Friday, April 18, 2008

I Don't Want to Lose My Lawyer

One of the most common complaints about Collaborative Law is that if the process breaks down, both attorneys will have to withdraw. Some parties spend a considerable amount of time selecting an attorney. They may rely on the advice and information offered by friends or trusted advisers. They may have researched quite a bit on the Internet. After hearing how experienced, effective and knowledgeable an attorney is, a client often is reluctant to agree to a process that could not only fail, but which could cost the chosen attorney.

In a similar vein, after starting work on a file, many attorneys are reluctant to agree to withdraw from representing a good client just because the negotiations were unsuccessful. Sometimes, the failure to reach an agreement is the fault of the other party. Either way, it may not seem "fair" to have to withdraw.

As an attorney, I certainly understand the discomfort in agreeing to possibly withdraw, and I can sure understand how many clients feel. Nevertheless, as much as I would like to think that I am indispensable, I have to admit that there are many other quality attorneys with plenty of knowledge and experience who can more than just adequately represent my client. In other words, the biggest potential loss may be for me to lose a client. Intellectually, I know I am clearly replaceable. There are many fine attorneys available who can litigate a case if needed. I just hate to lose the business, and I think that is generally true for all attorneys.

Actually, my opinion is that the withdrawal requirement is one of the best mechanisms to help ensure success in the Collaborative process. The fact that both the attorney and the client have a lot to lose creates an incentive to negotiate seriously, in good faith, and not give up. It is very easy to reach a point of disagreement and have one party or both get tired of arguing and say, "If you don't agree to this, I'll just take you to court and let the judge decide." Fortunately, that's not an option in a Collaborative Law case. Instead of just punting an issue to a judge, the choices are to become creative and find new solutions or go out and hire new lawyers so you can go to court.

As a result, the great majority of Collaborative Law cases are successful in reaching agreement. The logical sequence of setting/defining goals, gathering information, brainstorming and then negotiating to reach an agreement is very successful. Collaborative cases also encourage the creative use of other resources, such as neutral experts for various issues. In Collaborative Law cases, the parties are not bound by the "standard" approaches or guidelines. In fact, they are encouraged to think outside the box and to try other unique solutions.

The bottom line is that attorney withdrawal provision in the Collaborative agreement is one of the most important reasons why the process works. It provides the best incentive for both clients and attorneys to work together effective to solve the marital problems.

Tuesday, April 8, 2008

Save Your Marriage with a Postnuptial Agreement

In a post yesterday, Sam Hassler, who writes the excellent Indiana Divorce & Family Law Blog, wrote about postnuptial agreements again. These are agreements that are signed during a marriage which divide some or all of the property and debts of the spouses. They can specify who controls various assets and who is responsible for various decisions. The agreements can also cover assets and income that may be acquired in the future. There are many things that can be done with such an agreement and just as many purposes for creating them.

Sam referred to an article in that discussed a benefit of postnuptial agreements that isn't often discussed. It mentioned a case where a husband and wife could not agree on significant debt and property issues to the point that their marriage was under a strain. That is not an unusual situation. Rather than get a divorce, however, they decided to do a postnuptial agreement. It was one of the best things they could have done.

As the article noted,

" 'In cases where couples want to stay married, it can apply very efficiently,' says Cambridge, Massachusetts, attorney John A. Fiske. 'If they don't want to stay married, it's hopeless.'
"The Boston couple, who had been married 30 years, fell in the former camp. Fiske helped them put into writing a mutually acceptable financial plan. They agreed to transfer their house into the wife's name, both to address her fear of losing the asset and to insulate it from the husband's business debts, and to split the mortgage and other household expenses.
"That was 18 months ago, and they credit the post-nuptial agreement with helping them become a mutually supportive couple again."

The CNN article actually talks about mediation, but Collaborative Law would work very well in this situation. Using the Texas model, we would bring in a neutral financial advisor to help both parties find beneficial ways to meet their needs and goals. Each party would have his or her own attorney to make sure the process worked to everyone's advantage. There have been cases in Texas where the parties started a divorce proceeding and later switched to working out a postnuptial agreement when they realized that they still wanted or needed to be married, even though there were some significant financial issues that were splitting them apart. In such a situation, the Collaborative process is a great way to create a new financial arrangement between spouses and possibly save a marriage.