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Friday, 19 September 2014 00:00

Collaborative Divorce

Collaborative Family Law Promotes Divorce with Dignity

​Q: What, exactly, is collaborative family law, and how does it work?
A: Collaborative family law is a process through which the parties to a divorce and their individual attorneys commit to resolve all issues of the divorce by negotiated agreement without resorting to or threatening litigation. 

Collaborative law requires all parties—spouses and attorneys—to sign a collaborative law participation agreement, pledging to take a reasoned approach on all issues. All participants agree to create proposals that meet the fundamental needs of both parties and, if necessary, to compromise to settle all issues. After this agreement is signed, each spouse meets with his or her lawyer. Then, both spouses and their attorneys attend the first collaborative meeting. 
 
Almost all collaboration business is done in four-way meetings, with both attorneys and both parties present. Nothing happens in secret, and no one may threaten litigation, play games or take advantage.
 
The attorneys agree ahead of time NOT to file a contested divorce with the court. Rather, they agree in advance that they will withdraw from the case if it cannot be resolved out of court. This gives the attorneys a financial incentive to help resolve problems.
 
Q: What are the benefits and limitations of the collaborative process?
A: A collaborative process is less time-consuming, less expensive and less confrontational than a traditional adversarial divorce. Reducing such stress allows parties to focus on problem resolution. The parties’ lawyers represent their respective interests and can prepare all necessary paperwork, but the parties have more control over a collaborative settlement than a traditional divorce. The collaborative process is also more private than a contested divorce, which generates court filings, transcripts and hearings in open court. Where parties cannot work out differences, or do not value a negotiated solution, the collaborative process will probably not be effective.
 
Q: How do collaboration and mediation compare?
A: In divorce mediation, a neutral mediator meets with both parties to help them reconcile their differences, but provides no legal advice to either party. The mediator is not authorized to make any decisions on the parties’ behalf. Like collaboration, mediation works only when the parties intend to be reasonable and fair. Frequently, agreement on certain issues may be reached through mediation, while other issues are referred to a court proceeding or a binding arbitration. Mediators generally do not prepare court paperwork or appear in court with clients. Parties using mediation generally consult with their lawyers outside the mediation process. 

In collaboration, each party is fully and individually represented by legal counsel throughout the process. Collaborative attorneys can prepare all necessary paperwork and attend the required hearing where the divorce agreement is presented to the court for approval. The costs for collaboration and mediation are roughly comparable.
 
Q: How does collaborative law address technical issues like tax questions and property appraisals?
A: Most collaborative family law practice groups include non-lawyer members who are collaboratively trained financial professionals and can act as neutral advisors on tax and planning issues. Some groups also include, as adjunct members, licensed real estate appraisers who are committed to doing neutral appraisals so the divorcing couple does not have to pay for two appraisals as well as for two appraisers to argue in court.
 
Q: How does collaborative law tackle parenting issues?
A: Most collaborative family law practice groups also have non-lawyer members including psychologists, family counselors and child specialists or licensed independent social workers. Such an individual may act as a “coach” for a client who is struggling with the emotional side of a domestic case, or as a neutral child specialist who helps clients work out an effective, age-appropriate parenting plan.
Published in Practice Areas
Friday, 19 September 2014 00:00

Property Division

Behind child custody and alimony, another hotly contested part of divorce is deciding who gets what; dividing the property brought into the marriage as well as what you purchased jointly. Property covers both real property, such as your home, and personal property, such as household items or cars. Courts use many factors in deciding property division issues and final orders.

Community Property Division

In community property states, each spouse is generally entitled to half the property acquired during the marriage. This is the community property.

Not all property is community property. Spouses may have and keep their separate property. ''Separate property'' typically includes:

  • Property or businesses you owned before marriage
  • Gifts and inheritances received by you
  • Pension proceeds that vested before marriage

Ten states have community property laws. Alaska law allows couples to enter into community property agreements or a community property trust.

Equitable Distribution

In most other states, courts divide a couple's assets in an ''equitable'' (fair) manner, called equitable distribution. Equitable is what is fair to both spouses, and fair may not mean equal.

State laws give the factors courts use in deciding what is "equitable." Generally, factors include:

  • Marriage length
  • The work history and job prospects of each spouse
  • The physical and mental health of each spouse
  • The source of particular assets
  • The type of assets, and liquidity of the assets
  • Whether or not one spouse should keep the family home, or the right to live there for a time
  • Tax considerations

Property Settlement Agreements

If you and your spouse can agree on how to divide your assets, whether it follows your state's guidelines or not, your lawyers will write up a formal agreement called a ''property settlement agreement" or a "marital settlement agreement" (MSA), depending on your state's laws. Detailed lists of who gets what are included in this agreement.

Many states' laws spell out that a voluntary property settlement is preferred to having the court decide those issues. There's no way to predict or guarantee how a court will decide property division issues, so many couples prefer to work out a property settlement on their own.

Do read the property settlement agreement carefully, and ask your lawyer about anything you don't understand. Once an agreement is signed and approved by the court, it's likely be difficult and expensive to change.

 

Breaking Down Property Division Issues

Whether you and your spouse agree on a property settlement, or have the court decide the issues, a lot of work and planning goes into this part of your divorce. The basic step of completing a property inventory and planning for tax impacts are important.

Taking a Property Inventory

Before you can nail down a property settlement, you need a big picture of what your assets are. One of your first tasks, even if you're thinking about a divorce, is to make a property inventory. It's vital to list all property you and your spouse own. Don't try to hide assets as it will only complicate dividing your property.

Many lawyers have property checklists to help clients complete their inventories. You may be surprised about assets you may have forgotten about.

Tax Considerations

Generally, the property division in your divorce doesn't create tax consequences to worry about on your next tax return. The reason is that usually there's no federal tax gain or loss when a property transfer of is "incident to the divorce." This means that the transfer:

  • Happens within a year of the date the marriage ends, or
  • Is related to the end of your marriage

Further, for a transfer to be related to the end of a marriage, your divorce or separation decree must also provide for it, and it has to be done within six years of the end of the marriage.

Review possible tax impacts of your property division with your lawyer or accountant as you work towards the final terms.

Property Transfer After the Divorce

As soon as the property settlement is approved or the court finalizes the divorce, you'll want to take care of the details of the property transfer. This includes preparing and signing the documents needed to transfer ownership.

While it may be the last thing you want to do, taking care of these details will save future trouble and make it easier to gain closure on this chapter of your life.

Questions for Your Attorney

  • My spouse and I have moved a lot. Does that affect whether community property or equitable division methods are used to divide our assets?
  • Does my separate property lose its character if I use it to benefit my family? What if it's a major asset, such as the family home?
  • My spouse and I agreed to put much of the income we save into my spouse's 401(k) account. How will that factor into our property settlement agreement?
Published in Practice Areas

If you need to hire a lawyer in order to protect your rights, you may want to pay a visit to Quattrone Family Law. Your attorney will provide the personal attention that your case requires. We’re available to assist citizens of Tampa and nearby communities while they try to deal with a range of family law matters.

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