Thursday, February 25, 2010

5 Tips -- If You Think it Will be Amicable

Many people contact me and say they want to have an amicable divorce or child support or visitation modification agreement. They understand the benefits that come from avoiding the negativity that often accompanies litigation. They don't want unnecessary work done and want to hold down the financial cost. Truth be told, they would probably prefer to have just one attorney represent both parties, but I always explain that can't be done. (It would be a conflict of interest for the attorney and it would violate our disciplinary rules.)

Generally, the best way to have an amicable legal proceeding is to use Collaborative Law. That process keeps the parties out of court, provides the means for thoughtful and creative decision-making and utilizes the tools necessary to accomplish the objectives of the parties. Each party would have his/her own attorney (trained in Collaborative Law), but the attorneys are focused on reaching an agreement that meets the needs of both parties. The attorneys are not concerned with following all the traditional steps of discovery, pretrial motions and hearings, depositions, etc. that are expensive and often are used to just wear down one of the parties. The Collaborative process involves gathering information informally, but using experts to help evaluate it, and then going through a brainstorming process that is effective in developing options and allowing the parties to come to agreements on their best outcomes.

Unfortunately, Collaborative Law isn't always an option. The most common reason, for now, is that one of the attorneys is not trained in Collaborative Law. Sometimes, one of the parties isn't convinced that Collaborative is the way to go. Whatever the reason, the parties in a family law matter sometimes want an amicable process, but don't utilize Collaborative Law. For that situation, I have the following five tips to help them work together peacefully and effectively.

1. Be prepared by gathering needed information. If this is a divorce, make copies of the essential financial records. I don't suggest that you grab and hold all the financial records. That would be taken as a sign of an uncooperative attitude, even if you really intended to share the information. In non-divorce cases, there will be other information needed, such as income and expense records, school records, health records, etc. It will save time later if you gather up the needed information early on.

2. Choose your attorney carefully. You should probably explain what you want to do and make sure your lawyer is comfortable with that approach. Some lawyers insist on following the same game plan for every case, even if you don't want to take certain steps. If you don't feel like the attorney will do what you want done, then talk to other attorneys. There are plenty of good attorneys and you should only hire one who fits your needs.

3. Expect difficulties. Remember that even if both parties say they want an amicable case, there will still be disagreements. There can be amicable disagreements that can be resolved when there are attorneys (and maybe other professionals) who are skilled negotiators. What you want to avoid is working with someone whose answer to conflict is, "If they won't do what we want, we'll just take it to court and let the judge decide." That's not amicable and that's probably not what either party is looking for. There are plenty of ways of resolving difficult questions without going to court, if your attorney is willing to work on it.

4. Be willing to accept helpful suggestions from your attorney. I have had people come in and tell me that they have everything worked out and they just want me to prepare a document for them. I can do that, but I feel compelled to point out problems and potential issues whenever I spot them. Attorneys will make suggestions for slight wording changes that can clarify an order and help avoid confusion and conflict later. Attorneys can sometimes point out potential tax or financial issues and help you save money and avoid problems. Attorneys often know of ways to do things to more easily accomplish what you want done. You should listen to your attorney and be open to considering implementing his/her suggestions.

5. Don't let the attorneys pressure you into using the standard ways of doing things unless you completely agree. This is the corollary to point #4. You need to listen to the attorneys, but sometimes you should disagree. Doing something just because it's the standard way of doing something is not good enough. The attorney should be able to explain better reasons or benefits for any proposed changes.

If you follow these five tips, you should be able to work out solutions amicably in family law matters. Keep in mind the possibility of using Collaborative Law to get the best results.

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