Should you Designate a Guardian in your Divorce Agreement?

Many divorcing parents put their estate planning issues on the back burner as part of their post-divorce “to do” list. Divorcing parents with minor children or children with special needs, however, may wish to include a guardian nomination provision within their divorce agreement. Guardian nomination provisions are not required by the Court as part of the divorce agreement, and are therefore seldom seen, but having the conversation prior to the divorce and memorializing the couple’s agreed-upon wishes is an easy way to protect the children from a potential nightmare down the road.

Most divorcing couples are primarily focused on the immediate issue of transforming a single family unit into separate lives: division of assets and liabilities, transitioning to two households, and creating the parenting plan. These issues contemplate the parents living apart, with the issue of the death of one parent arising primarily in the context of a triggering event for the termination of financial support.  The care of the children in the event of the death of both parents is usually not part of the typical divorce discussion.  In out-of-Court divorce processes such as Mediation or Collaborative Law Practice, these types of additional discussions are encouraged.

So what happens to the children if both divorced parents die?  As with an intact family, the parents’ relatives would probably go searching for a Last Will and Testament to see what the guardian designations are.  With a married couple, whose estate planning was likely done together, the guardian nominations would be the same in both Wills.

For divorced parents, who each have their estate plans prepared separately post-divorce, the list of guardians in each Will may not overlap.  Divorced parents frequently nominate guardians only from his or her own side of the family.  There may be little or no discussion with the ex-spouse about who should raise the children.  Differing guardian nominations can lead to a contested guardianship, including litigation, lawyer fees, and the time and expense associated with a contested Court process.  Worst of all, after the child has lost both parents, the child's relatives are at war with each other.  Their relationships may be irretrievably destroyed, and if no temporary guardianship is allowed by the Court, the child may remain in DCF custody and placed in a foster home pending the outcome of the guardianship case.

While this worst case scenario may not occur in every case, the potential for it is there if divorcing parents do not take the time to jointly consider who will raise their children if they are both deceased (or otherwise unavailable).  Adding a clause to the divorce agreement to nominate guardians would help avoid the possibility of a contested guardianship.

Whether the divorce agreement includes a list of specific names or merely states the parents will confer post-divorce to agree on the nominees, the type of guardian nomination provision is far less important than the fact that there is one at all, demonstrating that the parents have contemplated the options for who will raise their children in the event they are not available to do it themselves.

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.