If you read this blog, you probably know that I am a huge proponent of negotiating settlements in divorce cases. As an attorney who has spent her career in divorce litigation, I know firsthand the costs associated with bringing a case to trial, and the devastation that trial can leave in its wake. But convincing parties who are angry and have hurt one another to compromise is no small feat.

The length of time and expenses involved with litigation can, therefore, encourage parties to become more reasonable. In some instances, one of the parties may be truly unable to recognize that compromise is in his or her best interest. But in others, a letter from counsel, laying out the realities of the various choices available and asking the client to sign off on the unreasonable negotiating position he or she is forcing their attorney to take, can break the logjam. (There are also times that intractable issues exist that must be tried; however, that is very rare.) A lot of cases settle on the eve of trial, which is horrifically expensive. Over the years, innumerable judges have told me that the best divorce agreements leave both sides unhappy. I … Keep reading

Understanding the Differences Between Litigation and Mediation in the Divorce Process

Hi there,

As I meander around the Internet reading tweets and posts about divorce, I realize there is a great misunderstanding on the differences between litigated divorces and mediated divorces.  

Most divorces are resolved by negotiation of one kind Divorce mediation conferenceor another; in fact, very few divorces go to trial.  Mediation is simply a form of negotiation.  It is a more intense form, if you will, as there is a neutral third party who can keep the combatants on track.  For mediation to work there must be a level playing field, in terms of information, understanding and emotional equality between the divorcing spouses.

Generally litigation techniques (discovery, subpoenas and depositions) are necessary if one party has all the financial knowledge and the finances are complicated.

It makes a great deal of sense to engage in some limited discovery, including valuations, and then once all the cards are on the table, mediate.  Mediation can happen with or without the attorneys in the room, although sometimes it’s best to have the attorneys involved as that can temper emotional inequality.  The Courts strongly encourage it, but you need to know what the marital estate is before you begin.

Without mediation, … Keep reading

Hi there,

I don’t know if any of you follow baseball but the owners (or owner and his wife) of the LA Dodgers are in the middle of a doozy of a divorce case.  A few years ago Frank and Jamie McCourt were Boston Real Estate developers and desirous of buying the Red Sox.  When they couldn’t get the Sox (thank God!) they bought the LA Dodgers and moved to California.

The divorce is so bitter, and the stakes and sports interest so high, that there actually is an entire blog devoted to the divorce.

The most bizarre piece of all this to me is not the acrimony of the divorce but the extremely peculiar “marital agreement” that had 2 forms.  One word in one exhibit was different in half of the signed contracts. It either said “exclusive” of the Dodgers or “inclusive” of the Dodgers.  A big difference and now that the lawyer has testified, the parties have decided to attempt to mediate this issue.

Stay tuned!


Nancy… Keep reading

Hi there,
In my last post I mentioned the Family Service Office of the Probate Court.  That is the department which is tasked with getting litigants to settle their cases. Most cases do settle, which is a good thing as the system would otherwise be totally overwhelmed. It is also a good thing for the parties, as an agreement in which you have had some say is generally better than one which is imposed on you. 
Even if it is costly to get there, an agreement is less expensive than trying your case and it has a better chance of being final as well.  One of the best ways in terms of cost and civility to reach an agreement is through mediation.  This is what the Family Service Officers do and here is a good explanation of non Court mandated mediation from Partner Robin Lynch Nardone who has extensive experience in family law mediation:
Resolution of a divorce or other family law matter without extensive litigation in the court is possible. Mediation is a voluntary process that invites people to come to agreement through informed negotiation with the assistance of a neutral third party. Mediation gives the Keep reading

After the defendant has been served or has entered an appearance, one or both parties usually file a motion asking the court for temporary orders. These deal with important issues such as:
• Who has to move out
• Who has physical custody of the kids (where they live)
• Who has legal custody of the kids (who chooses their doctor)
• Visitation issues (parenting plan)
• Spousal support and/or child support
• Other financial issues such as who pays the mortgage, medicals bills, tuition, etc.
Obviously, these are all compelling and important issues which differ widely from family to family. If the issues can be resolved between the parties, or the parties and their lawyers, then their agreement can be brought to court in the form of a joint stipulation which the judge will (usually) approve and adopt as a court order. The judge will send the parties to Family Service to mediate unresolved issues. Issues remaining after mediation will be decided by the Judge after hearing from both sides.
Before going to Court your attorney should help you prepare a financial statement (there are two – for those with income over $75k and for those with income Keep reading