Mediation

Catherine Spanu, Burns & Levinson

Catherine Spanu, Burns & Levinson

Many divorcing spouses worry about the possibility of their spouse selling assets during a divorce and leaving little or nothing to be divided. It can be particularly problematic if a spouse was financially controlling or secretive, or handled all the finances during the marriage with the other having a limited idea of the full financial picture. One could sell assets that the other doesn’t even know exists. Or, a spouse might transfer money or property to a family member to try to prevent it from being accessed by the other spouse, anticipating that the family member will transfer it back after the divorce is final.

But will the Court really allow a spouse to cause financial harm to the other by allowing assets to be sold or transferred in this way? Probably not, due to Supplemental Probate and Family Court Rule 411. This is sometimes referred to as the “Automatic Restraining Order” or “Rule 411.”

This article will discuss how Rule 411 works, and what Rule 411 does (and does not do) to protect marital assets for equitable division during the divorce process.

Rule 411 Goes Into Effect When a Complaint Is Filed or Served

Once the spouse who … Keep reading

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