Spartanburg Divorce Lawyer & Attorney : Stevens-MacPhail Law Firm : South Carolina Family Law Serving Columbia, Charleston, Greenville, Hilton Head Island

Several months ago, CBS' The Early Show took at look at "changes taking places in modern divorces." Their report focuses on the advantages offered by mediation as opposed to traditional litigation, and it includes three to five minute videos included on the following topics:

• Fight-Free Divorce
• Divorce Among Senior Couples
• Preventing A Divorce

If you are interested in these topics, it is worth spending a few minutes reviewing these videos.

Source:  "Putting An End To Divorce Wars" published at CBSNews.com.  Thanks to Kevin Hickey for his post on his blog about this article.

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What happens when parents cannot agree on issues pertaining to their children? In the past, this situation typically resulted in both parents hiring attorneys, going to Court, slugging it out, and ultimately having a Judge decide the issues for them. Fortunately, there is another option available today for parents facing this situation: utilize a parenting coordinator.

Parenting coordinators usually have backgrounds as mental-health professionals, lawyers or mediators, and they typically have completed a training certification course. Basically, these professionals attempt to establish rules or communication procedures to help parents work together more effectively, and I believe that they can be very helpful in that capacity. Some states can mandate the use of a parenting coordinator, though I am not aware of that ever being done in South Carolina.

Parenting coordinators usually analyze the parents’ communication styles and parenting techniques, and then they suggest ways to improve any deficient areas. In some cases, the coordinators will get input from the children to get their points of view. The goal of the parenting coordinator should be to give parents the skills to resolve disputes themselves, as they are really the best people to make decisions concerning their children.

Situations involving extremely high-conflict parents, domestic violence, substance abuse, or severe mental illness are probably not good candidates for involvement by parenting coordinators. Similarly, I believe that while it might make sense for parents to grant the coordinator the ability to decide “minor” issues should an impasse arise, they should not delegate more important decisions. For instance, I do not believe that parenting coordinators should make decisions that affect the rights of parents, such as custody modifications, relocation decisions, and the like.

Source:  "A Referee for Mom and Dad" by Rachel Emma Silverman, published in The Wall Street Journal.

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Gerald Williams of the Minnesota Divorce and Family Law blog posted the following article, which addresses the issue of settlements versus trials in family law cases.  Most experienced family law attorneys know that reaching an reasonable, amicable resolution is generally the best outcome in most cases, and this article provides some insight into why.  Here is Mr. Williams' article:

Why do some divorce and child custody cases settle out of court, and some cases have to go to trial?  There are many factors that determine whether a family law case will settle outside of court, the most important which involve the willingness of the parties to compromise, and the willingness of the attorneys for the parties to facilitate that compromise.

Preparing for and proceeding with a family court trial is a long, expensive process.  If the parties are close to reaching an agreement, but are unable to arrive at the final stipulated terms, both parties are likely to spend more on the expense of going to trial than they would if they EACH accepted the other party's terms.

Conversely, if the parties are not close to reaching an agreement, there most likely is a principal issue that needs to be addressed by the family court.  Examples are whether there should be any spousal maintenance at all; whether an antenuptial agreement is void or not; or whether a third party is entitled to visitation with a minor child.

In the first example, the AMOUNT of spousal maintenance might be resolved by compromise, but only if both parties presume that there will be spousal maintenance.  Otherwise, the dispute about whether there should be spousal maintenance at all may need to be decided by the court.  In the second example, how to apply the terms of an antenuptial agreement can be negotiated and compromised.  But if there is a fundamental question about whether the antenuptial agreement is even valid or not, the family court may need to render a decision.  In the third example, discussions about a visitation schedule cannot take place if there is disagreement about who is entitled to have the court-ordered right to have the subject minor child in their care in the first place.

One key advantage to a settlement out of court is the fact that the parties have the final say in the terms of their divorce or child custody dispute, rather than the court.  In all likelihood, the parties will be assenting to a conclusion that is not as favorable as their best possible result in court.  But it may be worth avoiding the risk of going to court and not getting the best possible result.

Source:  "Settlement Versus Trial" by Gerald Williams, published at his Minnesota Divorce and Family Law blog.

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Many cases can get settled simply by getting the parties together to talk.  This type of informal meeting is called a "settlement conference."  The following steps can help you prepare for a settlement conference and improve the chances of its success:

1. Identify the issues in your case.
2. Understand how the law affects your case.
3. Know the estimated costs of trial.
4. Remain open to unique opportunities.
5. Keep a few secrets.   
6. Be determined.   
7. Be ready for a little give and take.
8. Be patient.
9. Get it in writing.

You can read much more about each of these steps by clicking here.

Source:  "Settlement Conference Success" by Helene Taylor, published at The Modern Woman's Divorce Guide.

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Too often in child custody cases, children are asked the following questions or subjected to these comments:

• "Who do you love more? 'Mommy' or 'Daddy?'"
• "Was mom's boyfriend there?"
• "Your father is always late on payments."

Children should never be put in the position of having to deal with "adult" issues.  Just because their parents can't get along, their childhood should not be ruined by such inappropriate conduct. 

Some judges require feuding parents to attend parenting classes to attempt to resolve (or sometimes prevent) such problems.  These classes vary widely in their format, but they generally aim to teach parents how to deal with each other while protecting their children and also to make parents realize how their actions can affect their children.

Even celebrities can benefit from these classes, as evidenced by the ugly child custody battle between Chicago Bear Brian Urlacher and his former lover.  Both parents in that case were ordered to attend a four-hour parenting class to help deal with the problems in their case.

Source:  "Urlacher Custody Judge: Take a Class" by Rummana Hussain, published at The Herald News.

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A few months ago, I became trained as a collaborative lawyer.  This process involves  handling cases differently than the traditional litigation approach, and it can work well in certain family law cases.  The collaborative law process is well explained in the following article by Maury D. Beaulier:

Collaborative law is a new way to resolve disputes by removing the disputed matter from the litigious court room setting and treating the process as a way to "troubleshoot and problem solve" rather than to fight and win.

As part of the collaborative law method, both parties retain separate attorneys whose job it is to help them settle the dispute. No one may go to court. If that should occur, the collaborative law process terminates and both attorneys are disqualified from any further involvement in the case.

Each party in the Collaborative law process signs a contractual agreement which include the following terms:

• Disclosure of Documents.  Each party agrees to honestly and openly disclose all documents and information relating to the issues. Neither spouse may take advantage of a miscalculation or an inadvertent mistake. Instead, such errors are identified and corrected.
• Respect.  Each party agrees to act respectfully and avoid disparaging or vilifying any of the participants.
• Insulating Children.  As part of the process all participants agree to insulate the children from the proceeding and to act ins such a way as to minimize the impact of the divorce on them.
• Sharing Experts.  The parties agree to implement outside experts where necessary in a cooperative fashion and share the costs related to those experts. (eg. real estate appraisers, business appraisers, parenting consultants, vocational evaluators, or accountants)
• "Win-Win" Solutions.  The primary goal of the process is to work toward an amicable solution and to create a "win-win" situation for all.
• No Court.  Neither party may seek or threaten court action to resolve disputes. If the parties decide to go to court, the attorneys must withdraw and the process begins anew in the court system.

One of the biggest differences in the Collaborative law process is that it recognizes that emotional issues exist that cannot be addressed by the legal system. How often have you heard stories of divorcing parties spending thousands of dollars in legal fees to argue about pets or furniture that has limited monetary value.

Generally speaking, the parties in such cases are not arguing about dogs, cats, or furniture. Instead, they are reacting to psychological pains that they experiencing These emotional issues that are ignored in the Court process. By contrast, the collaborative law process specifically addresses these issues by bringing them to the forefront and using professionals as part of team approach to find solutions.

A team of professionals is assembled to help the parties understand and resolve their disputes i many different contexts. The disputes maybe legal disputes or emotional and include: mental health counselors/ coaches for each party, neutral financial advisors, accountants, parenting specialists, child specialists, vocational experts, and appraisers, if needed.

A child specialist may play a very important role in the collaborative process. So often, children become the unintended victims in divorce proceedings. They internalize the conflict and often blame themselves for the break up of their family. The child specialist works with children of divorcing parents. It is their job to assist the children in understanding that the parental dispute is not their fault and to teach them how to cope and communicate with their parents. In this way, the children have a voice in the proceedings and become part of the team process.

Financial professionals may be used to help define values of assets. In the litigious court process often redundant appraisals are performed by one expert for each party. The end result is a duplication of services at greater cost and with increased distrust. this often results in an expensive war of experts at trial where each expert testifies regarding their different valuations. In the collaborative process, the parties choose a neutral appraiser that is not associated with either party. With a trust relationship established, the parties agree on some division of cost and agree to be bound by the appraised value.

Most Cases Settle. The Statistics state that more than 90% of all divorce cases are resolved without a trial. In the Court system that resolution often comes more than a year after the divorce was commenced and after many hurtful statements have been made part of the public record in the form of affidavits and motions. Doesn't it make more sense to seek that resolution before the bridges are burned and the missiles are launched in a courtroom? Certainly, collaborative law will not work in every case. After all, it takes two to tango and it takes two willing participants to effectively use the collaborative law process. However, in the cases where collaborative law has been used, even if reluctantly, there have been more rapid settlements at a fraction of the normal cost associated with divorce.

Source:  "Collaborative Law: Divorce without War" by Maury D. Beaulier, published at DivorceSource.  Thanks to Grant D. Griffiths of the Kansas Family & Divorce Lawyer blog for his post on this subject.

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