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Bennett & Associates Memorandum

 

To:     Interested Members of the Collaborative Family Law Affiliates

From:     Elizabeth L. Bennett, Esquire

Topic:    Setting Standards for Collaborative Practice

Date:     3/13/08

 

It is my belief that it would be helpful to have a protocol for handling collaborative cases and for the purpose of starting debate in that area I have set forth my thoughts.  They are as follows:

I. Time Line for the Collaborative Process.

Meeting 1.   Introduce the collaborative process, read and sign agreement, and refer parties to a co-parenting counselor.

Meeting 2.  The co-parenting counselor can help the parties tell the children about the divorce and set a temporary custody schedule (which can be a basis for the temporary support amounts).

Meeting 3.  Temporary support should be set immediately and an agreement should be executed so there is tax deductibility and understanding as to the tax filing arrangements.  Simultaneously a temporary custody arrangement should be put in place.

Meeting 4.   (a) Preliminarily, without prejudice, distribution and characterization of some of the assets should be made, as well as responsibility for credit card and other marital debt.  (b) Husband's checking and income accounts and Wife's checking and income accounts should be identified and/or established.  (c) Asset accounts should, per the collaborative agreement, be frozen and date of separation values established.  (d) If separate returns are to be filed, assets which will obviously be in one party's name should be paid for by that party.  (e) A discovery list should be developed.  (f) Decisions should be made on mutual experts where possible and on identification of appraiser(s) for houses and businesses, etc. (f) A to-do list should be created for each party including such items as separating automobile insurance, and finding out the cost of COBRA.

Meeting 5.  The co-parenting counselor should advise the parents on issues relating to housing, education, etc., which will help them with more advanced decision making.

Meeting 6.  A preliminary distribution should be set up and numbers based on the discovery results should start to be plugged in.

Meeting 7.  With a financial planner, the parties should evaluate the long-term consequences of the proposed scenarios under consideration and develop alternatives if they are dissatisfied or have questions about their future.

Meeting 8.  All numbers should be crunched and a final settlement should be negotiated.

Meeting 9.  Documents should be prepared and signed.  The final settlement should include finalized support and alimony figures, a permanent custody arrangement, a complete and comprehensive distribution of assets and an arrangement which, when executed, provides for a total separation of the parties economically and physically.

Divorcing couples can always choose to speak to each other and maintain good relations.  Lawyers are the ones who can give them the gift of complete separation if that is what one or both of them want.  If complete separation is not accomplished at this time, then parties are burdened by future further expense and frustration in disentangling, and the collaborative professionals have not done their job.

Note: Pending the finalization of the Agreement, all arrangements for payments for special items like repairs and marketing for the house, payments of extraordinary marital debts, etc., should be considered as being incurred without prejudice. The merit of making these events "without prejudice" means that they can be accomplished without the pressure or implications of their significance in light of a final settlement.  Steps taken with reference to those issues thus will not be taken as leverage by one or the other in light of the final settlement.  Also, such an open-ended arrangement will leave greater room for creativity in the final resolution of the case.  Nevertheless, however, there must be a clear understanding as to what is income and what is an asset.

II. Discovery.

The collaborative process presumes that there is full and complete disclosure.  In this respect it is distinct from mediation practice as it has evolved and is frequently practiced.  Thus, if a party refuses to disclose assets, that would be a breach of the collaborative contract and reason to shut the process down.  In order to make sure that discovery will be completed, the attorneys have to present a unified front and make it clear that they are going to require primary documentation and/or releases and authorizations to receive primary documentation, as well as the following individual reports:  credit reports for both parties, tax returns for the previous three to five years, annual employee benefit reports from employers, letters from employers as to letters of grants of options, W-2 forms which will reveal deferred top-hat compensation, original monthly bank account statements, if there is a question as to the transfer and/or receipt of funds, retirement and medical plan documents.

If a neutral financial person is utilized, he/she should be given releases and authorizations to receive primary documentation him/herself and should supply copies to both attorneys as a courtesy so that they may follow the work that the neutral financial accountant is doing.  Providing a notebook for both parties and attorneys is a good idea if possible.

III. Oath of the Collaboratively Divorcing Spouse.

1.  I will abide by the terms of the Collaborative Agreement.

2.  The best interests of our child(ren) come before all others.

3.  I will provide promptly all information and documents required, or authorizations and releases to obtain same.

4.  I will agree to joint statements and joint signatures for bank or other accounts being frozen until final distribution.

5.  I will use my therapist and friends, not my lawyer or the collaborative process, to vent bad feelings about my spouse.

 

IV. Conduct of Counsel.

Although we are advocates for our clients, that is, we argue their positions, help them analyze their cases, make points for them, support them psychologically, etc., we also have to be the police for the collaborative process.  That means that both counsel have to keep the collaborative process in mind.  The most important part of that activity is to stay conscious of the tendency to replicate one's client's anxieties, aggressions, etc.  Attorneys must distinguish between making an argument on behalf of a client's position from trying to persuade the other side as to the client's virtues and the opposing party's sins.  Discussing always the importance of openness and transparency, the practical tasks at hand, and the need to think about the necessity of moving the case forward inexpensively with a comprehensive businesslike solution for the sake of the family, is what is most important. The lawyers have to learn to tell their clients that the collaborative process will require them to reveal everything.  Moreover, there should never be a hesitation on the attorney's part about freezing accounts, providing duplicate account statements, or demanding other measures which will preclude dissipation of marital assets in the collaborative agreement.

Most cases have moments where four way meetings may seem impossible.  Sometimes clients need a cooling off period.  We should not forget that the parties who are probably the most collaborative settle their cases on their own and may not even try to use the collaborative process because they have already resolved matters themselves.  Other clients simply go to lawyers through the traditional process but get things done without more than one or two hearings.

It is this author's belief that people often pick mediation and collaboration because they themselves are somewhat out of control with reference to their own aggression and ability to resolve conflict.  Practitioners need to be alert for such individuals.  If you think you may have a case involving borderline personalties or intensely manipulative individuals, it is good idea to put their feet to the fire at once, requiring immediate full disclosure and a very firm statement as to what the process requires.  It is far better to implode the process at the beginning than at the end. It is a corruption and denigration of the ideals of the collaborative process to carry it on if it is not working.

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I conveniently represent clients in the Bucks, Chester, Delaware, Montgomery, and Philadelphia Counties, the towns of Wayne, Radnor, Philadelphia, King of Prussia, Paoli, Devon, Berwyn, Newtown Square, Villanova, Bryn Mawr, Haverford, Ardmore, Lower Merion, Media, Wallingford, and Swarthmore, and throughout Pennsylvania.

 

© 2015 by Elizabeth L. Bennett, Esquire. All rights reserved.

 

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