New Hampshire Bar Journal
2005 Summer, 48.
Dispute Resolution Options in Divorce and Custody Cases
New Hampshire Bar Journal Volume 46, No. 2, Pg. 48 Summer 2005 Dispute Resolution Options in Divorce and Custody Cases Bar Journal Author - Attorney Honey Hastings
Until 1971, divorce was definitely a "litigation" practice like torts. From 1791 to 1971, getting a divorce required proving a fault ground. In the last 35 years, the approach to divorce in New Hampshire's statutes, courts, and by lawyers has substantially changed.(fn1)
By 2005, divorce has increasingly become a "transactional" or office practice.(fn2) The addition of "no-fault" grounds in 1971 was the first step in this change.(fn3) The 1980s and 1990s saw a growing number of self-represented parties,(fn4) the institution of child support guidelines,(fn5) and the codification of property division and alimony law.(fn6) More recently, the evolution to a transactional area of practice has been aided by the acceptance of alternate dispute resolution processes, and by the adoption of the family court system.(fn7) As the Supervisory Judge of the Family Division has said, "The core of the family division is to reduce the adversarial nature of proceedings involving families and to provide community-based courts where these cases can be handled on a consistent basis."(fn8)
More changes are coming. The Task Force on Family Law report calls for a change in the "culture of divorce."(fn9) Chief Justice John T. Broderick, Jr., told the General Court, "In my judgment we also need to fundamentally rethink how divorce is handled in our courts. Taking spouses and children in stress and forcing them into an adversarial system, with no other meaningful alternative, is neither economically sound nor socially beneficial."(fn10)
The First Decision in Divorce and in Cases Involving Minor Children
Potential clients consulting a lawyer for the first time are anxious to talk about issues such as their time with the children, who gets the house, and how the 401(k) gets divided. But there is an initial decision that must be made before any of these are resolved - the choice of decision-making method.
Families facing divorce or allocation of parental rights(fn11) cases have several options for resolving the issues(fn12) between them, including:
Negotiation through Lawyers
These options occupy a continuum from, on the one end, complete autonomy of the couple in making decisions without professional input (direct negotiation) to, on the other end, the couple having no control over the decisions as they are made by a judicial officer (litigation). Approximately 80 percent of divorces settle by one or more of the non-litigation methods. Of the rest, approximately 10 percent are defaulted and 10 percent are litigated.
Chief Justice Broderick has called for a divorce system with "many off-ramps," with litigation as the last choice.(fn13) The options listed above match his description. The Task Force on Family Law has called for lawyers to:
Serve as 'counsel' not just as advocates for their clients, helping to identify other alternatives to highly contentious litigation, whenever possible.... Our recommendations aim to foster an environment in which more parties are empowered to actively participate in their important decision-making rather than have a judge or master make the final determination for them.(fn14)
Summary of the Decision-Making Options
In direct negotiation, the parties use face-to-face meetings, phone, or E-mail to discuss the restructuring of the family and the specific issues required by the court to be covered in an agreement. While direct negotiation offers autonomy, it necessitates working with the spouse or other parent, without the assistance of a professional. Given the emotional stresses common to people facing divorce or separation, many couples find it impossible to work out all issues directly.
Mediation is described as "assisted negotiation."(fn15) A trained person facilitates the negotiations between the parties in a series of face-to-face meetings. The negotiation method is generally "interest-based," rather than "positional bargaining."(fn16) In the model generally used in New Hampshire divorce and allocation of parental rights cases, lawyers are not present, but are used as consultants or "coaches" to provide legal advice between mediation sessions and to review the draft agreement.(fn17)
Collaborative practice, also called collaborative law, uses specially trained lawyers(fn18) representing each party. This collaborative training focuses on how "to help the parties engage in creative problem-solving aimed at reaching a negotiated agreement, that meets the legitimate needs of both parties."(fn19) Key to this is a commitment not to litigate.(fn20) Negotiations are conducted in four-way meetings with the lawyers facilitating. As in mediation, "interest-based" negotiation is commonly used.
Negotiation between lawyers is the traditional method of resolving divorce and parenting issues, and is still the most-frequently-used method in New Hampshire. Information and proposals are exchanged, usually by mail or electronically. Each lawyer-client team works together and makes or responds to proposals until all issues are settled.
With the increasing number of self-represented parties, negotiation with only one lawyer on the case is becoming more common. Negotiating with an unrepresented party has its special challenges, which will be discussed below.
In neutral evaluation,(fn21) an experienced lawyer hears the arguments of both sides and tries to settle the case. Usually this involves "shuttle diplomacy,"(fn22) with the evaluator meeting with each lawyer-client team separately. The evaluator gives his or her opinion of the results if the case were litigated, to encourage settlement.
Parenting coordination is a method of making minor child-related decisions,(fn23) rather than answering questions such as "where does the child live?" or "shall the child go to private school?" A parenting coordinator is appointed by the court to mediate small decisions, often those related to implementing an order or agreed-on parenting plan.(fn24) If mediation does not resolve the issue, the parenting coordinator makes the decision.(fn25)
In litigation, the couples have no control over the decisions for their families. The judge or master decides all disputed issues. Litigation as an option will not be explored in this article, but each of the other decision-making options will be discussed in greater detail.
Information Before Decisions
Whatever method of decision-making is chosen, certain information is needed before proceeding:
List of issues to be resolved
The law and legal advice as to how it would apply in each party's situation
Assets and values (divorce or legal separation only)
Income and expenses
Child development basics (if there are minor children)
The court's outline of standard paragraphs (fn26) is a good basic list of the issues in a divorce. If there are minor children, more detail than the standard paragraphs require is needed for the parenting schedule.(fn27)
Each of the parties should have legal advice before starting to make decisions. This is especially important if they are using direct negotiation or mediation. Legal advice is both a preparation for negotiation and protection against poor decisions. Many people facing divorce have mistaken ideas about legal basics. For example, some believe that a pension goes to the employee spouse,(fn28) or that sole decision-making responsibility is a likely outcome.(fn29)
An hour with a lawyer can provide both legal information and legal advice before beginning direct negotiation or mediation. Some clients using one of these methods retain a lawyer to advise them between negotiation or mediation sessions. Such representation is often on an unbundled(fn30) or limited legal services(fn31) basis.
A list of assets and their values is essential for property division using any method. Compiling this list usually includes assembling current statements of retirement plans, investments, and bank accounts. Either the parties must agree on the values of the home, other real estate, and vehicles, or they need market analyses, appraisals, or "blue book" values to establish values. The court financial affidavit form(fn32) is a good way to assemble the list of assets, values, and any debts against the assets.
Income and monthly expense information is needed to calculate child support, discuss alimony, and consider any request to vary from the presumption of equal division of property. Again, the court's financial affidavit form is a good starting place as it has a detailed list of possible income sources. It also requires listing all the expenses that are factored in a Guidelines(fn33) child support calculation.
A good way for parties to get the child development basics is to attend the Child Impact Seminar(fn34) before any decision-making.(fn35) This seminar is required for parties with minor children, but is often attended later in the process, after some or all decisions have been made. There are also excellent books on children and divorce.(fn36) Another approach is for the parents to meet with a child psychologist or other child expert to discuss the needs of their child or children.(fn37)