By Emanuel Caiati Esq & Patricia Barrett
The traditional practice and procedures of divorce and child custody are adversarial by nature and run counter to the more productive cooperative method. Under the traditional practice, the spouses each hire an attorney to argue their respective viewpoints on any disputed issue regarding the division of property or the custody of children.
They each may hire expert consultants to produce a business evaluation, financial analysis or a custody evaluation using a “psychological profile.” This leads to the inevitable problem of “dueling” experts with differing opinions. The lawyers argue these positions in court, as the fees go higher and time drags on. Because of the litigation itself, animosity increases and the estate is depleted before it can be divided. Often overlooked is the mainstay of cooperative divorce — the important need to plan for a fair distribution of the assets and the proper consideration of financial security for each in the post-divorce years. The children may be in the middle of the dispute and awash in the harsher feelings that develop between their parents because of the litigation.
Ideally, under the cooperative method, attorneys, mental health professionals (MHP) and financial planners collaborate to develop a different, non-adversarial practice for divorce and child custody cases. Divorcing couples may come together to settle their case and resolve their differences in an atmosphere of cooperation and early mediation. After an initial consultation with the team, and in preparation for the mediation, the three disciplines each have a role:
The financial planner works up their inventory and helps with budgeting and long-term planning. Post-divorce financial issues are often a source of great anxiety and should be addressed carefully. This is done pre-mediation and may be revised during mediation.
If there are children, the MHP may work with the parties to create the parenting plan. The MHP is also able to provide personality testing to assist the individuals in resolving disagreements inherent in the divorce and to give them new tools for managing future relationships.
A mediator/attorney conducts the mediation and guides the parties to a settlement. He or she draws up the mediated settlement agreement to be signed as evidence of an agreement. Another attorney files the divorce, beginning the 60-day waiting period. He or she answers questions concerning legal issues. After the mediation is complete, this attorney writes the divorce decree and "proves up" in court accompanied by one of the parties. This is typically the only court involvement and takes only a few minutes in front of a judge.
The spouses may need to attend a second mediation session if difficult issues prevent settlement at the first. They are meeting with mediators to rationally discuss their concerns and develop reasonable, mutually satisfying solutions. Co-mediators can be financial planners, psychologists or family-law attorneys, each using the tools of their trade to facilitate each session and produce written agreements of the once-disputed issues.
The attorney is there to supply facts of law and will draw up the decree based on the mediated settlement agreement reached during these early mediations. The financial planner creates the spreadsheet to divide assets, bringing the previously completed planning spreadsheets and reviewing the long-term effect of a proposed settlement on each party. (This long-term analysis is optional.) The MHP acts as a communications coach, helping the parties to focus on the future instead of past blame or pain.
In this manner, divorcing couples save time and money and avoid the bitter arguments and harsh feelings that usually deplete the marital estate and destroy any hope for reasonable post-divorce co-parenting. Rather, in their post-divorce life, each spouse enjoys a fair-share of the divided assets, avoids becoming enemies with the ex-spouse, and the children benefit from an atmosphere of cooperation between their two parents.
The members of the Cooperative Divorces™ Practice group include: Patricia Barrett, CFP CDFA; Mediator, Manny Caiati; Attorney/Mediator, Mary Anne Knolle, Ph.D.; and Bruce Buskirk, Attorney. Following are three different scenarios in which Cooperative Divorces can serve to smooth the process and save money:
In the simplest case, the financial planner, working with a husband and wife, with no children, produces a binding settlement agreement dividing the marital estate during the early mediation.
A lawyer from the Cooperative practice group is hired by either one of the spouses to prepare a petition for divorce and file suit before, or at any time during, the settlement process. The lawyer will also prepare a waiver and a decree of divorce conforming to the settlement agreement. The lawyer and client present the final result to the court, using the uncontested docket to secure the final divorce.
It is understood that the other spouse will not hire a lawyer because of the high degree of confidence in the fair and equitable work of the financial planner and the soundness of the settlement.
In another scenario a family mediator may be hired by a divorcing couple to produce a binding settlement before suit is filed.
The couple has already worked with the financial professional to settle the marital estate or provide other financial analysis. (There may be one or more mediation sessions.) Then a lawyer from the practice group, hired by either one of the spouses, prepares the documents necessary to secure a divorce from a court.
In another scenario, a couple already in divorce litigation, may decide to begin a more cooperative process and hire co-mediators from the practice team to help facilitate a final agreement.
The co-mediator team may be comprised of an attorney mediator with either a financial planner or a psychologist. Each spouse may continue to retain their own attorney for advice and counsel.
In every case, and at any point in the process, the couple may choose to see the group’s psychologist to facilitate settlement or to begin the process leading to a healthy post-divorce lifestyle.
In any case involving children, the MHP/psychologist will provide valuable insight regarding the best interests of the children. Working with the psychologist, the couple can resolve all of the important issues of conservatorship and also develop a final post-divorce co-parenting plan.
The Cooperative Divorce Team
Emanuel Caiati, Esq
9950 Cypresswood Dr, Suite 200
Houston, TX 77070
Particia Barrett, CFP-CDFA-Mediator
Financial Planning & Analysis
10777 Westheimer, Suite 1100
Houston, TX 77042
Mary Anne Knolle, PhD
2539 S Gessner #24
Houston, TX 77063