Mediation NEWS/BLOGS ARCHIVE


BUSINESS OWNERS AND DIVORCE: Valuing a Business in Divorce

August 1, 2018 by Kathryn Lazar

CONTROLLING COST AND CONTENTION AROUND EXPERT APPRAISALS

When your divorce involves a business owned by you or your spouse, or you and your spouse, the value of the business will most likely figure in the divorce. If you and your spouse disagree on the value of the business (which is often the case when one of you is buying the other out or when one spouse is to be paid a portion of the business’s value), the disputed value may be resolved by engaging a third party expert to calculate what the business is worth. This is called appraisal. Appraisal methods are several; these alternatives are themselves the subjects of many articles (Google “different ways to value a business”). This post focuses not on appraisal methodologies, but on ways divorcing parties can commission a fair appraisal in a way that is economical.

A scenario to be avoided is “expert opinion versus expert opinion,” where each of the parties in a litigated divorce hires an appraiser, the resulting appraisals are materially discrepant, and each appraiser must testify to explain his/her calculation. This can be avoided by hiring one appraiser who meets with both spouses to understand the perspective of each. Critical in this approach is to oblige the appraiser to be neutral, not favoring either party. This reduces conflict, stress and expense.

Another way divorcing parties can control expense is by choosing the type of report they want from the appraiser. Oral reports typically cost less than written reports.

Before starting work, the appraiser should be available to sit down with the parties and their lawyers to discuss any concerns they may have. Such concerns might include the valuation method to be used — one method might be more appropriate than another for a particular business — and any special considerations that might affect value.

The above approach can be implemented in a litigated divorce but is more common in a collaborative or mediated divorce, where the parties’ objective is to find a mutually acceptable result. What is more, appraisers generally charge less for their work in a collaborative or mediated divorce because they know that they will not be called upon to testify in court, which is very time consuming.

 

CUSTODY: Trying to work out parenting plan works in your favor

May 10, 2018 by Kathryn Lazar

CUSTODY ARRANGEMENTS:  BEING ACCOMMODATING WHEN CHOOSING YOUR PARENTING PLAN DOESN’T PREJUDICE YOUR RIGHTS IN LITIGATION

 

A mediation colleague recently blogged about the advantages of  mediation over litigated divorce in working out the right parenting plan for your child or children. One advantage of mediation (which advantage is also present in collaborative divorce cases) is that couples can test tentative parenting plans –  meaning, they can try out one arrangement, see how it works, and tweak it to best meet the needs of their children.  Because, in mediation, the couple controls the process, they can space out their meetings to allow for this testing, and then adjust the agreement accordingly.   The author also points out that, should spouses end up in litigation rather than at the mediation table, they don’t prejudice their rights in litigation by having been accommodating and working together amicably on their parenting plan. http://www.susan-ingram.com/2016/01/finding-the-parenting-plan-that-is-the-right-fit/

This might surprise people who haven’t been in the court:  Judges respect parents who are willing to support the relationship between the other parent and the child.  There are many court decisions in which the accommodating parent has an advantage over the more difficult parent.  The Court’s perspective is fairly child-focussed; the Judges often state that the children are entitled to the love and affection of both parents, and take into consideration any acts in which either parent is interfering with the child’s connection with the other parent.  In fact, most custody cases are won because of the positive attributes of one parent over the other, not the negative things people say about the other. If you are concerned about custody and visitation issues,  please raise all your concerns with your lawyer — we have a lot of experience dealing with these kinds of cases, and can help you understand the best approach to protecting your children’s interests. 

 

MEDIATION – Can I also have my own attorney?

January 5, 2018 by Brett Jones

The title of the children’s book It Takes a Village could apply just as easily to divorce. Psychologists, social workers and financial advisors all have perspectives that may be useful to divorcing spouses, and many practitioners in these disciplines have successful businesses as divorce coaches. However, one profession that’s often overlooked when choosing a coach is lawyers.

 

Most people think of lawyers as adversarial only. If a divorce is acrimonious, it’s common to want the “meanest matrimonial lawyer, one who eats raw meat for breakfast.” This is a stereotype, one that’s largely outdated and often ineffective. Increasingly, divorcing spouses are looking for better process options to divorce, including mediation.  Can a spouse in mediation also have their own attorney?  Does the attorney participate in the mediation?  How would this work?

 

We are often asked to coach parties through mediation which they’ve chosen as their divorce process.   This may help a spouse to feel more “protected”, and provides a spouse with their own attorney to provide legal advice and guide them through each step of the mediation process.  For example, the couple has reached agreement on a parenting plan, division of their household goods and who will pay for medical insurance coverage, but they’re stuck on division of a pension or a 401k. They’re not stuck because they disagree; they’re stuck because they don’t know if what they’re asking for is reasonable. They may experience diminished trust in each other and may be concerned they’ll be taken advantage of. Mediation has enabled them to agree on many things but progress has slowed because one or both parties, feeling uncertain, find themselves hesitant to discuss a few remaining issues. A lawyer as coach can jar these situations loose by providing knowledge and perspective.

 

To optimize a lawyer as your divorce coach, it works best to have the lawyer on board during all or most of the mediation. This does not mean your lawyer/coach needs to accompany you to every mediation session, although s/he can. Most times, lawyer/coaches are consulted between mediation sessions if a divorcing spouse has a legal question. Good mediators encourage this (though many mediators are lawyers, they would be ethically compromised by giving legal advice to either party in mediation). Therefore, if a legal question arises in the course of mediation, one or both parties may wish to check with their respective lawyer/coach between sessions. If you do not engage a lawyer/coach for the duration of the mediation, you can bring one into the process at any time.

 

One or both parties in divorce mediation may be coached by a lawyer. Lawyers who excel in this role are collaborative without being overly concessive, and have a grasp of the overall settlement picture. Experience in the role also counts for a lot. Lawyers whose experience is exclusively as an adversary or litigator may not adjust readily to representing or coaching clients who choose mediation for their divorce. A lawyer/coach must recognize that a client may be well satisfied without cleaning the spouse’s clock, so to speak; divorce settlement need not be punishing to work well.

 

We have coached a number of parties who’ve chosen mediation. Not only has it been helpful in expediting divorce, it’s also more economical and less adversarial. The experience has been not only effective but satisfying for lawyer/coach and client/coachee.

 

Kindness During Divorce

February 1, 2016 by Brett Jones

YOU CAN’T GO WRONG BEING KIND IN DIVORCE — OR CAN YOU?

Many couples begin their divorces hoping for a kind and amicable process. Opposing views on this are expressed in these two articles.

You, your children, your spouse, even your family and friends may all benefit from kindness during your divorce process. You might not expect that perspective from a lawyer whose motto is “peace through superior firepower,” but he’s right. James Sexton’s article, Kindness During Divorce, is one view.

Nearly diametrical is 12 Hard Truths I Was Forced to Learn Through My Divorce in First Wives World (truth #5).

These perspectives are their authors’ truths. Unfortunately, there’s not just one. Google “kindness in divorce” and you’ll find a full array of experiences.

Be sure that encouraging kindness during the divorce process does not mean that your attorney will not zealously advocate for your rights and desires as is required under the Rules of Professional Conduct which govern the practice of law. However, kindness around the divorce process can go a long way to securing a satisfactory agreement while helping to keep your sanity through one of the biggest transitions that you and your family may go through.

 

Comparing the Costs of Divorce: Mediation vs. Collaborative vs. Litigation

July 22, 2014 by Kathryn Lazar

A recent article on the MSNBC website entitled More Couples Seeking Kinder, Gentler Divorces reports on an interesting study which compares the costs involved in mediated, collaborative and litigated divorces. The study was prepared by the Boston Law Collaborative and analyzed 199 of its recent divorce cases.

They found that while mediation, collaborative divorce and litigation all produced high rates of successful settlement mediation was by far the least expensive option. We have found that couples that use our office for mediation pay far less than those in Boston — our median cost is approximately $3,500.00 per couple to reach a complete and binding agreement.

Comparison of Divorce Costs in Boston Report:

  • • Mediation had a median cost of $6,600,
  • • Collaborative Divorce: $19,723
  • • Settlements negotiated by rival lawyers; $26,830
  • • Full-scale litigation: $77,746

In mediation, divorcing couples entrust a resolution to a single neutral mediator.  Collaborative divorce involves the use of attorneys for each party, often joined by other expert consultants. But the lawyers, instead of sparring, pledge from the outset to avoid court and work together in crafting an outcome that is fair to all.

Mediation offers couples an opportunity to separate with a minimum of the anger and animosity that is often heightened during a divorce. Divorce mediation enables the participants to retain control of the process. Full and honest disclosure of assets and liabilities, income and expenses is required. This is critically necessary as the basis for an informed, binding and enforceable agreement.

The growth of mediation and collaborative law as a means of settlement is part of a broader trend away from courtroom divorce proceedings. Even members of the American Academy of Matrimonial Lawyers, who serve a relatively affluent clientele who are divorcing, reported in a recent survey that increasing numbers of cases are being settled before trial.

 

Writing up My Own Divorce Agreement is Simple, Right? Wrong.

September 30, 2013 by Brett Jones

Improperly Drafted Agreements Can Cause Chaos And Great Expense for Years to Come

Do you want to spend thousands of dollars in court fighting over a mistake contained in your divorce agreement?   Do you want to be fighting with your spouse years later, as a result of a poorly written agreement or the failure to include required statutory language?   Do you want to put yourself and your children through a lengthy court battle because your agreement did not sufficiently protect you?   Do you want to lose out on substantial sums of money, not to mention the money to pay your lawyers as a result of a divorce agreement you wrote?  Here  are just a few examples of potential situations that could arise if your agreement is not properly prepared  by knowledgeable and experienced attorneys.

1.    If your agreement does not include all of the necessary language for dividing retirement assets including pensions, 401k accounts, and 403(b) accounts, among others,  you could lose out on substantial sums of money, such as growth on your share of the account, growth on separate funds contained in those accounts, and, should your spouse(if the employee) predecease you, the retirement asset could be lost forever, leaving the non-employee spouse without their interest in the retirement asset, and no recourse.

2.    When distributing a home, if you do not include all of the necessary language regarding ownership, expenses, the mortgage, and any transfer of ownership,  you could, by example,  be stuck on the mortgage with you spouse remaining in the home, and not able to obtain your interest in that asset.   And, there is nothing a court can do to help you.

3.    Child support provisions and college provisions create a great deal of post judgment litigation, especially when there original agreement was not carefully prepared with the necessary language.   It could be 10 or more years later and you can still be hit with a substantial judgment for money.   Say, you and your ex-spouse decide to reduce the amount of support, by verbal agreement,  but never put it in writing.   Your spouse could later go after you for the difference, and would most likely succeed.

4.     Did you know that a business is an asset that the non-owner spouse has the right to value?    How is this accomplished and what needs to be in your agreement?

5.    Did you know that degrees and licenses obtained during the marriage are assets subject to valuation and distribution as part of the divorce.  How is this accomplished and what needs to be in your agreement?

For any number of reasons,  saving money, avoiding the dreaded  court experience, or trying to remain amicable, people take it upon themselves to write their own settlement agreements and divorce papers, or post judgment of divorce agreements.    While there are  plenty of web sites on the internet that offer information on preparing your own divorce agreements, those sites do not come close to telling you everything you need to know to protect yourself.      If your settlement agreement or divorce judgment, or post judgment agreements are not very carefully written, not carefully crafted to hit on all the points it needs to, in just the right way,  it could create the very situations you were trying to avoid.   It could cause complete chaos in your life.  If could lead to lengthy and very costly court battles  and ultimately, it could cost you substantial sums of money.

We thoroughly understand the difficulties that come with going through what can be a very emotional and difficult time in your life.   While nothing is guaranteed, we have the experience and offer the services to help protect you and your children now and in the future.  Please contact us at Lazar and Schwartz, to set up a consultation with Kathryn, Brett, or Melissa.

 

How Do We Break The News To Our Children?

August 7, 2013 by Melissa Rutkoske

An often asked question when couples have made the decision to separate is “What do we tell the kids? ” There are child therapists skilled in these matters, and seeking their assistance may help you with how to approach your children, but ultimately, the difficult job is yours. While your children deserve a well thought out script, you must also know that there is no “perfect” explanation.

The following, taken from The Truth About Children and Divorce, by Robert E. Emery, Ph. D., should help to guide you through this conversation:

(1) Be loving. This is a time of intense uncertainty for the children. Both parents must reassure the children of their love for them throughout the conversation.

(2) Be open. The children deserve an explanation about why this is happening and that they are allowed to feel however they are feeling, be it sad, relieved, angry, or any other feeling.

(3) Be honest. Your explanations should be accurate, age appropriate, and understandable to all children, regardless of age.

(4) Follow up. Older children will require more explanation and answers. Follow up with them privately, and make it clear that you are trusting them with more details, which should not be shared with the younger children.

(5) Watch your body language. Almost as important as what you say is what you do. Be careful of this when the other parent is speaking or your child responds in an emotional way.

(6) Be brief. Include only a limited amount of personal details, even with older children.

(7) Be patient. Expect that this will take time to sink in and for them to deal with. They will be seeking emotional understanding which takes more time than intellectual understanding.

(8) Encourage questions. They are sure to have some, maybe not right at the moment, but in time. Be available to them, but do not press them for questions. Know that you will most likely be talking about this topic again and again, and as they mature, their questions will become more sophisticated and your answers should match that level of sophistication.

(9) Predict the who, what, when. Be sure to tell your children the details of how life will look in the future for them. They will want to know the practical implications that this separation will have on them.

(10) Accept. You have limited control over your children’s reactions, no matter how well or much you tell them.

 

 

 

Kathryn Lazar selected to present advanced workshop at International Conference

October 4, 2013 by Kathryn Lazar

The International Academy of Collaborative Practitioners is having its annual meeting in San Antonio this October, and has selected Kathryn to present an advanced workshop called “Creativity Through Comparative Law”.  One of the distinctive features of collaborative divorce is that each couple gets to fashion its own solutions, not bound by state law.  However, lawyers are used to applying their own law, and often refer to their client’s batna (best alternative to a negotiated agreement) as their reference point.  Experienced collaborative divorce lawyers need to have a rich understanding of the law in many different jurisdictions.

In this workshop, Kathryn will lead a discussion comparing the divorce law in many of the United States, Australia, Canada and England.  Given that there are over 6,000 experienced practitioners from all over the world who are anticipated to attend the workshop, it is a great honor to be selected as a teacher.  Kathryn is very much looking forward to this opportunity to assist others in enlarging their sense of what is possible.