Collaborative Divorce
Posted by: Katharine Maddox
July 28, 2009
Topic: Collaborative Divorce

Collaborative law is not for every family. However, it can be a wonderful solution for many families and can serve to move cases from being "high conflict" to "low conflict."

Collaborative law involves working together with your spouse to reach an outcome that benefits your family as a whole. As opposed to litigation, the goal is not to beat the other side and obtain an individual win, rather it is to find a solution that benefits both parties and the family as a whole.

Most collaborative cases involve any number of outside professionals: 2 attorneys (1 representing each spouse), an independent financial neutral who is available to advise the parties on financial matters and implications of various financial settlements, "coaches" or therapists for each party, and a child therapist. The Collaborative process does not always include all of the listed professionals, but it frequently does.

Many people worry that by agreeing to the collaborative process they will ultimately spend more money on fees than if they pursued the traditional litigation model due to the number of professionals involved. However, this is often not the case inasmuch as litigation can involve substantial discovery, countless preliminary hearings and motions, 2 full trials (custody and equitable distribution trials wherein various third-party experts might testify), which trials may be followed by appeals to the Virginia Court of Appeals, and thereafter occasionally to the Virginia Supreme Court.

Two examples where the involvement of the financial neutral could considerably reduce costs is where the is a marital house and/or marital business at issue. Instead of hiring dueling experts to value the assets, taking requisite depositions and then litigating the matter, the parties work together to agree on the values with the aid of neutral financial expert trained in such valuation.

In addition, instead of each party having to figure out how they will pay their attorney and expert fees on their own, the parties work together to figure out how fees will be paid for the collaborative process (whether through loans, using a marital bank account or selling a marital asset, etc) so that the collaborative process may continue. Once the parties have decided to go the collaborative route, it benefits both parties to ensure that each of them is able to pay their portion of the fees.

Another significant benefit is that where children are involved, a child therapist is often part of the collaborative team. The therapist will meet with the parties and the children to assist the parents in reaching a parenting plan and time sharing schedule which takes the children's needs, development and best interests into consideration.

An additional benefit is the complete confidentiality/privacy over the terms of the divorce. In the traditional litigation model, each party files a Complaint for Divorce (often based on fault) and other pleadings, all of which are public record and which may be accessed by any interested third parties. In the collaborative process, only the professionals working on the case know what he case is about; after the case is settled, the documents filed with the court will all be "no-fault" based. In essence, the parties' "dirty laundry" and financial details will not be shared with the public at large.

One of the biggest benefits of the collaborative process is that there is no one-size-fits-all outcome. Each family is unique, and the family works together to reach a unique nuanced outcome that best serves their family. Such outcomes may not even be options if the case were litigated.

All of that said, there are important potential down sides to be aware of when deciding whether or not to choose the collaborative process. The first is that both sides must agree to proceed with the collaborative process instead of litigation. If both parties initially agree, and one party later changes his/her mind, the entire collaborative process falls apart. If collaboration has to end due to one party no longer wishing to continue with it, both parties are required to find new attorneys in order to proceed with litigation. This is probably the single biggest criticism that people have about collaboration: The requirement that if the collaborative process breaks down, both parties need to hire new, independent counsel to proceed with their case. Based upon a Collaborative Practice training session I attended earlier this year, the statistical rates for the outcome of collaboration are as follows: 4% of people reconcile; 10% of the parties terminate the process and must hire new attorneys, and 86% of the parties reach a binding settlement through collaboration.

If you are interested in pursuing a collaborative divorce as opposed to litigation, you can find a list of professionals trained in collaboration here: http://www.vacollaborativepractice.com/

If you would like more information on the collaborative process, this book comes highly recommended by several collaborative professionals: Collaborative Divorce: The Revolutionary New Way to Restructure Your Family, Resolve Legal Issues, and Move on with Your Life by Pauline H. Tesler & Paggy Thompson.

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Domestic Violence: My Experience and the Tools for Safety
Posted by: Morgan Cox
July 20, 2009
Topic: Domestic Violence: My Experience and the Tools for Safety

My experience working with victims of domestic violence started during my time in law school. I volunteered to babysit for a women's shelter so that the women could have a night out. My goal for the evening was to incite creativity in the children and bring them into a fairytale world with me so that they too could have an evening away from the overcrowded and highly emotional charged environment in which they lived.

Motivated by my experience volunteering in the shelter, I applied for and was accepted as in a fellowship program which placed me working in a domestic violence legal clinic in Pennsylvania. Still a law school student, I had little experience upon which to draw, but I learned a few profound things about working with victims of domestic violence. I learned that being a lawyer is not only knowing the law and how to apply it, it is being a counselor to your clients. It is about gaining trust from someone who doesn't trust anyone. It is about empowering your client to understand what she/he can do to take control of the situation, not you. It is about being a vessel to be used for good. I also came to understand the importance of holistic advocacy, providing a client not only with legal representation, but also resources for shelters, counseling, etc.

That summer I worked on two cases that were especially difficult, one in which the abuser killed himself a week after the court hearing and another case where my client threatened suicide. I learned that domestic violence is a vicious cycle. In domestic violence relationships there are some women who love their abusers so much that they will literally give up their life because of them and there are men who are so obsessed with being in control that it kills them when that control, through a protective order, is taken away.

My background was a natural fit for working in a family law firm. In Virginia, there are many both legal and non-legal resources to assist victims of domestic violence. The legal system has a lot of protection to offer victims of domestic violence. If you are a victim, it is imperative that you file for protective order. The types of protective orders that are available inVirginia are defined below. Protective orders are granted to prevent family abuse. Family abuse is defined as any act involving violence force, or threat including, but not limited to, any forceful detention, which results in bodily injury or places one in reasonable apprehension of bodily injury and which is committed by a person against such person's family or household member. (Virginia Code 16.1-228).

A protective order is a very powerful method of protection, as the abuser can be put in jail for violations of a protective order, and it gets the attention of the police and the response time to your call much faster.

An Emergency Protective Order (EPO) will be granted by a judge or magistrate in order to protect the health or safety of any person when it is found that a warrant was issued against the abuser in a criminal case and there is probable danger of further acts of family abuse or there are reasonable grounds to believe that the abuser committed family abuse and there is probable danger of a further offense. (Virginia Code 16.1-253.4). The EPO is valid only for three days, during which time the victim must file for Preliminary Protective Order to extend her protection under the law.

A Preliminary Protective Order (PPO) will be granted if the victim is or has been within a reasonable period subjected to family abuse. Immediate and present danger of family abuse or evidence sufficient to establish probable cause that family abuse has recently occurred constitute good cause. The PPO will be granted ex parte for up to 15 days. The permanent protective order hearing will be set within 15 days, at which time the alleged abuser must be served with notice of the hearing and the opportunity to defend against the allegations in the victim's petition for the protective order. (Virginia Code 16.1-253.1)

At the permanent protective order hearing, a Protective Order (PO) may be granted for up to 2 years in cases of family abuse to protect the health and safety of the victim and family or household members. The protection offered in a PO includes, but is not limited to the following: (Virginia Code 16.1-279.1)

• Prohibiting acts of family abuse
• Prohibiting contact between the abuser and victim or family members
• Granting the victim possession of the residence occupied by the parties
• Enjoining the abuser from terminating utility services on the residence
• Granting the victim temporary possession of an automobile
• Requiring the abuser to provide suitable alternative housing for the victim and household members
• Ordering the abuser to participate in treatment and/or counseling

Of course, a PO is only a piece of paper and therefore if you are a victim you must have a safety plan in place as well. Predicting human behavior is impossible. If you are a victim you need to be prepared for the next potential act of family abuse against you. The American Bar Association has put together tips for safety planning that may save your life. For more tips you can go to the American Bar Association website: http://www.abanet.org/tips/dvsafety.html#safetips.

Safety Planning

• Learn where to get help; memorize emergency phone numbers
• Keep a phone in a room you can lock from the inside; if you can, get a cellular phone that you keep with you at all times
• If the abuser has moved out, change the locks on your door; get locks on the windows
• Plan an escape route out of your home; teach it to your children
• Think about where you would go if you need to escape
• Ask your neighbors to call the police if they see the abuser at your house; make a signal for them to call the police, for example, if the phone rings twice, a shade is pulled down or a light is on
• Pack a bag with important things you'd need if you had to leave quickly; put it in a safe place, or give it to a friend or relative you trust
• Include cash, car keys & important information such as: court papers, passport or birth certificates, medical records & medicines, immigration papers
• Get an unlisted phone number
• Block caller ID
• Use an answering machine; screen the calls
• Take a good self-defense course

Additionally, Virginia offers a 24 hour toll free Family Violence hotline: 1-800-838-8238 which you can call for resources close to you, including domestic violence shelters. The website http://www.closerthanyouthink.org/ under the Virginia Sexual and Domestic Violence Action Alliance is also provides a wealth of information and resources for victims in Virginia.

The knowledge of the law, resources, and safety planning can provide great safety for victims. If you are a victim, equip yourself with the tools you need to protect your safety and the safety of your family.

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My unexpected experiences as a family law attorney
Posted by: Katharine Maddox
June 01, 2009
Topic: My unexpected experiences as a family law attorney

Being a family law attorney has taken unexpected turns in my career.

In late 2006 I moved to Italy to be with my then boyfriend (now my husband) who was working for the United Nation's World Food Programme. I thought I would be taking a sabbatical from my job as a family law attorney, but past clients still called me up in Rome, seeking ongoing advice. My firm sent me transcripts on cases where we had been hired to handle an appeal of a circuit court decision, and I did much of the research and writing for several appeals to the Virginia Court of Appeals. Both of those were unexpected when I moved but made me realize how much I love my job as a family law attorney. I have been working in the area of family law since I was 14 when I got my first job as a file clerk for Betty A. Thompson. I simply fell into family law because it is what my mother (Marcia Maddox) did, and I never thought much about whether or not I enjoyed the practice. It was a wonderful moment to realize how much I truly love what I do day in and day out. As my mother likes to say, we don't create the problems, but we can help to make them better. An unexpected realization to have while living in a foreign country.

Since moving back to the US in January 2008, my career has continued to take unexpected turns. The most significant of which was becoming a de facto conference planner for the International Academy of Matrimonial Lawyers (IAML). Marcia Maddox is currently the president of the US Chapter of the IAML; as such, she is required to hold 2 conferences in the US for the IAML. Together, we have already successfully completed 1 conference in March of this year, and we are in the process of planning the 2nd conference for February, 2010.

I never thought being a family law attorney would include conference planning, and it has been fascinating. Together with Marcia Maddox, we plan every aspect of the US Chapter of the IAML spring conferences, from choosing the hotel, arranging for various dinners and activities to planning the education programs and compiling all of the educational materials. I believe the 2009 seminars were up-to-the minute in terms of what is "hot" right now in the area of family law. One day was devoted to the state of the laws relating to same sex marriage both in the US and internationally, together with the pros and cons of collaborative law (which I was recently trained in; details on the collaborative practice will be forthcoming in a future blogentry). The other segment of our educational program was more informative than day-to-day educational: The history of family law in Texas as it juxtaposed with the Yearning for Zion case (compound of the Fundamentalist Church of Jesus Christ of Latter Day Saints; also referred to by the media as the Texas polygamy case). We are in the process of choosing the topics for the spring 2010 conference, and I am excited to learn more about matrimonial laws from around the world and put the knowledge to use when our firm represents clients where there is jurisdiction in both Virginia and in a foreign country.

One thing about my career that has not been unexpected: Attention to detail is crucial - whether planning a conference, negotiating a settlement or preparing for trial. The devil is in the details, and the details make all the difference.

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How to prepare for your first meeting with a new attorney
Posted by: Katharine Maddox
April 01, 2008
Topic: How to Prepare for Your First Meeting with a New Attorney

For most people who schedule a consultation with a divorce attorney it is their first time meeting with an attorney. Often people are nervous and not sure how to proceed. Others may have an ongoing case with one attorney but are considering hiring a different attorney for the duration of their case. In both situations the client is best served by being prepared for their first meeting with the new attorney.

It is helpful to think about what you want the attorney to know before coming in for the initial consultation. Specifically, why are you seeking advice of counsel? Do you want a divorce? Do you simply want to know what your rights are should you decide to seek a divorce in the future? Are the issues limited to specific issues such as support, property division or custody, or are they more all-encompassing in nature? If the new client can tell the new attorney what type of advice they seek, it will help ensure that the attorney will be able to effectively address the client's concerns during the consultation. Otherwise a client may forget to bring up certain issues during the consultation only to remember later after they have already left the attorney's office.

If a client has a case pending when they meet with a new attorney (whether they represent themselves pro se or have a current attorney), the new client should bring all pleadings and orders with them to the consultation. In order to be able to give effective on-point legal advice, the attorney must know with specificity the current status of case vis-a-vis court orders and pleadings.

If there are any outstanding settlement offers, the client should also bring such offers with them to the consultation. No one should ever sign a settlement agreement without the advice of counsel. There have been several occasions when clients have scheduled a consultation with an attorney at this firm and have brought in a settlement agreement to find out whether the attorney thinks the agreement if fair. However, if the agreement is already signed by both parties, absent very unusual circumstances, the agreement is binding. Therefore, even if the attorney reviews the agreement and determines that is not fair to the client, it is usually too late to make any changes to the agreement because the client signed it prior to seeking legal advice.

Finally, it is helpful for the attorney if the client brings in a prepared history of the marriage. If the client provides the attorney with a history of the marriage, and what the client believes led to the current legal troubles, it will help the attorney to understand that background of the case which may impact the advice the attorney provides during a consultation.

In sum, the more prepared a client is for an initial consultation with an attorney, the better equipped the attorney will be to provide sound legal advice to the client.

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