While listening to the recent doom and gloom about the government shutdown, I was incredibly annoyed by the perception that everyone in elected office in Washington should have been forced to compromise by their own common sense. It also occurred to me that Washington is not unlike divorce court. Opposing sides, rigid positions, angry murmurs — it could be any morning in the hallways of any divorce court. Where the Constitution balances powers to eventually force compromise, the Probate and Family Court sets up mechanisms to encourage resolutions. And any resolution will require compromise.
The first Probate Court compromise enforcer (huh) is the Family Service office. Generally you would be involved with the Family Service office the first time your case comes into court with motions regarding temporary parenting or temporary support. The FSOs are, by and large, well trained, hardworking and very aware of how the judges in their particular court handle routine issues.
The next point of forced compromise is the pretrial conference. At this point in the process all of the discovery should be done, and if there is a Guardian ad Litem her report should be in. In other words, the … Keep reading
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 or 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
Done well, by both counsel and the judge, the pretrial conference is a great opportunity to settle a divorce case. That is if you have not already settled it at the four way meeting, in which case you probably will get divorced on the day of the pretrial conference.
If you haven’t settled, this is the time for the attorneys to write a memo that tells the story of your circumstances and sets forth in the best light possible what you want, and why you want it. By the time of the pretrial there should be no open questions as to values or assets. If there has been a custody issue the Guardian Ad Litem report should be in and should have been reviewed. Both sides must file an up to date financial statement and should file an asset chart as well.
The idea behind the pretrial conference is that the judge can read the memos and the financials; ask the lawyers if they have anything to add then the judge can tell everyone what he or she thinks about the areas of dispute. Then the parties and their lawyers (who hopefully have also brought draft agreements … Keep reading