A very wealthy Dallas couple decided on the collaborative approach to divorce after they spent $7.4 million in litigation. The litigation attorney called it a marathon case. The collaborative attorney suggested it should have been a 5K. Here is the story from D Magazine September 2012.

DVKB Family Lawyer Irwin Kuhn and Nashville attorney Marlene Moses wrote this article outlining the steps of a hypothetical collaborative divorce. Collaborative divorce problem solving settlement approach to divorce. The article was originally published in the Nashville Bar Journal.

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Kevin Fuller, a top Texas divorce lawyer, discusses why collaborative divorce makes sense for people trying to preserve family businesses. Among the reasons:

• Negotiations are conducted in a private arena.
• Legal fees are used more efficiently.
• Settlement discussions can be scheduled to fit business needs rather than the court’s calendar.
• The collaborative process is less disruptive for the business’ staff.
• Results are often quicker.

Kevin’s full article is here: http://www.koonsfuller.com/dividing-the-family-business-without-destroying-it

Irwin Kuhn and Dot Dobbins are divorce and family lawyers who practice collaboratively at Dobbins Venick Kuhn & Byassee, PLLC.

Irwin Kuhn recently authored an article in the Nashville Tennessean concerning the divorce of former Senator Bill Frist and his wife Karyn. The Frist chose the collaborative divorce approach. Irwin Kuhn is a collaborative divorce lawyer in Nashville and commented on that choice.

Frists Work to Make Divorce Less Painful

In this era of scattered families, the people who are mentally marginalized due to age, substance abuse or mental disabilities are often left in a vulnerable position to be taken advantage of by third parties of unscrupulous family members. It is common for a young family member to be living with a grandparent to be taking money from the elder, using their credit card or having a parade of their friends in the house who may take advantage of the senior or mentally disabled individual. As one social worker put it “these people may as well have a target drawn on their backs.”

Fortunately, the state of Tennessee has laws that can protect such individuals. The conservatorship laws are quite specific and do an effective job of protecting the financial and healthcare interests of people with diminished capacity. It is not a matter of just getting one individual appointed to look after the ward, but the court will actually oversee what is going on in the individual ward’s financial life through appointing a third party attorney to review the individual’s financial and home situation when a guardianship petition is filed, monitoring the expenses paid on behalf of the ward each year and having laws in place that make the appointed conservator go back for court approval when expenditures on behalf of the ward are made in excess of $1,000.00. 

A conservatorship is initiated by filing a petition with the probate court of the county where the ward lives stating that the person is an individual who is in need of assistance with their financial and healthcare needs (or it may be that they are only in need of assistance with one or the other). An affidavit of the personal physician or a physician who has examined the ward within the last ninety days is normally attached to the petition stating that due to certain conditions the subject of the petition is in need of the court’s oversight. If the situation is one of an urgent nature, the court can usually hear the petition on an emergency basis within a few days. The petitioner (the individual who filed the petition) will usually be appointed the temporary conservator if they want to so serve and can qualify for a bond. 

The petitioner doesn’t have to serve as the conservator. There are non-profit agencies which can be appointed to serve as the conservator (Fifty Forward offers such a service in Nashville, as does Guardianship and Trust). These agencies will charge an hourly fee to manage the finances and healthcare needs of the ward. In some cases it is best to have a third party manage the needs of the ward due to family conflicts or parent/child dynamics. If there is no one else to assist the ward, in Nashville, the public conservator (who is an attorney) can be appointed as the conservator. Annual reports must be made to the court and an annual accounting (like a check register with the copies of check attached), must be approved by the Court’s Clerk and Master. If a house has to be sold, the court must approve the sale and the changing over of assets from one form (investments) to another (liquid funds).

The reporting requirements are not onerous and in this age of banking on line and low cost telephonic (or video) communications, it is not hard for a remote relative to be able to take care of their relative’s needs from a far location. It may be more desirable to have someone who can see the ward more than a few times a year, but someone removed from the situation can often be the best evaluator of needs from a slightly detached perspective. 

This process is not inexpensive, the initial filing will be about $300.00. The attorney’s fees for drafting the petition and meeting with the petitioner will be on an hourly basis. A guardian ad litem (also usually an attorney) will ordinarily be appointed to inform the court of the situation of the ward and to recommend whether a conservator should be appointed. Tennessee law provides that these fees may be reimbursed from the ward’s funds if a conservator is ultimately appointed. If the ward wants representation that attorney’s fees will also be charged to the ward’s funds. These expenses can add up pretty quickly to thousands of dollars. 

It is best to get everyone in the family on board with the process in order to minimize the expenses. If old unresolved family issues are going to encumber the process, the family may want to consider a mediation prior to going forward with the conservatorship in order to avoid an interfamily battle. The process can go forward even if someone else holds the power of attorney for the individual if the fiduciary is not acting in the best interests of the ward. 

An individual can best be served sometimes only by a conservatorship which is overseen by the court. The conservatorship can be brought by interested non-family members as well as family.

(Originally published by The Nashville Bar Journal, December 2011-January 2012)

The stage for a workable post marriage relationship between two people whose lives will always connected through children or family or friends is not set well by a divorce complaint dramatically setting out the gory details of one party’s “inappropriate marital conduct” followed by interrogatories requiring each side to commit to writing “with specificity” all complaints they have about the other and to list “with specificity” all acts of misconduct, and to “identify each witness thereto”. But this is often how the divorce process begins. And, then there is “Have you had any intimate physical contact, including …” Come let us reason together?

As have many celebrities and high profile business executives and politicians, the comedian Robin Williams and his Marsha chose an alternative path to a traditionally litigated divorce, collaborative divorce. Said Williams, “I’m lucky, you know, with someone like Marsha, we have amazing kids and it’s not a slash and burn. But the idea that it’s going with love, I think, is important. And for me it’s been… a good thing.”

The collaborative path to divorce is being chosen nationally and now in Tennessee, not only by people with high profiles concerned about personal privacy. Those who chose collaborative divorce do so to preserve civil relationship with someone they once loved and may well have to continue working with in the future as parents. For some there is little hope or need for a future relationship but they want to end their marriage without the added stress of litigation.

FACING THE STRESS

Divorce and separation are the most stressful life events for American adults trailing only the death of a child or spouse. For children, elevated levels of discord during divorce increase the chances of psychological problems such as depression, anxiety, aggression and other disorders. In the worst cases, where one parent in the process alienates their children from the other parent, studies show that when those children become adults 70% suffer depression, 35% battle chemical dependency, and are frequently estranged from their own children.

Traditional litigation based divorce cannot be blamed for problems that may have their genesis well before the divorce process began. But, tales of the divorce process making a bad situation worse are familiar. Too often aggressive tactics designed to present parties in their worst light to gain a larger share of the pie and battles over children create lasting fissures.

COLLABORATIVE FAMILY LAW IS …

Collaborative family law is the newest tool in the alternative dispute resolution toolbox. Collaborative traces its roots to Minnesota in the 1980s. But, it began to take off in the first years of the new millennium. The International Academy of Collaborative Professionals (IACP), the ABA of the collaborative world, had just 200 members in 2001. Last year it topped 4000.

North Carolina attorneys led the first collaborative training held at Vanderbilt Law School in Tennessee in the summer of 2009. Additional training was offered in 2010 and again last September.

The Middle Tennessee Collaborative Alliance (MTCA) was formed by a group of lawyers, mental health professionals, and financial planners interested in a divorce process more likely to preserve relationships.

The collaborative process begins when husband and wife hire lawyers who enter into a participation agreement with them and each other that they will work to help the clients reach a negotiated settlement. They will not go to court with them except to file a complaint on the grounds of irreconcilable differences, and then to have the judge enter a final decree.

COLLABORATIVE IS NOT …

The agreement to not go to court with clients is the essence of the collaborative process. If the attorneys do not make such a commitment, it is not a collaborative case.

The agreement to forego court puts a premium on settlement for clients who will have to spend more money and more time if they must hire litigation counsel. The collaborative divorce attorney is transformed from litigator to transactional lawyer. The measure of success is reaching a negotiated settlement that endures the test of time. There is no financial or other incentive to let a court decide the outcome of a case.

GOALS V. POSITIONS

The emphasis on a negotiated settlement encourages clients to pursue their goals and interests rather than their positions.

Dad may demand “50-50” parenting time, or “joint custody”. Mom may insist on “standard parenting time.” Those are positions.

In collaborative negotiations, the focus is on the “why” behind the position. Dad needs to know he will have an important, active role in his children’s lives. Mom is concerned about the amount of time the kids will spend with caregivers in the 50-50 model since Dad works long hours as a busy professional. Creating a parenting plan that addresses those needs and concerns is possible without excluding any. The result is a win-win for Mom and Dad, and a win for the children.

DISCOVERY

Discovery? Of course there is, but form interrogatories and requests for production focusing on past defalcations are jettisoned. The parties from the start make a commitment to what the MTCA calls in its participation agreement “full and honest disclosure of all information pertinent to the resolution of [the] case.” This is hardly a radical idea. Judge Philip Smith, who handles the bulk of Nashville’s family law cases, states in his chamber rules, “[i]nformal discovery will save the parties significant cost in attorney fees and may result in less adversarial attitudes toward one another rendering settlement more achievable.”

Will clients be forthcoming? Experienced attorneys have a practiced ability to tell not only if their own client is withholding information but also whether the other side is providing what they should. The collaborative agreement instructs the attorney to withdraw rather than allow a client to act in bad faith.

USE OF OTHER PROFESSIONALS

Collaborative practice is also a major change from traditional family practice in the way other professionals are used. Rather than hire battling experts, such as financial planners and child specialists, parties look to neutral authorities trained in the collaborative process who work by agreement that they will never be called on to testify in court for one side or the other. They also agree they will not represent either party following the divorce.

Since it is usual in collaborative practice for the parties to meet together, with counsel, to identify goals and negotiate settlement, the possibility for highly charged emotions is distinct. It is not uncommon for parties to bring in a neutral to help control the discussion. These neutrals, called coaches , usually have expertise in mental health and relationships. Their role is not to provide counseling, but to use their training to keep difficult conversations civil and focused on goals. Attorneys find that skilled coaches help them understand the subtextual or unspoken goals of parties in a way that profoundly helps them develop settlement options.

The use of coaches varies from jurisdiction to jurisdiction. In some, it is common to use two coaches, one for each party. In others, a single coach facilitates discussion in a manner similar to a mediator in other cases. In still other jurisdictions, coaches are rarely involved.
MEDIATION V. COLLABORATIVE

As effective as mediation is in many cases, too often conciliation efforts come after damage has been done. Many lawyers refuse to go to mediation with clients until completion of discovery that is often meaningless, frequently burdensome, and usually expensive. As well, parties learn little about working together when, as is the common but anomalistic practice in Nashville, parties are separated from the beginning of mediation until the end.

COST

Naturally, the question of expense arises. Multiple meetings with both lawyer; add in mental health professionals, financial experts, and child specialists. It certainly sounds expensive and the perception that collaborative is only for the wealthy persists. But, seasoned collaborative lawyers disagree.

Kevin Fuller addressed the issue. Fuller is a Dallas, Texas, matrimonial lawyer listed in Best Lawyers in America, Top 100 Lawyers in Texas, and chair of the Texas Bar’s collaborative section. Since 2007, Fuller says he has done 56 collaborative cases and three he describes as “go-get-‘em” cases. He calculated that the fees from the three “go-get-‘em” cases exceed the fees in all 56 collaborative cases. So much for the expense fear.

Why were Fuller’s collaborative fees lower despite the meetings and the experts? Paying counsel to propound and answer discovery requests and then spend time in court over the sufficiency of such responses and for other motions is no bargain. Oh yes, and, then one might toss in a motion to have a psychological exam to determine just how crazy their spouse was for being married to them all this time.

On the other hand, collaborative protocols are designed to make meetings efficient and the goal of all is to achieve settlement. Put another way, the cost of war is usually more than the cost of diplomacy.

CONCLUSION

One colleague when first presented with the term “collaborative divorce” joked that it was an oxymoron. Is it pie in the sky? In the late 90‘s when mediation was new in this area, the common refrain was that if couples could mediate their differences they would not be getting divorced. Now, mediation is required by statute in most case involving children or before a case goes to trial.

Certainly collaborative methods of marital transition and post-divorce dispute resolution emphasizing clients working together to craft their own agreements are far less likely to promote alienation, distrust, and bitterness through traditional litigation and more likely to be durable and workable. Privacy is protected. Business disruption is minimized. Collaborative divorce is the next phase.

A comparision of outcomes of mediations and going to court was the subject of a 12 year study by Dr. Robert Emery, director of the University of Virginia’s Center for Children, Families, and the Law. Here is a link to a summary of his findings: http://emeryondivorce.com/divorce_mediation_study.php. Dr. Emery found that in the group that mediated, the non-primary residential parent was more likely to spend more time with their children and have more frequent contact, in the long run. The primary residential parents graded the other parent as better parents than did the non-mediating group.

 Irwin Kuhn and Dot Dobbins practice collaborative divorce and family law in Nashville to help minimize the negative affect of divorce on children. This article in the Wall Street Journal, The Child-Focused Divorce, notes that the intensity of a divorce can not only affect grades and behavior when children are young but also their relationships when they get older. online.wsj.com/article/SB10001424053111904537404576552631228768332.html

Irwin Kuhn and Dot Dobbins were among the first group of Tennessee attorneys to be trained in collaborative divorce and family law practice which focuses on out of court divorce agreements. The training took place in Nashville at Vanderbilt University Law School. Dot and Irwin participated in additional training with Chip Rose during the summer of 2010 and the fall of 2011. Chip is one of the nation’s premier collaborative divorce trainers. Irwin is a founding member and vice-president of the Middle Tennessee Collaborative Alliance (MTCA) and a member of the International Academy of Collaborative Professionals (IACP).’

See Also: http://www.collaborativepractice.com

     Many Tennessee courts and attorneys by reflex insert parenting plan provisions prohibiting residential parents from allowing overnight visitation by “paramours” or “members of the opposite sex to whom they are not married”.

    The Court of Appeals for the western section of Tennessee recently struck down a local rule in Gibson County requiring similar language in all permanent parenting plans. Barker v. Chandler (September 18, 2009) was widely publicized because it struck application of the mandatory language to a mother and her same sex partner who are not allowed by Tennessee law to marry.

     The decision has wider implications for all parents who may be cohabitating or involved in other relationships without the benefit of marriage. The court noted that Tennessee statutes and court opinions require “that trial judges make decisions regarding residential parenting of children ‘upon the basis of the best interest of the child’”

     Trial courts in Tennessee following the western section’s opinion will almost certainly be allowed to consider a parent’s relationships and living arrangements, but those factors will have to be balanced with all others presented to the court when making parenting decisions in the best interests of the child.