What is Collaborative Law or Collaborative Practice, and How is it Different from Traditional Mediation?

Collaborative Law, or Collaborative Practice, is a method of alternate dispute resolution using a multi-disciplinary team approach to resolve a legal issue. The Collaborative Practice model can be applied to any area of civil law, but this discussion will focus on its application to divorce.

The Collaborative Practice Team model employed in my practice comprises of two attorneys, one for each party, a neutral Facilitator, also called a Coach, and where warranted, also a Financial Neutral. The overall goal of the Team is to help the parties negotiate their own Agreement while considering both parties’ goals for the process and outcome. Although there are aspects of Collaborative Practice similar to the traditional mediation process, there are significant differences in the methodology, goals, and Team approach which often make Collaborative Practice an attractive alternative to both traditional mediation and litigation.

While some individuals with a traditional mediation practice consider themselves adept at practicing in a “collaborative fashion,” the Collaborative Practice Team typically works best when all of the Team members have been specifically trained in Collaborative Practice. There is a drastic difference between the dynamics and focus of a single-mediator model and the Collaborative Practice Team approach, and parties tend to derive the most benefit from the Collaborative model when the Team has been specifically educated in Collaborative Practice.

A closer look at each Team member’s role will highlight the differences between Collaborative Practice and traditional mediation. In a traditional mediation process, the parties meet with a mediator, who is likely an attorney or a mental health professional. The mediator helps the parties negotiate the divorce provisions from their respective positions and goals. If an agreement is reached, the mediator usually advises both parties to then take a copy of the drafted agreement to their own respective legal counsel for review prior to filing.

With Collaborative Practice, the parties have attorneys on the Team from the outset of the process. The attorneys provide legal information and advice to their respective clients, but do not negotiate on behalf of their clients as in traditional litigation. Instead, the goal of the Team is to help both parties reach their own goals in a respectful and open manner.

The Facilitator, usually a mental health professional, is a neutral Team member whose purpose is to help the parties maintain their best communication skills, run the meetings, keep the agenda on track and the goals in focus. The Facilitator may meet with both parties individually and/or together prior to the first meeting to get a sense of the potential issues that may arise during discussions in order to better facilitate the process, and may meet with one or both parties "off line," or outside of the group meetings, when necessary.

The Financial Neutral is generally a CPA, or a Certified Divorce Financial Planner, and is added to the Team when there are questions about the allocation of various financial assets, tax implications for the parties, and other financial issues. The parties share one Financial Neutral, whereas in traditional mediation or litigation the parties might obtain their own financial advisors. The Financial Neutral would only attend the meetings when there are specific financial issues being reviewed that would require or benefit from the Financial Neutral's presence; most of the Financial Neutral’s work would be done outside of the meetings based on the specific needs and goals of the parties.

In Collaborative Practice, the Team’s commitment to working together towards the parties’ goals is so vitally important that if the process breaks down, the Team disbands from the case entirely. This means that if the parties wish to litigate, they must obtain new counsel, cannot seek therapeutic treatment from the Facilitator, and cannot use the Financial Neutral as their expert witness.

Sometimes prospective clients ask about the cost of engaging in Collaborative Practice versus traditional mediation based on the number of professionals involved. Every mediation or Collaborative Practice case differs on an individual basis based on a host of factors. There may be more professionals involved in Collaborative Practice at the outset (2 Collaborative Attorneys, 1 Facilitator, 1 Financial Neutral), but at times in mediation there may be more professionals involved overall (1 Mediator, 2 Attorneys, 2 Accountants). When other professionals are needed, such as a business valuator or real estate appraiser, in Collaborative Law the parties often agree on hiring only one professional, whereas in mediation the parties may feel more comfortable each hiring their own. Collaborative Practice can also be more expedient with fewer overall meetings, due to the structured agenda and Team cooperation.

Collaborative Practice provides another option for dispute resolution. It may not be the best fit for every client, but it is worth exploring because it offers a different type of support to divorcing couples who not only want to complete the divorce process, but want to do it in a respectful manner driven by both parties’ goals. For more information, consult the Massachusetts Collaborative Law Council at www.massclc.org.

What is the role of a Guardian Ad Litem?

Literally, a Guardian Ad Litem is a "guardian for the suit." The specific role of a Guardian Ad Litem in a case depends on the nature of the Court appointment. In the Massachusetts Probate and Family Court, Guardians Ad Litem are frequently appointed to investigate or evaluate a particular issue and report back to the Court, or represent an individual who has an interest in the case, sometimes referred to as a Guardian Ad Litem/Next Friend

A Guardian Ad Litem appointed in the role of Investigator is an attorney who may be appointed in family law or probate matters.  Family law cases typically use Guardians Ad Litem to investigate and report on issues of child custody, parenting plans, parental fitness in guardianship matters, removal issues (where one parent wants to relocate to another state with a minor child), or any other issue the Court deems appropriate to have investigated by a Guardian Ad Litem. Sometimes in addition to reporting on the investigated issues, the Court also orders the Guardian Ad Litem to provide recommendations on the particular issue.

In probate matters, Guardians Ad Litem appointed as Investigators are usually involved in the review of estate, trust, or guardianship accounts which have been submitted for Court allowance. In these types of cases, the Guardian Ad Litem checks for any irregularities in the accounts, investments, and distributions, and generally ensures that the funds are being used for the correct purposes.

A Guardian Ad Litem appointed in the role of Evaluator is usually a mental health professional appointed in a family law case to evaluate and/or conduct psychological testing for a particular issue the Court deems salient to the case at hand. Some types of issues that may warrant the appointment of an Evaluator include alcohol and/or substance abuse, sexual abuse, cognitive disorders, mental health issues, anger management, or suicidality.

A Guardian Ad Litem/Next Friend is an attorney who may be appointed in both family law and probate matters. In family law cases, the appointment is usually made for individuals who are minors, incapacitated, or otherwise unable to represent themselves. This type of appointment is more akin to traditional legal representation, except where the Court wants substituted judgment, where the Guardian Ad Litem/Next Friend “stands in” for the appointee, to voice the position the individual would have, if they were not a minor or incapacitated in some fashion.

In probate matters, a Guardian Ad Litem/Next Friend is often appointed to represent the interests of unborn or unascertained individuals, or a class of individuals, if there is a will or trust with minor or potentially unascertained beneficiaries who would have an interest in the outcome of the case.

Basically, a Guardian Ad Litem Investigator or Evaluator is appointed to gather information for the Court on relevant issues that the Court deems pertinent to deciding the legal matter. The Guardian Ad Litem/Next Friend generally represents or stands in for an individual the Court feels has legal interests that need to be represented or protected. In all cases where a Guardian Ad Litem is appointed, the specific appointment is tailored to the individual circumstances of the case, with the idea that the Court can make better, more informed decisions with the information or assistance provided by the Guardian Ad Litem.

Divorce: Mediation or Litigation?

Many people anticipating an uncontested divorce ask me which divorce process is faster, easier, and less expensive: mediation or litigation? Most people believe mediation is the automatic winner in all of these categories. My short answer is: "It depends."

I am not trying to be evasive or nonresponsive. Like any process that involves multiple parties, issues, schedules, and the Court system, everyone can control just their own participation, and the legal machine moves only as fast as its slowest part. I have mediated divorces that have taken nearly 6 months just to reach preliminary agreement, and filed regular complaints for divorce that were finalized in as little as 3 weeks from the date of filing.

Mediation generally has the potential to be a faster process than litigation. Most mediation clients come to me because they would like to avoid certain aspects of litigation, namely hefty attorney fees, Guardian ad Litem expenses, and the possibility of lengthy Court involvement. In mediation, clients are able to take more control over the process, and perhaps most importantly, control over the outcome. The mutual desire to reach a reasonable result in an efficient manner may help drive the mediation process forward to expedient conclusion.

With a mediation, the speed with which the divorce issues are resolved and the documents are completed depends on the clients' mutual availability to meet with me (I only meet with both clients together) and the time they take to gather the information needed to complete the forms. My clients have the option of completing the forms themselves, and I am available to review them, or if they prefer, since I am an attorney mediator, they can give me the information and I will prepare the forms for them. Once the documents are ready for filing, my involvement ends and it is up to the Clients to file their paperwork with the Court and proceed from there. After filing, the wait for a hearing date depends on the Court schedule, but clients should expect to wait approximately 3 months.

It takes two parties to mediate. If either spouse does not want to participate in the mediation process, and if it is not possible for the parties to discuss or negotiate issues together, the only other alternative to obtain a divorce in Massachusetts is to litigate. There are other reasons why mediation might not be the best option for a divorcing couple, such as if there is a history of domestic violence, psychological intimidation or abuse, or if one party is incapacitated to the extent that he or she is unable to comprehend the legal issues and the implications of the mediation or divorce. Or, the parties may simply not both be emotionally ready to discuss and negotiate the issues that need to be addressed. It may be easier (and hence faster) to share information with an attorney, and not have to communicate directly with the other party.

Litigated divorces do not have to be drawn-out nightmares. Sometimes parties just feel more secure about proceeding with a divorce if they have legal counsel to guide them through the process. For many people, their divorce is the first time they have interaction with the Court system, and the process itself might seem scary, intimidating, or overwhelming. Having an attorney who can explain legal rights and court procedures, help complete the paperwork and negotiate the agreement, and accompany a party to court hearings might be all a party needs to feel secure in proceeding with the divorce. The parties can still negotiate the agreement and finalize the divorce without acrimony, and the whole process might not take longer than if it had been mediated.

Since mediators and attorneys are generally paid on an hourly basis, the amount of overall expense will likely depend on the number of professionals involved, and the time it takes for the parties to reach a resolution, whether by agreement or Court order.

So is mediation or litigation faster? The length of time to completion depends on the involvement of the parties and their ability to come to terms. As to which is easier, the route one party feels is easier may not be right for the other spouse. If one party does not or cannot mediate, litigation may be the only viable option. In certain circumstances, litigation might be easier for a party than attempting to mediate. And regarding cost, if parties can discuss the issues between themselves and complete some of the paperwork, then fewer professionals need to be involved for less time, and as a result costs may be minimized. While there is no hard and fast certainty as to whether the mediation or litigation route might be faster, easier, or cheaper for an uncontested divorce, the various factors discussed here should be weighed on a case by case basis, because ultimately for each couple, "it depends."

Can an individual under a guardianship marry?

Can an individual under a guardianship marry? A prior column focused on some of the different life situations that translate into different definitions of legal intent in the application of certain actions. The understanding is that legal intent is defined differently in different situations and in different states. The question raised in this column regards a situation when a person, usually referred to in law as a “ward,” who has a legal guardian, wants to get married or does get married.

Guardianships are established for different reasons and the individuals under guardianship or wards, have varied cognitive abilities. There is no blanket rule for all wards that allows or prohibits marriage. For each ward, the answer to this question depends on the reason for the guardianship, the extent of the guardianship and the particular individual’s mental capacity. For purposes of this discussion, let’s assume that the guardianships are of both the person and the property of the ward.

If the ward is subject to the guardianship merely because he or she is a minor, then the minor can petition the court for leave to marry. If the court allows the petition, the minor Ward can then legally marry despite being subject to the guardianship. This court procedure would apply the same way to any other minor wishing to marry who is not subject to a guardianship.

If the court grants the minor ward’s petition, then once the ward marries, the guardian would no longer have guardianship of the ward’s person, (i.e. custody of the ward or oversight of the ward’s education). However, the guardian would still have guardianship over the minor ward’s property, regardless of the marriage. It is possible that the ward or the ward’s spouse could subsequently petition to have the guardianship terminated or ask the court to name the newly acquired spouse as the ward’s guardian until the ward reaches the age of majority, but this would not happen automatically as an operation of law merely because the marriage occurred.

If the minor ward had also petitioned the court for legal emancipation, then the guardianship could have been terminated altogether without having to wait until the age of majority and the emancipated minor might have been eligible to marry without leave of court.

If a guardianship was established due to the mental incapacity of the ward, then the question of whether the ward can enter into a marriage hinges on balancing of the ward’s fundamental right to choose whether or not to marry, and the ward’s mental capacity and ability to enter into a marriage contract.

Because each ward’s mental abilities differ, each individual ward will have a different capacity to understand, contemplate and choose to marry. If the guardian believes the ward lacks the mental capacity to enter into a marriage, the guardian may contest the marriage from taking place. In the event the marriage has already occurred without the guardian’s knowledge, the guardian may petition the court to have it invalidated or nullified, sometimes known as “annulling” the marriage. It would then be up to the court to assess the ward’s mental capacity to enter into a marriage contract.

If the court determines that the ward does have the requisite mental capacity and the marriage is valid, then the court could decide if the guardianship would be terminated in part or in full.

It appears, both in law and in practice, that the threshhold for demonstrating the requisite mental capacity to marry is not unconquerable. At the time the marriage takes place, the intended spouses need only show intent to marry each other and an understanding of the consequences of the marriage, (i.e. the rights, responsibilities, and obligations of being married). Any lack of mental capacity a ward might experience prior or subsequent to the time the marriage occurred would not by itself be sufficient cause to invalidate the marriage.

If the guardianship only covers the property of the ward and the ward marries, the guardianship would likely remain in place until subsequent order of the court, regardless of marriage. It is unlikely a guardian of only the property of a ward would have standing to contest the ward’s marriage.

Possible concerns could be that the spouse married the ward in order to get access to or control of the ward’s assets. This question assumes that the guardian is working in the ward’s best interests and that the spouse is not doing so. In these matters, both the guardian and the spouse will claim to be proceeding in the best interests of the ward. In the event that the guardian and the ward’s spouse dispute the ward’s mental capacity for the marriage, the matter can be presented before a court of competent jurisdiction for judgment. Absent fraud or duress, however, if the ward possesses the mental capacity to enter into a marriage contract, marrying would remain the right and choice of the ward.

All of the above assumes that there is not a prenuptial agreement, for which both parties have the mental capacity to contract. This agreement could privately resolve the issues.

As in all such matters, it is important that all parties seek the advice of an attorney as the issue may be complex and the answers may be different according to the situation and/or state.

By Edward M. Stern, J.D., and Beth L. Aarons, J.D., M.S.W., Reprinted by permission of the New England Psychologist, April 2009.

Estate of Confusion: What is in the Marital Estate and how is it Divided?

First, what is the marital estate? The marital estate is the collection of all property, assets, and liabilities which are subject to division during a divorce. In Massachusetts, the marital estate includes any and all property acquired by the parties, regardless of how or when it was acquired or whose name it is in.

Many people believe that the only property subject to division during the divorce is that which was earned, saved, or bought during the marriage or in both parties' names. Some common assumptions of property excluded from the marital estate are: the house one party purchased before the marriage, the interest in a grandparents' trust fund, the inheritance from a parent's estate, lottery winnings, monies transferred to irrevocable trusts---the list goes on and on.

Unless there is a prenuptial agreement specifically defining the divisible assets in the event of divorce, the short answer as to whether property is included in the marital estate, is "yes." The house purchased before marriage in only one person's name, the Bentley inherited from late Uncle Jack, and the $50,000 won in the lottery after years of legal separation are all included in the marital estate. This means that all of these assets are subject to division.

Assets with an uncertain value, such as an expectancy of an inheritance, are also included in the marital estate. However, the nature of wills is that they can be changed at any time prior to the Testator's death, and so until the estate is probated, being named as a beneficiary in someone else's will is just an expectancy. This means that while the expectancy may be considered as part of the marital estate, it is not necessarily counted dollar for dollar as an IRA or savings account would be, until an actual distribution from the decedent's estate is calculated and/or distributed.

Assets acquired post-separation are also included in the marital estate, such as with the example with the party who wins the lottery after years of separation. Until the Judgment of Divorce is issued, all income earned and assets acquired are subject to inclusion in the marital estate.

Gifting assets to third parties does not automatically exclude the assets from the marital estate. Sometimes if animosity enters into the the heat of analyzing the marital assets, one party might feel gifting assets to a third party will diminish the marital estate, and therefore also diminish the other party's share. The more likely outcome with such an attempt, however, is that the Court will attribute the gifted amount to the gifter's asset column, which will result in the gifter receiving a smaller portion of the marital estate. If the gifter then retrieves the gifted amounts, this is proof that the transfer was never really a gift.

What is included in the marital estate is different from the question of how the marital estate is divided, and how the assets are considered during division. In Massachusetts, the marital estate is subject to "equitable division." The Probate and Family Court is a court of equity. There is no hard and fast rule or formula that divides assets by a certain percentage, as you would find in a community property state.

Instead, the Court considers a host of factors regarding the divorcing parties, including among other things, their educational, employment, and health status, their financial and non-financial contributions to the marriage, their respective contributions to the preservation and improvements to the assets, and the overall marital estate. After examining the totality of the factors, the Court makes a determination as to the equitable division of assets. As a rule of thumb, the shorter the marriage, the closer the parties may be put back in their respective pre-marriage positions; the longer the marriage, the closer the division of assets may be to a 50-50 split, but as with any rule of thumb, there are always exceptions.

Additionally, a division of assets may not entail dividing each asset. The party who purchased the house prior to the marriage may end up keeping sole title and interest in that property. The fact that assets are in the marital estate just means they are subject to overall division, and not that each party will necessarily get a slice of that particular house. If it happens that the house is the only asset, the Court may have no choice but to divide the interest in the asset to effect an equitable division. Each case presents different assets, circumstances, and legal factors, and so what is equitable in one divorce may not be so in another. Parties can also negotiate their own division of assets, and often do so in the face of uncertainty about what the Court might order in final judgment.