Family Law FAQ
What is Mediation?
Mediation is a way to resolve disputes with the help of a professional experienced in law, communication processes and legal procedures. Parties in conflict usually do not know where to begin in sorting out differences. When they sit down with a mediator who guides and supports them through the process, they save time and expense of attorneys paid to negotiate and communicate for them. Depending on the type of case, attorneys may or may not attend the mediation session
What is Collaborative Law?
Collaborative law is a process in which clients and attorneys cooperate in positive negotiation towards resolving family issues. The clients and the attorneys commit to keeping their dispute out of court. The parties and the attorneys sign a contract that they will not go to court. This removes the threat of litigation and court involvement from the negotiation process. The negotiations can then focus on what is important to each party and what is best for the family, as opposed to what one person might get in court.
What are the benefits of the Collaborative Process?
- Unlike traditional, court-based litigation, where courtrooms are open to the public, and filed documents are posted on the internet, the collaborative process is private and confidential. No documents are prepared or filed with the court without agreement of the parties. After resolution of the issues, attorneys file an uncontested divorce action and the forms required to obtain a final divorce decree.
- Meetings are arranged according to the individuals’ schedules, not the court’s.
- The collaborative process fosters respect among the participants and helps spouses communicate in an open and secure environment.
- The parties and attorneys participate in good faith in the negotiation process; everyone involved works together to make a full and fair disclosure of all facts and issues involved in the matter.
- The parties and attorneys commit to constructive and respectful communication in four-way conferences to exchange ideas and reach settlement.
- The collaborative approach can be more efficient and creative in that it is not bound by court schedules, dockets or the confines of the law.
- The collaborative approach considers the interests of the individuals and their families in arriving at mutually acceptable resolutions.
- The process can enable spouses to co-exist after their marriage is dissolved and can help them to communicate after their divorce. To be able to do so is invaluable, particularly when the parties have children, no matter what their ages.
What do you do if there are complex matters that need to be dealt with in the Collaborative Process like the value of a business?
If necessary, the parties retain different experts to assist them in this process. The parties may use experts such as financial planners and advisors, therapists and child psychologists. The experts, parties and attorneys work as a team to generate innovative solutions that benefit the family.
What happens if we cannot reach an agreement in the Collaborative Process?
If either party ends the process without resolution and proceeds to court, both attorneys must withdraw and both parties must retain different counsel to take the case to court.
How is Child Support determined?
Child support is typically based on guidelines which consider the net income of each party and the number of children in the family. The support guidelines also contemplate additional costs such as health insurance premiums, child care expenses, and private school tuition. Either party can request a modification of child support if there is a change in circumstances, such as a change in either party’s income, or a change in the custody arrangements. Child support may be terminated when a child reaches the age of 18 or graduates from high school, whichever occurs later, unless the child has special needs and is unable to support him or herself.
Are you stuck with the guideline calculation for child support even if you have special expenses?
Deviations from the guidelines may be allowed for special circumstances, but if you are looking for a more personally designed child support agreement, you can seek my legal advice in collaborative family law. In these situations, parties are not bound by set formulas, and we try to think outside the box to come up with creative solutions to the financial dilemma that is created when trying to divide family income.
What is Generations?
The Generations Program involves an education seminar and a mediation session. At the education session, psychologists and mediators discuss the importance of parents developing a working relationship that focuses on meeting the needs of your children and co-parenting in separate households. Children ages 5-15 also attend an education seminar with other children going thought a custody dispute. The parents then attend a mediation session where they try to come to a custody agreement or parenting plan with the assistance of a court-appointed mediator. If the parties do not resolve the issues, the next step is a conciliation with a Generations Domestic Relations Officer, at this point a party may bring his or her attorney. This series of steps is designed to foster cooperation and settlement.
How are custody schedules determined?
Everything about custody is determined on a best interest of the child standard. Therefore, when it comes to schedules it is important to look at not only the parents’ schedules, but also to think about the child’s schedule and developmental needs. This is another area where it is crucial to be creative in developing possible solutions and where the collaborative process would be effective.
When can a Grandparent get visitation or partial custody of a grandchild?
If the parents of the child have been separated for more than 6 months or upon the death of one of the parents, a grandparent may pursue a partial custody complaint.
When can a Grandparent ask for full custody of a grandchild?
If grandparents have served as the parent to their grandchildren for a period of 12 months they would have standing to file for full custody. If a grandparent feels a child is in danger they can also petition the court for standing to pursue a custody action for full custody.
Divorce and Property Division
What happens in a Divorce?
Divorce is the final termination of a marital union, canceling the legal duties and responsibilities of marriage. The legal process for divorce may also involve issues of spousal support, child custody, child support, distribution of property and division of debt. In most cases, it is necessary to resolve issues of property and debt distribution before a divorce decree is entered. Division of property and debt may not necessarily be an equal division. In splitting assets and debts that were accrued during the marriage, the court may consider factors such as the length of the marriage, the earnings and earning capacities of the parties, the ages and health conditions of the parties, and the contributions each party has made to the marriage.
What are the factors that the court considers when deciding how to divide assets and liabilities?
There are 11 factors the court considers, the following are among the most relevant and often scrutinized factors in determining the distribution of assets and liabilities:
- Age, health, income, employability, needs of each spouse;
- Length of the marriage;
- Contributions to the marriage, including the contribution of a homemaker, and the contribution of any party to the other’s education, training or increased earning power;
- Whether the party will be serving as a primary parent to dependent children;
- The expense of sale, or tax consequences associated with assets;
- Other assets of the parties
- The economic circumstances of each party; and,
- The standard of living of the parties during the marriage;
There are also issues that go along with distributing assets, such as refinancing any mortgages, transferring retirement assets, and other possible issues that require consideration in the decision process.
What do we do if we already know what we want to do?
It is possible for spouses or partners to come up with their own framework for division of assets and debts, financial arrangements, and parenting plans. I can create the necessary legal documents to effectuate the plans that you envision. I can also work with parties in mediation when they may have figured out most matters on their own buy may need some guidance in finalizing their negotiations.