Options Available When Getting Divorced

Last night The Divorce Center and the Massachusetts Collaborative Law Council presented a joint program, entitled, Options Available When Getting Divorced, at the Watertown Public Library in Watertown, Massachusetts. Attorneys David Rubin, Miriam Kosowsky, Linda Sternberg, and Linda Cohan, a collaboratively-trained coach, explained the options that are available to individuals when they are getting divorced.

Attorney Rubin, a trial lawyer in Framingham, said that the best approach depends upon the facts of each case. In situations where there is physical or emotional abuse, litigation is probably the best course of action. The filing of a 209A restraining order, for instance, may result in the issuance of a Stay Away Order to the spouse who is abusing the other spouse or children and an Order to Vacate the Marital Home. The purpose of this is to protect the victim from irreparable harm if the abuse is not addressed immediately. Once the situation at home is stabilized, the parties can come to court again to obtain Temporary Orders to address other issues, such as Child Support, Parenting Plans, Health Insurance and other matters.

Litigation may also be needed when one spouse is secreting assets without the knowledge of the other spouse. Secretly liquidating joint bank and investment accounts, encumbering assets to “cash-out,” and transferring assets out of the other spouse’s reach are cases in point. In this situation, the divorce complaint should be filed immediately in the probate court to get the benefit of the Automatic Stay. In other words, once suit has commenced and served on the other side, the parties cannot dissipate or transfer joint marital assets without agreement of the other side, or by court order. A party that ignores this, does so at their peril, and serious sanctions from the probate court may follow. In this context, there is no time to negotiate because time is of the essence. It is necessary to stabilize the situation so that further irreparable harm does not occur.

Not all cases, however, are appropriate for litigation. Where the spouses understand that they have to act in the best interests of their children, even though they are going in separate directions in their lives, mediation or collaborative law might be appropriate. In mediation, the parties seek the assistance of a third party neutral, who could be a lawyer or mental health professional, to come up with an appropriate separation agreement. It is strongly recommended, however, that the parties show the draft agreement to their own legal counsel to make sure that the agreement drafted by the mediator is fair and has addressed all of the necessary issues.

Sometimes, mediated agreements break-down and the parties have to hire their own counsel to commence litigation.

Collaborative law is a hybrid of litigation and mediation. In collaborative law, each party has their own legal counsel but they also have a coach, who is a neutral, to work with both parties to make sure that the process goes smoothly. The coach can address a variety of financial and psychological issues. The parties may also hire accountants and other professionals to help them with financial, tax and other issues. The parties and their counsel commit to collaborative law by signing an agreement at the outset of the case to stick with the collaborative process and not to threaten the other side with going to court if they hit speed bumps. If one side goes to court, then they have to hire new counsel and start from the beginning. This acts as an incentive to stay with the collaborative process.

In order for collaborative law and mediation to work, there has to be a modicum of trust between the parties. If there is no trust, then litigation is probably the best option.

The decision to go with traditional litigation, mediation, or collaborative law is based upon the facts of each case. You should speak your legal counsel to determine which one is best for you.