You’ll Be Happier If You Paint with a Broad Brush

If you just focus on the smallest details, you never get the big picture right. – Leroy Hoodimages08SHK7HN

Settling your family law matter is a choice that belongs to you and your spouse. It does not belong to your attorney or to his attorney. It does not belong to the judge or to the mediator. Rather, like with all legal matters, the decision to settle is one that must be made by the clients.

But how? How can we reach agreement when we see things so differently?

In order to settle any case, the parties need to have a meeting of the minds; in other words, they must find a way to see eye to eye on the most important and salient aspects of their case. Not every case is one that can be settled even under the best of circumstances, i.e.., where both parties are acting in good faith and willing to compromise. Of course, there are also those cases in which one or both of the parties are not acting in good faith, pursuing an agenda of retribution for perceived wrongs or simply have utterly unrealistic expectations about what they are entitled to. But where the parties are both behaving reasonably, there are ways to increase your chances of reaching an amicable resolution. Here are a few:

Ask your attorney to be realistic with you. Good attorneys exercise client control and manage expectations. Their job is not to tell you what you want to hear but rather to tell you what you can expect. Don’t punish him or her for being honest with you. After all, attorneys are people too and are naturally inclined to want to avoid causing you discomfort or pain.

Be realistic with yourself. Sometimes it is difficult to know what we truly want. Divorce is usually a time of great turmoil and change. You may be re-entering the work force for the first time in a long time. You may be forced to assume responsibilities that have always been the province of your spouse. Regardless of what your future holds, give yourself time to decide what you truly want and try to structure your settlement to give you the best chance of reaching those goals. It does you no good to be unrealistic with yourself regarding what you are reasonably capable of doing given your particular circumstances.

Educate yourself. Your attorney should not be the only one doing the legwork in your case. In addition to deciding what you want, you need to decide how to get there. Talk to professionals other than your attorney to determine what your needs are and how to reach your long-term goals. For example, you might speak to a vocational counselor or a college admissions specialist to discuss what you will need to get reeducated to become self-sufficient or to further your career goals. Meet with a financial advisor to discuss your finances and budget. Having a clear understanding of the real life issues affecting your case will help you to structure an appropriate settlement. It will also help you justify the resolution you need to your spouse, a mediator or a judge.

Don’t let others tell you what you should want. People going through divorce often receive an overwhelming amount of advice from well-meaning friends and family. That information is often third-hand and generally incorrect. Smile, politely nod your head, thank them and then go talk to your attorney. Bad information leads to bad decisions and can inhibit the settlement process. Perhaps more importantly, don’t let society’s expectations or guilt govern your decisions. For example, if you cannot reasonably handle a 50/50 Parenting Plan, don’t ask for one.

Paint with a broad brush. Nowhere is the expression “don’t sweat the small stuff” more apropos than in divorce settlements. Try to avoid thinking only in terms of financial value; think also in terms of sentimental value and meaningfulness. Why fight for the big screen TV if having your old antique bed is more meaningful to you regardless of the relative values? Structure your settlement in a way that is designed to meet your needs even if doing so results in a slightly disparate division of your assets. Try to avoid fighting over percentages. After all, most people overstate the value of their personal property anyway so it is impossible to divide the marital estate with pinpoint accuracy without selling everything. More importantly, if you insist on dividing everything down to the last penny, the chances of resolving your case are slim.

Know your “range” and do the cost-benefit analysis. No lawyer can tell you exactly what a judge is going to do should you take your case to trial. A good lawyer recognizes that, because of the legal standards we work with, every case involves a range of possible reasonable outcomes. What is considered a “fair and equitable division” of a marital estate or in “the best interests” of your child will vary with each individual and depend largely upon factors that are impossible to predict. Your attorney should be able to instruct you as to whether a settlement offer is within the “range” of what the court might do. If the offer is outside of the range, settlement is unlikely. Nevertheless, you must always weigh a settlement offer against the cost — both financial and emotional — of going to court to find out if you can do better.

Only you can weigh the intangible benefit of getting it done. Divorce comes with a very high emotional price tag, both for you and for your children. There is a value to getting it done and over with. However, because this is a value that cannot be measured in dollars and cents, only you can weigh its value with regard to settlement. That said, you should not give away the farm just to get your case over with. You’ll wind up regretting it later.

Remember who you’re dealing with. If there is any chance at all, try to bear in mind that your ex-spouse-to-be was once your best friend. If you have children, try to remember that you will be dealing with him or her for the rest of your life in some fashion or another. You know each other’s hot buttons–try to avoid pushing them.

Advertisements
You’ll Be Happier If You Paint with a Broad Brush

Why Prenuptial Agreements Are Like Bike Helmets

One is not exposed to danger who, even when in safety is always on their guard.”

Publilius Syrus

I am occasionally asked by clients whether or not they should get a prenuptial agreement in the event that they remarry. Quite frankly, I’m surprised that more people don’t utilize them. I suppose it is because people who are about to get married don’t like talking about the possibility that they will not stay married. Some people are vehemently opposed to the very concept of a prenuptial agreement — usually, the people that express that opinion do not have a great deal to lose or have not been through a messy divorce.

The simple fact is that prenuptial agreements have a number of significant benefits and the mere fact that one or both of you desires to protect yourself in the event of a dissolution of your marriage, does not mean that you expect or plan to be divorced. Sort of like wearing a helmet does not mean that you plan to crash your bike.

Prenuptial agreements are most beneficial to parties who have significant assets to protect. They are also very attractive to parties who have previously been through an unpleasant, contentious and protracted divorce. However, premarital agreements may also be beneficial to parties who do not have significant wealth as the scope of possible subjects to be resolved by prenuptial agreement is broad and can include limitations on spousal support.

Properly crafted prenuptial agreements protect valuable or sentimental premarital and inherited property and clearly define the scope and nature of all premarital property of both parties. A prenuptial agreement can protect assets from the debts of a future spouse and protect your children’s inheritance. They can establish mechanisms for resolving future disputes, streamline and simplify divorce proceedings in the event that they do occur and reduce acrimony and cost.

Montana follows the Uniform Premarital Agreement Act. The UPAA requires that the Court actually enforce the terms of a validly executed a premarital agreement. Note that the same deference is not granted to similar agreements reached after the parties have already married. The UPAA allows parties to a premarital agreement to address a broad range of subjects including:

  1. the rights and obligations of each of the parties in any of the property of either or both of them, whenever and wherever acquired or located;
  2. the right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;
  3. the disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;
  4. the modification or elimination of spousal support;
  5. the making of a will, trust, or other arrangement to carry out the provisions of the agreement;
  6. the ownership rights in and disposition of the death benefit from a life insurance policy;
  7. the choice of law governing the construction of the agreement; and
  8. any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.

There are, of course, some limitations to what the parties can address in their agreement. For example, a premarital agreement cannot impact support of children. In addition, there are exceptions to the general rule that premarital agreements must be enforced by a Court and certain formalities in the preparation and execution of the agreement must be followed. For example, a prenuptial agreement will be set aside in the event that it was not voluntarily executed, if there was not a fair and reasonable disclosure of the assets at issue or the agreement is otherwise unconscionable.

In January 2012, the Montana Supreme Court decided In Re Marriage of Funk, a case that I believe makes the case for premarital agreements even more compelling. The primary issue in that case was a piece of real property that had been inherited by the husband. The wife was awarded a substantial interest in the property upon the parties’ divorce and the Montana Supreme Court affirmed, stating that the District Court was required to consider the “contributions of a homemaker” to the maintenance or preservation of what would otherwise be considered separate property. The Supreme Court went on to overrule about a bajillion (that’s a legal term) previous cases.

Most attorneys agree that Marriage of Funk did not really change the law. However, those same attorneys will cite to the Funk case when trying to argue in favor of granting a non-acquiring spouse an interest in the other party’s premarital or inherited property. A properly prepared and executed premarital agreement avoids any confusion or doubt.

True, premarital agreements are not exactly the most romantic thing to discuss before your wedding. However, marriage should not be about ownership of property and nothing in a prenuptial agreement prevents both parties from enjoying the benefits of property owned by either party. Opening the lines of communication about issues that are important to you is critical to a happy, honest and successful marriage.

Why Prenuptial Agreements Are Like Bike Helmets

What to expect at mediation.

“You cannot shake hands with a closed fist.”  –  Indira Gandhi

Mediation is an informal process by which legal disputes are negotiated (and, hopefully, resolved) through the use of a third-party neutral. Here in Gallatin County, the parties to any family law matter must attempt two mediations before the Court will set a trial date.

So what can you expect at mediation? Generally speaking, the mediator will be an attorney, preferably one with significant family law experience. I believe that it is critical to a successful mediation that the mediator have the experience to know the likely range of options available to the Court in any given situation so as to appropriately provide insight that might help resolve the case. Importantly, a mediator is not a representative of either party. The mediator’s sole purpose is to serve as an intermediary between the parties. Of course your attorney will also be present at mediation and you should always feel free to consult with him or her privately at any point during the mediation.

Mediators will often request that the parties start the mediation process together. Typically, they will ask the parties to make a brief presentation regarding the basic facts and the issues in dispute. There are different schools of thought on this subject. Personally, I never start mediations with the parties in the same room.

screen-shot-2012-02-13-at-1-45-53-pm.

There are a number of reasons for this. First, family law matters tend to involve emotionally-charged issues and it is often difficult for parties to keep their emotions under control when directly confronting their ex-spouse. I want my clients to be able to relax during mediation and to be able to present their case to the mediator without feeling constrained in any way.

Second, marriages all have dynamics, some of which may have led to the failure of the marriage. The last thing I want is for that dynamic to carry itself into the mediation. For example, if the other side is a bit of a bully, I do not want my client to feel that same dynamic during the mediation process.

Finally, starting –and staying — separate during the mediation prevents either party from blustering, behaving aggressively  or attempting to intimidate  the other side. I believe that the parties become more realistic and get down to business a lot faster when they do not feel the need to posture in front of the other party or their attorney

If you do start out in the same room, make sure that you behave yourself.  Allow the other side to present his or her case without interrupting and by all means listen to what they are saying –you might  gain some insight that will help  settle the case. Don’t roll your eyes or make disparaging sounds or remarks. When it is your turn to speak, breast your cards  and save your arguments until  you are alone with the mediator.

There are two main rules to remember during mediation. First, what happens in mediation stays in mediation; in other words,  no offers or proposals made at mediation will ever show up in front of the Court. Any settlement positions expressed at mediation are inadmissible under the Rules of Evidence. The obvious purpose of this rule is to allow the parties to “think outside the box” with regard to settlement options without the fear that their proposals will somehow come back to haunt them should they be unable to resolve their case.

The second rule of mediation is that the decision to settle the case belongs to the parties. What I mean by that is that neither party can force the other party into a settlement. The mediator is not a judge and cannot make decisions for the parties. Your attorney cannot force you to settle; he or she can only give you advice regarding what the Court would likely do under your particular fact pattern. In the end, the decision to settle or not settle always belongs to the client. After all, it’s your life.

Prior to mediation  you should have some idea of your settlement parameters . In other words, you should have some idea of what you’re willing to accept and, perhaps more importantly, what you will not accept. No one can predict with 100% accuracy what a Court will do. Accordingly, you will have to decide whether you are willing to “paint with a broad brush”  and work towards a resolution that is generally acceptable or whether you will insist on pursuing exacting detail  in your settlement discussions. I have found that most people are happier crafting settlements that get them the things that are important and have meaning to them rather than worrying about whether or not they have divided the household furnishings with exacting  economic precision.

Generally, the mediation starts by  the mediator  explaining his or her role  in the process, the basic rules of conduct and the limitations on his or her authority. If the client feels comfortable, he or she will explain to the mediator the basic facts of the case, describe the contested issues and, perhaps, propose an acceptable resolution. If the client is uncomfortable speaking, the attorney will  step in and explain to the mediator the basic issues for mediation. Typically, as the process continues even the shyest of clients relax and become more vocal in the process.

Be sure that  the mediator understands what he or she is allowed to communicate to the other side. Most mediators are pretty good at being able to determine what is fair game to discuss with the other party but if there is any doubt, make sure to speak up and tell the mediator that he or she is not allowed to communicate a particular fact, position or opinion to the other side.

Once the mediator has a good grasp on the facts and your position, he or she will head off to the other room to discuss the same issues with the other party.  The mediator will go back and forth between the rooms until a resolution is reached or it becomes clear  that no resolution is possible. Bring a book– there is often a lot of time during which you will be sitting alone  or with your attorney just waiting for the mediator to come back.

Try to remember that the mediator has far more information than you do since he or she has heard from both sides. As such,  you should let the mediator determine when the mediation is hopeless and should end. Even if mediation is unsuccessful, it is valuable in many ways. For example, mediation often serves to identify those areas where the parties have agreement and where they have disputes allowing the parties to focus their future efforts exclusively on contested matters. Mediation also serves to identify those areas where additional information is needed, such as an appraisal or business valuation  thereby allowing the attorneys to focus discovery efforts on obtaining that missing information. Perhaps most importantly, mediation will  give your attorney insight  into the other parties’ legal and factual positions.

What to expect at mediation.