  The process of equitable distribution is an exercise in martialing, valuing and dividing the marital pot in a fair manner.  Not every piece of property can or should be split in half.  Sometimes one spouse is entitled to more property than is the other.  In some instances, the sale of property must occur so that each spouse can receive his/her rightful amount.  In other instances, a spouse may be allocated a specific item of property and the other spouse will receive cash or credit for his/her share in that same item.

In all of these scenarios, whether the property division is done by an agreement of the parties or a Court Order, the goal is the same: to take the assets of the marriage and divide them in such a way as to effectuate economic justice between the parties.” 

So, what have we learned from the above quote? 

Frankly, we learn a lot from this little quote. First off, there are a lot of ways to “skin the cat.”  Not only will no two people’s cases play out exactly the same (so just because it happened in your buddy’s divorce doesn’t mean it is going to happen in yours), but it may also be that no two assets in the marital estate are divided the same. 

The courts do not go through the list of marital assets and divide every single one 50/50. 

One asset may be offset against another, i.e. “you are keeping the house, so I am keeping the checking account.”

Or some assets may warrant being skewed more in favor of one party than the other.  So, your overall division of the marital estate might be 50/50 but somebody might get 70% of the fair market value of the property that they inherited two years before separation but retitled in joint names (see my prior post with regards to the “Transmutation of Assets”).  Since the other side didn’t really do anything to generate this asset, this skew in favor of the inheriting party may seem more “just” to the Court.

As stated in the above Miller quote, a big part of the equitable distribution process is to identify the assets and liabilities that are in the marital estate and determine their values.  If you don’t know all of the assets or their values, you may need to engage in discovery, which is a topic I am sure I will get around to discussing at some point.  Thereafter, the Court would move forward with dividing these assets in a manner that seeks to effectuate economic justice. 

It is also important to note that it is well within the authority of the Court to order you to sell off your belongings.  While they are generally not looking to have you fire sale every item you have acquired in the course of your marriage, it may be necessary for a piece of the marital estate to be sold.   Simply because one party may desire to retain an asset, if it is not economically feasible, it may be ordered to be sold by the Court, even over your objection.  

All of the above issues will depend upon the Court’s analysis of what we call the “equitable distribution factors” set forth in the Divorce Code. There are twelve different factors that the Court can take a look at to decide the fairest way to divide assets between the parties.  They may look at the length of marriage, the incomes of the parties, one party’s contributions to the marital estate as a homemaker, what separate assets either party might have beyond the marital estate, etc. 

The Court’s analysis of these factors as applied to the specific facts of each individual case dictate how the Court fashions its award for equitable distribution, which, as stated, may be an equal 50/50 division, but may not.  Again, like with all matters that fall into the Family Court, the determinations that are rendered are usually very fact specific and the change of one of the characteristics about a party or their marriage may have a significant impact on how the marital estate is most equitably divided.

Again, if you are contemplating divorce, for more particular guidance with regards to how your marital estate may be divided, you should consult with an attorney who can review the history of your marriage and the assets that comprise the marital estate to provide you with more specific advice unique to your situation.

If you found this article to be helpful, I ask that you please share it and “like” my page.  As always, if anyone has any questions or suggestions for follow up topics, please comment below. 

www.uncouplingpittsburgh.com

CHILD CUSTODY - But what if we can’t agree? Ways to resolve legal custody/co-parenting issues.

In light of the fact that the vast majority of parents share the right to make major decisions with regards to their children (as discussed in my last post), it is not uncommon for disputes to arise between them as to what is in the best interest of their child. There are several ways they can go about trying to resolve these issues:

1. Litigation: Right, wrong, or other, a traditional way to “resolve” these disputes has been to run to court. In Allegheny County, there is at least one judge hearing motions pretty much every day of the week—sometimes as many as three. A lot of what fills their dockets is people coming to court because they have not been able to make a decision regarding the upbringing of their child.

To the extent that anyone may be harboring delusions to the contrary, let me be clear: The judge does not care about your child’s soccer participation. They don’t care if they play, they don’t care where they play, and they don’t care how well they play. To the extent that you are paying an attorney hundreds of dollars per hour to go to court to try to convince the judge to care about those things, you are wasting your money.

Does this stop people from going to court about these issues? No, not at all. It is probably half of what the judges have to endure each day they hear motions. However, the court does not wish to micromanage the raising of your children or any of the other legal issues that may arise in the course of your uncoupling. I therefore advise people look into some of the alternatives below.

2. Mediation: As I discussed in a prior post, in mediation in PA each of the parties appear together with the mediator to try to work through issues that they have not been able to resolve between themselves. The focus of mediation can be as broad as all support, asset division and custody issues arising in a divorce, or it can be on an isolated issue, like where a child should go to school. A mediator helps guide the parties to a mutually agreed upon resolution and largely serves to help facilitate a dialogue between the parties to reach an understanding and compromise. What happens in mediation is not, however, binding between the parties and they will need to have a formal agreement drafted by attorneys to confirm any arrangements to which they agree.

3. Collaborative Law: As I have talked about previously, in collaborative law each of the parties hires a collaborative attorney and agrees that they will not pursue litigation at any point in time—otherwise they must remove themselves from the collaborative process and find new counsel. Depending upon the nature of the dispute between the parties, they may require the assistance of a collaborative coach to help facilitate their conversations and ultimate resolution. They may also employ a child specialist to provide input from the children involved or a financial expert if matters relative to money are in play. Again, the topics addressed can be quite broad, involving a wide range of issues attendant to uncoupling or more specific discrete issues. At the end of a collaborative process, with the assistance of their collaborative attorneys, parties will enter into a finalized agreement with regards to their collaborative agreement.

4. Co-parenting Counseling: Sometimes, if the parties are having difficulty reaching agreements with one another or being able to share in their co-parenting responsibilities, the court may refer them to co-parenting counseling. In this arena, the parties work through a therapeutic process with a counselor who has a focus on assisting them in improving their relationship with one another as they go about raising their child together. This can be very helpful for people just starting the uncoupling process, as many of these counselors provide insight to the parties’ communication style and where they have difficulty hearing each other and voicing concerns. Parties can be ordered by the court to co-parent counseling and this will often happen if you show up too many times asking the court to micromanage how you are raising your child.

5. Co-parenting Coordination: This was all the rage a few years ago. Parties who exhibited extreme difficulty in working through their co-parenting issues would be sent to a parenting coordinator, who would hear their minor custody disputes. (Usually this happened after parties tried to use the litigation route too often.) The co-parenting coordinator would have the authority to order the parties to do certain things. The parenting coordinator, in essence, acted like a mini-judge that would hear smaller disputes with regards to activities, exchange times, etc., but could not make major changes to the physical custody schedule or the parties’ legal custody arrangement. However, co-parenting coordination has fallen out of favor with the courts, and judges can no longer order parties to participate in the process. However, there is no prohibition on the parties jointly agreeing to enter into co-parenting coordination together and agreeing to be bound by what decisions the co-parenting coordinator might make if the parties are unable to reach an agreement. Similar to going to court, co-parenting coordination was more an avenue of last resort than a first choice, as needing a third party, be it a judge or a coordinator, to make decisions for you is an indication that there are significant communication problems between the parties.

6. The final and probably the best answer to all this is simply talking to each other. While you may need to speak with an attorney to hear what your rights are or speak with a counselor to understand better how your relationship with your co-parent affects you, the most cost effective, long term, and relatively simple answer is to figure out how to work with each other. Maybe you are better if you only communicate via emails, maybe it’s better if you only communicate via telephone, maybe you should try to minimize your communication as much as you can, but the bottom line here is you have to learn how to communicate with each other and the sooner you can get yourselves to a point where you don’t need third parties to help you do that, the better off you probably are.

As always, if you found this post helpful, please share and feel free to comment with questions or suggestions for future posts.

Thank you in advance for liking my page.

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!

CIVIL COLLABORATIVE LAW TRAINING

To those of you who have kept an eye on my various blogs over the last few months, I have mentioned my involvement with collaborative law.  

While many folks may be familiar with collaborative law only in the family law context, the principles of collaborative practice can be applied in any one of a number of legal contexts.

In fact, the local collaborative practice group, CLASP, has a civil law committee and they are presenting a civil practice focused, basic collaborative law training on March 17th and 18th. This will focus on the use of collaborative practice in the civil law context, which can include contract disputes, employment issues, resolution of estate claims, and many other non-family law related issues. 

This training counts as the basic training necessary for attorneys looking to join CLASP and can also provide existing CLASP members with further information regarding application of the collaborative process to other areas of law. 

For those who are not familiar with the collaborative process, in essence, all parties involved agree that they do not go to court.  Not only are they agreeing that they do not want to go to court, they actually specifically sign a contract saying they will not.  They hire specially trained attorneys who have agreed to adhere to collaborative guidelines in lieu of running to court over every little upset. 

These collaboratively trained attorneys appreciate and acknowledge the toll that litigation can take on people and the fact that many issues can be resolved more quickly and more efficiently through a cooperative exchange of information and an open dialogue. 

The collaborative attorneys and their clients are assisted in this dialogue by a collaborative coach, a trained mental health professional whose role it is to facilitate a dialogue between the parties, as well as their counsel, with the goal of reaching a resolution that is reasonable and acceptable to everyone involved.  

The agreement to stay out of court is taken so seriously that in the event the collaborative process falls apart, the parties are actually required to find new attorneys if they want to litigate their claims. As a result of this, most collaborative cases stay collaborative and ultimately resolve that way. 

Any attorneys who are interested in learning more about collaborative law should look into the upcoming civil training.  Not only is collaborative law a growing field of practice, but the two-day training provided is a very cost effective means of obtaining a year’s worth of CLE credits in just two days, pending approval.  Please feel free to review the information below,  visit CLASPLAW.ORG  and contact me or other CLASP members for more information about registering.

Two-Day Civil Collaborative Law Training

By: Marc O. Sheridan, Esquire

When:              March 17th & 18th, 

 Time:               Registration/Check-In is at 8:15  a.m.

Thursday and Friday morning. Light continental breakfast provided.

Training begins promptly at 8:30 a.m on Thursday and Friday and the day ends at 5:00 p.m.

Where:            One Mellon Center 500 Grant Street

Third Floor Conference Center Pittsburgh, PA 15219

Cost:               $500 Early Bird before 1/15/2016

$550 after 1/15/2016, $450 for CLASP Members

CLASP is pleased to be offering a Two-Day Civil Collaborative Law Training conducted by Marc O. Sheridan, Esquire, a practicing Litigator, Collaborative Attorney, Mediator  and Collaborative Trainer. For over fifteen years, Attorney Sheridan has represented clients in various employment and civil matters in the New York City area.  He is a member of the New York State   Bar Association ADR Section and Collaborative Practice Committee, the American Bar   Assoc.Dispute Resolution Section, the International Academy of Collaborative Professionals (IACP), and the Global Collaborative Law Council.

Fee Includes course materials, continental breakfast, lunch &  snack.

Pennsylvania CLE credits to be provided, pending  approval.

 Please note: registration will be limited and is available on a first come/first served   basis.

You can also register on-line at  www.clasplaw.org