Who are the Parties Involved in a Collaborative Law Divorce?

Divorce

Depending upon the situation, there may be several different parties involved in a collaborative law divorce. Each individual’s participation in the collaborative session is geared towards helping the parties reach a fair agreement in an efficient and cost-effective manner.

Collaborative Lawyer

Even though one of the main goals of collaborative law is to avoid going to court, the settlement the parties reach at the end of a collaborative session remains a binding legal agreement. Accordingly, it is important to have an experienced collaborative attorney to assist the parties on all matters of law, including spousal support, child support, and child custody, as well as financial settlements and property distribution. The couple and their collaborative attorneys commit to share necessary information to work towards an agreement that best represents the needs and desires of each party.

Divorce Coach

In Massachusetts, typically one neutral coach is used in a collaborative law divorce case. A divorce coach is a licensed mental health professional that brings specialized skills to the collaborative session. The divorce coach’s role is to help the parties prioritize their concerns and needs, deal with their feelings and differences in healthy ways, stay focused on their goals by neutralizing or minimizing destructive emotions, communicate effectively with each other, with their lawyers, and with their children, and provide them with tools for positive co-parenting going forward.

Financial Specialist

The guidance of a financial specialist in a collaborative law case will help protect each party’s financial interest. A financial specialist is someone with one or more financial certifications, who acts as a neutral expert in a collaborative law case. The financial specialist reviews each party’s assets and incomes, as well as debts and liabilities. A financial specialist will also analyze how different scenarios for property division, child support, and alimony would play out in the future. The financial specialist then assists the parties in analyzing and evaluating viable financial options for the parties’ futures.

Child Specialist

A traditional divorce is especially difficult on children. This is partly due to the fact that children are not well equipped to understand or express their feelings, and communication with their parents during a divorce becomes difficult. In a collaborative practice, however, the welfare of any children takes top priority. A person skilled in understanding children’s wants and needs, known as a child specialist, will meet with children privately, helping them express their feelings and concerns about the divorce. The child specialist encourages children to think creatively about the future. The child specialist then relays the children’s feelings, concerns, and hopes to the collaborative team. By utilizing a child specialist, the team is better equipped to plan for the children’s lives after the agreement is finalized.

Contact an Experienced Massachusetts Collaborative Law Attorney

All parties involved in a collaborative law case share a common goal: to work with the parties in a results-focused environment, in order to reach an agreement without having to enter the traditional adversarial court system. If you or someone you know is interested in this results-oriented approach to resolving disputes, contact the Law Office of Martin Murphy or call (781) 285-8989 today.

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Divorce Celebrations – Harmless Fun or Potentially Damaging?

Head in Hands

The end of a marriage often brings mixed emotions: disappointment that the dream of happily ever after has ended; relief to be moving on from a relationship that was fraught with tension, anger, and acrimony; and if the couple had children, sadness that time spent with the children will be split in a custody agreement.

But for some members of the newly divorced crowd, when “‘til death do us part” ends before the couple’s actual death, it’s not a time to mourn – it’s a time to celebrate.

Divorce Parties

Divorce parties are alive and well, judging from the most recent spate of photos depicting divorce cakes collected on The Huffington Post’s divorce page. Many are created with the same elaborate detail that went into choosing the wedding cake, and depict everything from the bride pushing the groom in a freefall off the top of a three-tiered cake, to beheaded husbands, to a husband happily driving off in a sports car, his bride looking dejected as he zooms off, leaving her behind in a pool of shattered dreams and frosting. There are even party planners who focus solely on throwing celebration bashes for the newly single.

But are they really a good idea?

Negative Impact on the Children

It’s true that some couples are better off divorced. For those living with an emotionally or physically abusive spouse, a serial philanderer or one who continually squanders the family finances, the relief felt at the marriage’s demise is understandable. And some couples may want to formally close that chapter of their life as they turn the page to the new one. But depending on how nasty the celebration is (cheering a husband on as he trades in his wife “for a classier model” is, at the very least, incredibly insensitive), it could negatively impact the children.

Most children of divorce – especially the very young – often feel that the divorce was their fault, despite their parents’ repeated assurances that it was not. Recent studies show that children of divorce reported having a less secure relationship with their parents, and grow up to have anxiety in their own romantic relationships.

A child who witnesses their parent openly celebrating the end of their union – especially in some of the nastier renditions, such as a husband burying his wife, or a wife celebrating that she got everything while her husband is relegated to living in a tent – could cause even greater feelings of confusion.

Negative Impact on Custody

Divorce celebrations may also negatively impact the outcome of custody proceedings.

There are a number of factors that go into a judge’s determination of which parent should be awarded primary physical custody of the children. The courts often take into consideration the ability of each parent to support a loving, ongoing relationship with the other parent, and the mental health of each parent. The non-celebratory spouse could use the outward display of celebration, especially those with an undercurrent of anger and injury, as proof that the other parent cannot meet these two criteria, and therefore should not be awarded primary custody.

If you do feel the need to celebrate the end of your divorce and usher in this new chapter of your life, talk to your Massachusetts family law attorney first to discuss whether such a celebration could negatively impact your divorce or child custody proceedings, either now or in the future.

For help on these matters, contact the Law Office of Martin Murphy at (781) 285-8989 to speak with an experienced collaborative law attorney today.
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Collaborative Law and Prenuptial Agreements

Prenuptial Agreement

The past few years have seen an increase in the number of prenuptial agreements. A prenup is a contract signed by two people who are about to marry or enter into a civil union. A prenup can include a variety of different terms, but most contain provisions for division of property and spousal support in the event of a divorce, death, or separation of the parties.

Prenuptial Agreements in Massachusetts

In Massachusetts, there are several requirements for a valid prenuptial agreement:

·      The agreement must be fair and reasonable to both parties when it is created;

·      Each party must make a full and fair disclosure of their financial status to the other party;

·      The agreement must specifically set forth the waiver of certain marital rights (e.g., the right to a court-determined alimony provision and property settlement);

·      Each party must be represented by their own attorney;

·      There must be sufficient time for each party to consider the effects of the agreement;

·      The agreement must be conscionable at the time of enforcement (i.e. the court considers whether circumstances occurring during the marriage would leave one spouse without sufficient property, maintenance, or employment to support themselves).

The Traditional Approach

Traditionally, prenups are adversarial in nature. The attorney for the party initiating the prenup believes that it is his or her duty to protect the assets of their client from the other party, instead of focusing on the joint goals of both parties. An article likens the traditional approach to “drafting a partnership agreement that contains only the ‘exit’ provisions in the event of the dissolution of the partnership.” Furthermore, prenuptial agreements often make people uncomfortable because, by their nature, the agreements include provisions that limit or eliminate altogether certain rights and assets that would belong to the other party at the end of the marriage.

Benefits of a Collaborative Approach

Collaborative law, on the other hand, offers a much simpler and more manageable approach to drafting prenuptial agreements. Under the collaborative approach, the actual agreement is drafted only after the parties have discussed what issues and concerns are most important to them. Each party has the benefit of the advice and assistance of their own collaborative attorney throughout the entire meeting. The attorneys have specialized training in working together to arrive at the best solution for both parties. By participating in these collaborative discussions, the parties are in the best position to plan for foreseeable events during their future together, such as buying a home, having children, establishing careers, and planning for the family’s protection in the event of death of one of the spouses. The entire process thus becomes more about planning for the marriage itself, instead of planning for the possible event of a divorce.

Contact an Experienced Massachusetts Collaborative Law Attorney

If you and your significant other are considering entering into a prenuptial agreement, there are many benefits to using collaborative law. If you are interested in a results-oriented approach without having to enter the traditional adversarial legal system, then collaborative law may be the best approach for you. Contact the Law Office of Martin Murphy at (781) 285-8989 to speak with an experienced collaborative law attorney today.

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Divorce Difficulties for Same-Sex Couples

Rainbow Flag

On June 26, 2013, the US Supreme Court struck down a key portion of the Defense of Marriage Act (DOMA), which defined marriage as between a man and a woman for the purposes of federal law. Although the primary effect of the Court’s ruling allowed same-sex couples to receive the same federal benefits available to heterosexual couples upon marriage, the ruling extends to cover same-sex couples going through the divorce process. However, even with this latest DOMA decision, there are still many legal hurdles that same-sex couples may face when seeking a divorce in Massachusetts.

Impact on Massachusetts Divorce

Since same-sex marriage has been legal in Massachusetts since 2004, all divorces in Massachusetts have been treated the same, whether they involve same-sex or heterosexual couples. This gives same-sex couples in Massachusetts an advantage over others, because most states will not render a divorce decree if the state does not find that the couple was legally married from the beginning.

However, there are several issues that may make same-sex divorce problematic. For example, the length of the relationship is factored into most divorce settlements. But what happens if a same-sex couple has been living together in Massachusetts for 10 or 20 years before same-sex marriage became legal? Should the length of the relationship be considered the length of time the couple was together before the law was passed, or the shorter length of their “legal” marriage?

Furthermore, same-sex couples may face extra costs when attempting to seek a traditional divorce. For example, since same-sex divorce is still a relatively new area of the law, a court may seek additional briefs from attorneys of couples trying to get divorced because they want to ensure they are taking the right steps. This results in increased legal fees for the client. Additionally, same-sex couples are more likely to have their divorce applications rejected, which can lead to appeals and, in turn, more legal fees.

Lastly, many same-sex couples face additional child custody costs, even in states like Massachusetts where same-sex marriage is recognized. Since either one or both of the parents are not the biological parent of the child, an entirely new set of problems may arise with respect to whether or not a partner has the legal standing to argue for custody of the child.

How Collaborative Law Can Help

Many of these issues can be addressed in the collaborative process, which is well suited for people with unique issues and problems that are not addressed in traditional courts of law. Collaborative law allows parties to reach an agreement without ever having to enter the traditional adversarial legal system. This will result in considerable financial savings for the parties. Furthermore, the collaborative law process provides a better environment to make decisions concerning the custody of children because it provides an opportunity to fully explore the best interests of the child, rather than having the outcome determined solely by a judge or the attorneys. An experienced collaborative divorce attorney can help you avoid the legal pitfalls that may occur when seeking a divorce. Contact the Law Office of Martin Murphy at (781) 285-8989 to learn how collaborative law can help you navigate the divorce process.

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Mediating Alimony in Divorce Cases

Under certain circumstances in Massachusetts, an ex-spouse can be required to make regular payments to their former partner. This is best known as alimony, or “maintenance.”

divorce mediationMediation can be useful for resolving alimony issues, both in the initial divorce, or if one or both parties seek to modify the maintenance obligation. Because the issue of alimony is financial in nature, compromise may be possible, and mediation can avoid expending substantial sums on litigation. Many studies have found that mediation enables the parties to reach a settlement more expeditiously than litigation, save money by avoiding unnecessary litigation costs, and increase compliance with agreements.

Mediation Benefits

Mediation is voluntary, and so the parties must both agree on the reach of the ultimate agreement before it takes effect. This is beneficial, because parties are more likely to comply with alimony obligations if they have agreed to the amounts at issue. Also, the parties may be more likely to believe that an agreement is fair if they enter into it willingly.

With mediation, the parties work with a mediator, who is a neutral third party, to reach a mutually acceptable agreement. The mediator should be knowledgeable about the provisions of Massachusetts divorce law, including those provisions involving the alimony. Under state law, the court may grant either temporary or permanent maintenance for either a husband or a wife, and for the length of time that the court deems just, without any consideration of marital misconduct, after considering all relevant factors. Some of the common considerations when deciding on alimony include:

  • Each party’s income and property, including non-marital property assigned to the party seeking maintenance;
  • Each party’s needs;
  • Each party’s present and future earning capacity;
  • Whether a party lost present or future earning capacity due to the time devoted to care giving responsibilities, or having foregone or deferred education, training, employment, or other career opportunities because of the marriage;
  • The time needed to enable a party seeking maintenance to acquire education, training, and employment;
  • Whether caregiving responsibilities for a child make it appropriate for a parent to stay home and not seek employment;
  • The parties’ standard of living during the marriage;
  • The length of the marriage;
  • The parties’ ages and their physical and emotional health;
  • The tax consequences of the parties’ property division;
  • The contributions, if any, to the education or career or career potential of the other spouse by the spouse seeking maintenance;
  • Any valid agreement of the parties; and
  • Any other factor the court expressly finds just and equitable.

Because the terms of the marital settlement agreement, apart from obligations regarding children, are binding on the parties, unless the court determines that the agreement is unconscionable, it is useful to obtain independent legal advice before signing the ultimate agreement. Further, the parties will need to make truthful and full disclosure of their income and assets, as providing false information and failing to disclose assets can be grounds for finding that the marital agreement is unconscionable.

If you are divorcing in Massachusetts and could benefit from mediation, please take a moment to contact our family law firm at the Law Office of Martin Murphy.

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