August 15, 2016

So, What Does the Collaborative Attorney Do? Part II

question markIn Part One I talked about the experience attorneys gather while working in the traditional role of an adversary. Tasked with the sole responsibility of putting the case together, attorneys were the person in charge.

When we created the collaborative practice model, the role of the attorney shifted dramatically. Instead of being the sole person in charge, the attorney became one member of a team of professionals with equally balanced roles in the process.

Collaborative practice removes the case from the supervision of the family court, and allows the parties to craft agreements that best fit their own needs and interests. While the family court still must approve the terms of any agreement reached through principled negotiation, parties can agree to do things that would not be available to a family court judge. The reason for this is simple. The judge is required to conform his/her decision to statutory and case law and the rules of civil procedure.

In the collaborative process the attorneys become allies of the parties and the children in shaping an agreement that can best meet the interests of the whole family. When the parties are supported to work in synergy with each other, creative solutions are possible.

Courts favor agreements, especially when they are worked out with the assistance of attorneys and other professionals. As funding for court processes have been trimmed, the budget courts have to work under has reduced the services that can be provided. Court time is now at a premium, and scheduling and docketing demands create stress for both the court and parties using those services.

As the collaborative model of practice has shaped and reviewed, the roles of each of the primary professionals, attorneys, financial neutrals, family specialist and coaches, have evolved to provide an ever more efficient model for assisting parties through the challenging process of divorce.

Although parties have greater freedom to create new ways to resolve issues, the decisions they arrive at are still governed by Minnesota statutory law, ever evolving case law, and ever changing requirements of the established rules of process.

Let me present three examples of complex choices available to the parties that have significant consequences which must be fully understood by each party before allowing them to elect to utilize such provisions:

1. Spousal Maintenance: This is the term used for the award of monies paid by one party to the other party to contribute to their support. By Minnesota law, when such monies are awarded, the party receiving the payment must include those amounts as their personal income for federal and state tax purposes, and are allowed to be deducted from the income of the party paying the support. If spousal maintenance is NOT awarded in the initial decree, the court is without jurisdiction to make such an award at a later time, regardless of change in circumstances or need.

2. Adjustments to Spousal Maintenance: An additional provision in Minnesota law allows parties to reach an agreement regarding spousal maintenance that would fix the amount and duration of spousal maintenance, and remove the power of the court to change or modify that term regardless of later changes in circumstances. This gives one party the assurance that if spousal maintenance is used to help parties have more funds available for their use, and less funds exposed to income tax. Each party in such an arrangement forfeits rights that would otherwise be available to them to have the amount and/or duration of payments modified due to changes in circumstances. Each party must fully comprehend the respective risk they take by removing the court’s jurisdiction to otherwise grant relief for one party or the other due to significant changes in circumstances.

3. Other Considerations: Under Minnesota law if a party who is receiving spousal maintenance from the other party remarries or moves in with a new partner, the obligation for payment of spousal maintenance, by law, terminates. I have seen situations where the second marriage ends in divorce from the new spouse. Because it is a short term marriage, the new spouse may well have no established legal obligation to pay spousal maintenance.

Additionally, that party will be unable to obtain re-newed spousal maintenance from the former spouse, regardless of circumstances, because once spousal maintenance terminates, the court is without jurisdiction to re-open the original divorce and award new support.

These are but three examples of countless nuances of the law that can have dire consequences if either spouse is not well informed. By having an open conversation about the legal aspects spousal maintenance, with both parties and both attorneys present, the risks can be explained, and there will be options available for the parties to avoid unknown consequences. Often times, with good planning, potential conflicts can be worked around.

Sometimes legal ramifications can be recognized by other professionals, particularly financial neutrals who often have special knowledge. Usually, however, for family specialists and coaches, their areas of expertise usually will not extend to legal dimensions.

Legal issues arise with the facts and circumstances of the parties. Because of the legal requirements that prohibit one attorney from representing two parties, each collaborative case will have two attorneys. Given the unique nature of the collaborative process, this means that both parties have the advantage of the expertise of two attorneys to help spot significant issues, and resolve them before the agreements are submitted to the court for approval and entry.

Keep in mind, the role of the attorney is significantly more complex than simply drafting the legal documents, although that role of itself also requires knowledgeable attorneys.

To learn more about how attorneys can best serve your interests, contact any collaborative law attorney.

Bruce PeckABOUT THE AUTHOR
Bruce Peck
Attorney

Bruce is one of the founding members of the Collaborative Law Institute.
Back in the Wonder Years, this small group was trying to figure out what a new way of practicing family law might look like. Today the collaborative law concept has exploded, not just throughout the United States, but also internationally. For over thirty years Bruce has continued to hone his skills to provide the highest quality of services to family law clients. He helps good people make tough choices during difficult times.

Bruce is a laid back and easy going person who listens well to others. He is a shameless optimist who can always see possibility and opportunity. Being very curious by nature, he is a voracious reader. His love for words has drawn him into being an avid poet.

Bruce’s skills supports clients interests without alienating their spouse. When the parties reach agreement, it is not under duress. They have the time to discuss all decisions with their attorneys before signing the agreement. Once completed, the stipulated divorce is filed with the court for a default hearing in which neither party, nor their attorneys, ever have to set foot inside a courthouse. Learn more at www.BrucePeckLawOffice.com

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