Most divorces concern issues such as temporary alimony, child support, child conservatorship (custody) and division of marital property and, in qualified cases, post divorce, spousal maintenance; these issues are considered common to divorce cases. Dissolutions may become more complex, and the issues less common, when the assets in dispute are of higher value. These types of situations are often called high-end divorce cases. These cases may concern numerous assets such as trusts, bank accounts, investments, stocks, bonds, inheritances or gifts. Also, joint business ownership between spouses may lead to complicated business and property valuation issues. Challenging property division issues may arise in high-end divorce cases as well, which may involve the division of real estate, pensions, 401ks, savings accounts, royalties, deferred compensation, executive bonuses, offshore accounts, hidden assets and other comingled assets. Often in community property states, issues of characterization as to the separate or community nature of these assets are in dispute.
If you are entering a divorce with complex issues, it is important to seek a lawyer knowledgeable in high-value divorce cases and the intricacies involved. When numerous assets are in dispute, there may be business and tax consequences that stem from a dissolution. For that reason, a financial planner (a certified financial planner in some states) may also be beneficial when dividing assets and determining what effect your divorce may have on your tax liabilities.
It is also important to know your options when seeking divorce. You may litigate your dissolution in court, but that may not be the most beneficial choice for you. Divorce settlements may also be reached through methods alternative to litigation, such as mediation or collaborative law.
Mediation
If you enter divorce litigation, you must present the facts of your case to the court. The facts of your case will include aspects of your personal and financial life that you may wish to keep private. However, once presented to the court, these aspects of your life may be available to the public. To prevent this from happening, divorce mediation may be a favorable alternative.
Parties who choose to mediate their divorce should be willing to negotiate with their spouse and reach a mutually acceptable agreement. This means that each party must be able to present his or her own opinions, demands and options to his or her spouse and listen to the other’s viewpoints in return. A mediator (trained third-party neutral) will be present to facilitate the discussion between the parties, create an environment where each party may convey his or her desires and concerns openly, and assist the parties in reaching a dissolution agreement.
Divorce mediation may have some drawbacks as well. The success of mediation is dependent on the parties involved. If one party has power over the other, a neutral environment is impossible and the mediation cannot continue. It is the mediator’s role to help create a neutral environment, but there is only so much he or she can do. Additionally, if the parties are not able to reach an agreement during the mediation, the mediator does not have the power to make a decision for them and the parties must enter litigation.
Collaborative Law
Like mediation, collaborative law is an out-of-court process conducted by trained attorneys with the use of neutrals to assist the parties and attorneys in reaching a divorce settlement agreement. However, unlike mediation, the collaborative law process is often administered by a team of neutral specialists chosen by the parties and their attorneys collaboratively and not just a single mediator. With the team approach, a specialist will give both the parties guidance on certain areas of dispute about which he or she has specific knowledge. Use of trained specialists is not a requirement; however, most parties use at least a financial planner, especially beneficial in a divorce involving high-value assets.
Prior to entering negotiations, each party must agree to participate in the process and treat each other with consideration and respect. Once negotiations begin, each party will have his or her own attorney during the process to protect his or her interests. There will be a series of meetings between the parties, their attorneys and the team of specialists to reach a mutually-agreed-upon divorce settlement. If an agreement cannot be made, the collaborative-law negotiation process cannot continue and the parties must enter litigation to resolve their divorce dispute with each then using new attorneys.
Conclusion
Although mediation and collaborative law are often beneficial in divorce matters, these alternative options may not be appropriate for all parties. There are times when the issues in dispute are too complex to be settled upon, the parties are not able to reach an agreement or the parties would not be able to sit in the same room to negotiate the disputed issues. In these types of situations, divorce litigation may be the best and only option. Prior to entering litigation, it is important to speak to an attorney knowledgeable in complex divorce issues to assist you during this process.
Article provided by Hammerle & Finley Law Firm.