In May, I wrote that the Family Court in Hunterdon County had announced that it was not able to try cases until sometime in 2010 (See "Are We the Canary..."). Thereafter, the presiding family judge for this judicial viscinage, Judge Julie Marino, announced to the Bar that she was assigning judges from Somerset County to assist with is County's case backlog. In addition, the judge ordered motion return dates to every other week, rather than every week as had been the custom for some time (thus permitting judges to hold hearings at least two additional days a month). However, the Family Court still stuggles to meet the demand of its varied and complicated calendar, which involves juvenile, domestic violence and adoptions, along with the divorce and post-judgment divorce applications. Complicating the situation, was the absence of one judge this summer due to illness. The litigators are now experiencing long delays in the resolution of motions, in addition to obtaining trial dates for unresolved cases.
Another change ordered by Judge Marino involved the relocation of the Early Settlement Panel conferences, in which volunteer attorneys meet with divorcing couples and their attorneys and attempt to work-out settlements. Now, Hunterdon County litigants will have to travel to the Somerset County Courthouse in Somerville for these conferences, thus adding additional costs to their legal expenses, due to attorney travel time, and expenses incurred in fuel and parking.
On a bright note, several experienced Hunterdon County attorneys, as well as local mental health professionals, were certified as collaborative practitioners by the International Academy of Collaborative Professionals ("IACP") http://www.collaborativepractice.com this past June in Clinton. Many of these professionals joined the Hunterdon County sub-group of the New Jersey Collaborative Group http://www.newjerseycollaborativelawgroup.com/, which I hosted here at my firm in July and August. This is an energtic and dedicated group of professionals and very eager to find a better way to assist families in crisis other than through traditional litigation. Shortly after our August meeting, the Hunterdon County Bar Association's Family Law Committee formed a sub-committee devoted to collaborative family law. Many thanks to Roz Metzger, Family Law Committe Chair, for her efforts in establishing this sub-committee.
With the admission of these professionals into the IACP and soon the New Jersey Collaborative Law Group, Hunterdon County now has in place a nacent working team of collaborative professionals. By choosing collaboration over litigation, clients will likely have their divorces resolved quicker, with less cost and stress to the family than the traditional litigation route, and it can be accomplished privately. Bear in mind, that successful litigation (defined as carrying a matter from the filing of a complaint to settlement or judgment following a trial) is entirely dependent upon a court system, which is now unable to serve the needs of all Hunterdon County residents. Perhaps this is the reason so many family practice professionals have obtained collaborative training in the past year.
BE ADVISED that these comments are not legal opinions and are not to be relied upon as legal advice. If you need legal advice, contact your county bar association; most of which have referral services. If you desire a collaboratively trained and certified attorney, go to http://www.collaborativepractice.com/
See kscounsel.com for my web site.
© Kevin M. Kilcommons, 2009
Friday, September 11, 2009
Wednesday, June 24, 2009
News Brief
As a follow-up to my May post, the Family Division has announced that two judges will be assigned the principal duty of conducting trials all summer and until the growing backlog is reduced. This announcement by Judge Julie M. Marino, presiding Family Part judge, was welcome news to the family bar.
On June 13 and 14 Linda Piff led another successful Basic Collaborative Skills seminar to nearly 30 professionals at the Clinton Holiday Inn. The newly certified attorneys (and I assume the several mental health professionals present) were very excited to become involved in a collaborative group, or form their own, and will be meeting here in my office soon to discuss their options. The New Jersey Collaborative Group members were also excited by the large turnout for Linda. Group president, Ken Rempell, noted that this was the first county bar association in New Jersey to sponsor collaborative training.
On June 13 and 14 Linda Piff led another successful Basic Collaborative Skills seminar to nearly 30 professionals at the Clinton Holiday Inn. The newly certified attorneys (and I assume the several mental health professionals present) were very excited to become involved in a collaborative group, or form their own, and will be meeting here in my office soon to discuss their options. The New Jersey Collaborative Group members were also excited by the large turnout for Linda. Group president, Ken Rempell, noted that this was the first county bar association in New Jersey to sponsor collaborative training.
Monday, May 4, 2009
Are We the Canary in the Mine Shaft?
Last week, I had the opportunity to mediate as a volunteer for the Superior Court in Hunterdon County in what is called “the Blitz.” This is a process where the oldest and most difficult divorce cases are brought in by the Family Division to meet with a panel of two attorneys for intensive mediation. The Blitz is intended to be more involved than the Early Settlement Panel (“ESP”) conferences, and follow the economic mediation, which is also required if the ESP is unsuccessful. My panel was assigned four cases that all averaged two years on the docket from date of filing.
The first thing the parties heard from the judge that morning was that the Court did not expect to try any cases until sometime in 2010! If you recall from my March blog post, the Court then had announced that it did not expect to try cases for several weeks. So, the situation has gone from difficult to dire for people having trouble settling their cases. The judge added that if the Blitz did not work, then they still had to endure a very long time before they could expect to start a trial, and then the Court noted that it would not be able to commit successive days to the trial, but rather, call the parties in when the judge’s calendar permitted. Could our situation be anymore critical?
Is Hunterdon unique in this regard? Or, will more and more county courts, as well as those in other states, feel the need to cut back court time for divorcing couples due to cuts in state budgets? Has Hunterdon County become the proverbial canary in the mine shaft?
Understandably, the parties who came to our panel were not happy. First, they had been litigating for two years with no light at the end of the tunnel. Their legal fees were probably already in the tens of thousands of dollars. The economic bust had reduced their retirement accounts, and were further stripped through withdrawals in an effort to keep up with the living expenses of two households. Further, several of the parties owned businesses, so their profits were way down and with no prospect of an upturn anytime soon. How do you determine alimony under these circumstances? One could not have predicted more heart rending situations to mediate just a year ago.
There was no happy ending to the several matters we mediated that day. However, each party lowered their defenses after we gave them the time to lay out the difficulties blocking a final resolution, and once they understood that we were willing to spend as much time as possible to move the case toward a settlement. As soon as they began to trust us and the process, then progress began.
The point here is that the Blitz mediation in effect became a collaboration among the parties, their attorneys and the two mediators. The dynamic was working. Each of the parties left us with what appeared to be a new resolve to work at the difficult issues, and some even came up with action plans to reach the next step toward resolution. My panel partner, Patricia Smits, who is also a fellow member of the New Jersey Collaborative Group, and I were very gratified by what we witnessed and the thanks we received from each of the parties and their attorneys.
If the collaboration method can work for the hardest cases on the docket, then it will certainly work for the average dissolution. Imagine that these parties had a neutral financial consultant available at our Blitz, as they could have had in a collaborative setting, or a divorce coach present to assist in the stubborn parenting issues preventing a resolution of the economic issues. The sessions would likely have been more productive, and the divorces likely resolved much sooner, and with less stress to the family.
Now that the Court here has essentially announced its inability to resolve the most difficult cases by way of trial, alternative dispute resolution, such as collaboration, is the only method available to effectively bring about a final resolution to marital dissolutions.
Perhaps our Court's dilemma is the reason why over thirty attorneys and mental health professionals have signed up for collaboration training in June here in Hunterdon (or perhaps better referred to now as "the judicial ground zero"). Linda Piff of The Jersey Shore Collaborative Group will take the lead in this course. Like me, these professionals will grow from the experience and, ultimately, the public will be better served.
Thank you for reading my thoughts and please visit my new web site: www.kscounsel.com
BE ADVISED that these comments are not legal opinions and are not to be relied upon as legal advice. If you need legal advice, contact your county bar association; most of which have referral services. If you desire a collaboratively trained and certified attorney, go to http://www.collaborativepractice.com/
© Kevin M. Kilcommons, 2009
The first thing the parties heard from the judge that morning was that the Court did not expect to try any cases until sometime in 2010! If you recall from my March blog post, the Court then had announced that it did not expect to try cases for several weeks. So, the situation has gone from difficult to dire for people having trouble settling their cases. The judge added that if the Blitz did not work, then they still had to endure a very long time before they could expect to start a trial, and then the Court noted that it would not be able to commit successive days to the trial, but rather, call the parties in when the judge’s calendar permitted. Could our situation be anymore critical?
Is Hunterdon unique in this regard? Or, will more and more county courts, as well as those in other states, feel the need to cut back court time for divorcing couples due to cuts in state budgets? Has Hunterdon County become the proverbial canary in the mine shaft?
Understandably, the parties who came to our panel were not happy. First, they had been litigating for two years with no light at the end of the tunnel. Their legal fees were probably already in the tens of thousands of dollars. The economic bust had reduced their retirement accounts, and were further stripped through withdrawals in an effort to keep up with the living expenses of two households. Further, several of the parties owned businesses, so their profits were way down and with no prospect of an upturn anytime soon. How do you determine alimony under these circumstances? One could not have predicted more heart rending situations to mediate just a year ago.
There was no happy ending to the several matters we mediated that day. However, each party lowered their defenses after we gave them the time to lay out the difficulties blocking a final resolution, and once they understood that we were willing to spend as much time as possible to move the case toward a settlement. As soon as they began to trust us and the process, then progress began.
The point here is that the Blitz mediation in effect became a collaboration among the parties, their attorneys and the two mediators. The dynamic was working. Each of the parties left us with what appeared to be a new resolve to work at the difficult issues, and some even came up with action plans to reach the next step toward resolution. My panel partner, Patricia Smits, who is also a fellow member of the New Jersey Collaborative Group, and I were very gratified by what we witnessed and the thanks we received from each of the parties and their attorneys.
If the collaboration method can work for the hardest cases on the docket, then it will certainly work for the average dissolution. Imagine that these parties had a neutral financial consultant available at our Blitz, as they could have had in a collaborative setting, or a divorce coach present to assist in the stubborn parenting issues preventing a resolution of the economic issues. The sessions would likely have been more productive, and the divorces likely resolved much sooner, and with less stress to the family.
Now that the Court here has essentially announced its inability to resolve the most difficult cases by way of trial, alternative dispute resolution, such as collaboration, is the only method available to effectively bring about a final resolution to marital dissolutions.
Perhaps our Court's dilemma is the reason why over thirty attorneys and mental health professionals have signed up for collaboration training in June here in Hunterdon (or perhaps better referred to now as "the judicial ground zero"). Linda Piff of The Jersey Shore Collaborative Group will take the lead in this course. Like me, these professionals will grow from the experience and, ultimately, the public will be better served.
Thank you for reading my thoughts and please visit my new web site: www.kscounsel.com
BE ADVISED that these comments are not legal opinions and are not to be relied upon as legal advice. If you need legal advice, contact your county bar association; most of which have referral services. If you desire a collaboratively trained and certified attorney, go to http://www.collaborativepractice.com/
© Kevin M. Kilcommons, 2009
Monday, March 30, 2009
Court: No Trials or Hearings
It's come to this said state, due to the $50 Million Dollar cut in funds to the New Jersey Judiciary, our county, Hunterdon, will be reduced to just one judge for all family-related matters. Judge Ann Bartlett announced from the bench this morning that due to the appointment freeze on judges, and the retirement of a county judge at the end of the month, she will not have the ability to conduct trials or evidentiary hearings. She said it would be two weeks before she would be able to schedule a trial. I suspect that it will be longer, and the stress to litigants due to this delay will be tremendous.
This situation effects only this county, but the drastic step taken to cut spending may be repeated in other counties, and perhaps other states. If so, couples must consider whether they will even be able to obtain a resolution of their divorce from the courts in a reasonable period of time. Therefore, now, more than ever, collaborating resolutions (or mediation/arbitration) to family disputes may be a necessity due to the current economic turmoil.
The courts will always find the time to give attorneys time to present a settled case, usually taking us fifteen minutes. At least in Hunterdon County, for the foreseeable future, traditional litigation will not only be expensive but may not lead to a timely resolution of your divorce.
There is a better way to divorce-- through collaboration. What was created by Stu Webb, Minnesota, in 1990 is now practiced in Canada and Europe. The reason is simply because people understand that this method of divorcing makes the most sense, especially today.
BE ADVISED that these comments are not legal opinions and are not to be relied upon as legal advice. If you need legal advice, contact your county bar association; most of which have referral services. If you desire a collaboratively trained and certified attorney, go to http://www.collaborativepractice.com/
© Kevin M. Kilcommons, 2009
This situation effects only this county, but the drastic step taken to cut spending may be repeated in other counties, and perhaps other states. If so, couples must consider whether they will even be able to obtain a resolution of their divorce from the courts in a reasonable period of time. Therefore, now, more than ever, collaborating resolutions (or mediation/arbitration) to family disputes may be a necessity due to the current economic turmoil.
The courts will always find the time to give attorneys time to present a settled case, usually taking us fifteen minutes. At least in Hunterdon County, for the foreseeable future, traditional litigation will not only be expensive but may not lead to a timely resolution of your divorce.
There is a better way to divorce-- through collaboration. What was created by Stu Webb, Minnesota, in 1990 is now practiced in Canada and Europe. The reason is simply because people understand that this method of divorcing makes the most sense, especially today.
BE ADVISED that these comments are not legal opinions and are not to be relied upon as legal advice. If you need legal advice, contact your county bar association; most of which have referral services. If you desire a collaboratively trained and certified attorney, go to http://www.collaborativepractice.com/
© Kevin M. Kilcommons, 2009
Friday, February 20, 2009
Downward Modification in a Downward Economy
I was in the family court here in Hunterdon County two Friday’s ago. It was motion day and the courtroom was packed with attorneys and a few pro se litigants ready to make their arguments to the judge about why she should alter her preliminary decisions, which are typically issued by fax the previous afternoon. What struck me about that morning, other than the fact that it was the busiest I had seen a family court on a motion day in some time, was that all the motions I heard involved applications to modify judgments as a direct result of the down turn in the economy. Such are the times.
Also, it became clear that day, as well as during the Family Law Symposium held in New Brunswick last month, that the Family Part court here in New Jersey has been swamped with modification applications due to loss of income and business set backs. A loss of income affects the ability of an obligor to cover child support, alimony and college expenses for the children. The problem, however, is that the obligation to pay a sum certain remains until the present judgment/order is officially modified. Often times, these applications cannot be resolved in one visit to court on motion day (after length and expensive preparation of certifications and briefs), but also require the court to hold plenary hearings to establish the facts and make findings of law. This takes months to schedule, and will be preceded by a period of discovery in which documents are exchanged and, perhaps, depositions are conducted. The problem is, if the former spouses are already financially stressed due to a job loss, how will they pay for another round of litigation?
More than ever, collaboration may be the best means of quickly addressing the effects of a bad economy, and before both of the households of the former spouses are beset with unpaid bills and violations of standing support orders.
The several judges whom spoke at the Symposium were asked how their perceptions of modification applications may have changed in the past six months. Before the economic down turn, most judges would expect a jobless obligor to take at least a year before coming to court and asking for a downward modification of support. They expected him/her to show a paper trail of attempts to regain employment, and/or proof that the previous income was unobtainable—and not due to their own voluntary acts. These wait times have varied from judge to judge, and from county to county.
The judges responded that, indeed, they were taking note of the impact of the job market and would not be as stringent in their proof requirements going forward. This was good news, but it still remains unclear just how long an obligor must wait, and just what proofs concerning employability or ability to maintain the previous income level they must present to satisfy the court that modification is warranted.
Regardless of how much time the judges will now require, and whether there needs to be a proof hearing before a decision will be issued, most people do not have the time or money to pursue the traditional method of modifying judgments and property settlement agreements in post-judgment applications. Further, the courts are now swamped with these applications. Therefore, former spouses should recognize that the sooner they get into a collaborative process to negotiate the support issues, the better off for the entire family. Once they reach an amicable, and equitable, agreement, it can be reduced to a consent order and sent to the court, which will sign it without any need for a court appearance. Now, the courts would much rather exercise this function, knowing that experienced collaborative attorneys have been involved, than add another post-judgment application to its docket.
Just as in divorce, there is a better way to resolve modification issues, such as college expense contributions and alimony, and that is through collaboration.
BE ADVISED that these comments are not legal opinions and are not to be relied upon as legal advice. If you need legal advice, contact your county bar association; most of which have referral services. If you desire a collaboratively trained and certified attorney, go to http://www.collaborativepractice.com/
© Kevin M. Kilcommons, 2009
Also, it became clear that day, as well as during the Family Law Symposium held in New Brunswick last month, that the Family Part court here in New Jersey has been swamped with modification applications due to loss of income and business set backs. A loss of income affects the ability of an obligor to cover child support, alimony and college expenses for the children. The problem, however, is that the obligation to pay a sum certain remains until the present judgment/order is officially modified. Often times, these applications cannot be resolved in one visit to court on motion day (after length and expensive preparation of certifications and briefs), but also require the court to hold plenary hearings to establish the facts and make findings of law. This takes months to schedule, and will be preceded by a period of discovery in which documents are exchanged and, perhaps, depositions are conducted. The problem is, if the former spouses are already financially stressed due to a job loss, how will they pay for another round of litigation?
More than ever, collaboration may be the best means of quickly addressing the effects of a bad economy, and before both of the households of the former spouses are beset with unpaid bills and violations of standing support orders.
The several judges whom spoke at the Symposium were asked how their perceptions of modification applications may have changed in the past six months. Before the economic down turn, most judges would expect a jobless obligor to take at least a year before coming to court and asking for a downward modification of support. They expected him/her to show a paper trail of attempts to regain employment, and/or proof that the previous income was unobtainable—and not due to their own voluntary acts. These wait times have varied from judge to judge, and from county to county.
The judges responded that, indeed, they were taking note of the impact of the job market and would not be as stringent in their proof requirements going forward. This was good news, but it still remains unclear just how long an obligor must wait, and just what proofs concerning employability or ability to maintain the previous income level they must present to satisfy the court that modification is warranted.
Regardless of how much time the judges will now require, and whether there needs to be a proof hearing before a decision will be issued, most people do not have the time or money to pursue the traditional method of modifying judgments and property settlement agreements in post-judgment applications. Further, the courts are now swamped with these applications. Therefore, former spouses should recognize that the sooner they get into a collaborative process to negotiate the support issues, the better off for the entire family. Once they reach an amicable, and equitable, agreement, it can be reduced to a consent order and sent to the court, which will sign it without any need for a court appearance. Now, the courts would much rather exercise this function, knowing that experienced collaborative attorneys have been involved, than add another post-judgment application to its docket.
Just as in divorce, there is a better way to resolve modification issues, such as college expense contributions and alimony, and that is through collaboration.
BE ADVISED that these comments are not legal opinions and are not to be relied upon as legal advice. If you need legal advice, contact your county bar association; most of which have referral services. If you desire a collaboratively trained and certified attorney, go to http://www.collaborativepractice.com/
© Kevin M. Kilcommons, 2009
Friday, October 31, 2008
Trial by Battle
Before any formalized law, such as the ancient Irish Brehon codes, man simply resolved differences by the club, spear or sword. Later, we evolved to what became known as “Trial by Battle” in the early centuries of the first millennium. This process involved the accuser and the accused facing each other in a formal duel. “It was believed that God would be on the side of the innocent.” Encyclopedia Britannica In fact, if during the brawl the accused killed or caused the accuser to withdraw the charges, then he was acquitted. But as in all things legal, there was a loophole: if he survived the entire day’s combat, he was, likewise, acquitted. How far we have evolved at resolving differences!
For the last 500 plus years, our society has benefited from the court system, which, in the matter of divorce, involves an official acting in the capacity of the giver of law and trier of fact—a judge. But we may have come to the point in the evolution of society where the traditional court, and its centuries’ old system of adversarial law, has been surpassed. The traditional system, involving invasive, public, costly and emotionally damaging acts to resolve marital disputes now seems as barbaric as the feudal form of dispute resolution by the sword.
A change is needed. In fact, the judges will tell you that no one knows the facts in a case better than the parties and their attorneys. This is the usual warm-up talk our family judges give before sending the parties off to mediate, which is mandatory before the court will give our clients here in Jersey a trial date. They are right, of course. A single person sitting for hours, days or even weeks presiding over a trial is not going to fashion a judgment which is better than an agreement worked out between the spouses. This is a given fact, and is due to the reality that marital breakups are too complicated to resolve by just one person. Some issue or issues are likely to be left unresolved or one or both parties will be so upset by the decision, that years of post-judgment litigation is a certainty.
But the change is here, and it is called collaborative law. It presents a better and more dignified way in which to resolve marital disputes, and with the least amount of damaging stress to the family. In fact, this evolved form of dispute resolution has already spread through Canada, Europe and into South West Asia. (BTW: Did you read that the Richie’s were going to collaboration? Actually, I thought that Madonna would have preferred public exposure (ugh!), but she is a mom first and knows that’s not the way to go.) Collaboration is quickly growing as the first choice for dispute resolution among couples, because people realize that this is a common sense way to handle the most sensitive issues we have within our families.
If we litigators, whom have been on the front lines all these years and have witnessed the pain of divorce on all family members, are telling you that the system needs to change, then take our free advice and choose, if you must, a better way to divorce.
BE ADVISED that these comments are not legal opinions and are not to be relied upon as legal advice. If you need legal advice, contact your county bar association; most of which have referral services. If you desire a collaboratively trained and certified attorney, go to http://www.collaborativepractice.com/
© Kevin M. Kilcommons, 2008
For the last 500 plus years, our society has benefited from the court system, which, in the matter of divorce, involves an official acting in the capacity of the giver of law and trier of fact—a judge. But we may have come to the point in the evolution of society where the traditional court, and its centuries’ old system of adversarial law, has been surpassed. The traditional system, involving invasive, public, costly and emotionally damaging acts to resolve marital disputes now seems as barbaric as the feudal form of dispute resolution by the sword.
A change is needed. In fact, the judges will tell you that no one knows the facts in a case better than the parties and their attorneys. This is the usual warm-up talk our family judges give before sending the parties off to mediate, which is mandatory before the court will give our clients here in Jersey a trial date. They are right, of course. A single person sitting for hours, days or even weeks presiding over a trial is not going to fashion a judgment which is better than an agreement worked out between the spouses. This is a given fact, and is due to the reality that marital breakups are too complicated to resolve by just one person. Some issue or issues are likely to be left unresolved or one or both parties will be so upset by the decision, that years of post-judgment litigation is a certainty.
But the change is here, and it is called collaborative law. It presents a better and more dignified way in which to resolve marital disputes, and with the least amount of damaging stress to the family. In fact, this evolved form of dispute resolution has already spread through Canada, Europe and into South West Asia. (BTW: Did you read that the Richie’s were going to collaboration? Actually, I thought that Madonna would have preferred public exposure (ugh!), but she is a mom first and knows that’s not the way to go.) Collaboration is quickly growing as the first choice for dispute resolution among couples, because people realize that this is a common sense way to handle the most sensitive issues we have within our families.
If we litigators, whom have been on the front lines all these years and have witnessed the pain of divorce on all family members, are telling you that the system needs to change, then take our free advice and choose, if you must, a better way to divorce.
BE ADVISED that these comments are not legal opinions and are not to be relied upon as legal advice. If you need legal advice, contact your county bar association; most of which have referral services. If you desire a collaboratively trained and certified attorney, go to http://www.collaborativepractice.com/
© Kevin M. Kilcommons, 2008
Tuesday, September 23, 2008
A Missed Opportunity
I have noted before that my parents divorced just six years ago. What I did not mention was that shortly after Mom and Pop's traditional divorce, she was clinically diagnosed with Alzheimer’s disease. During the divorce, I had sensed something was wrong with Mom and so did Pop, but Mom had gone to an attorney and started the divorce process premised upon her belief that that he was unfaithful, stealing from her, etc. There was nothing we could do, because their divorce was in the "system" and pretty much out of control. The final fees associated with their divorce action exceeded $40,000.00. There were no motions or trial expenses added to the final sum for this uncontested divorce.
Unfortunately, our legal system is not well equipped to deal with parties suffering from mental health issues. So long as the wife or husband can pass himself or herself off as sane, the divorce judgment goes through. Really, all families can hope is that an attorney will recognize that their client is not mentally fit to understand the terms of a property settlement agreement or the legal process, and seek a guardianship for the client. We attorneys, however, are not trained in mental health, so this is a flawed safety net.
In my professional experience, I have witnessed or heard of mental health issues leading to divorce, or that it played some part of the marriage's break down, as well as being caused by the stress of a dissolution. In New Jersey last year, the courts handled 30,000 divorces. Even if only a small portion of these matters were mental health-related, this is a serious problem, which must be addressed.
What if Collaborative Law had been widely known six years ago and opted for by my parents? What if early in the collaborative process, one of the collaborative team's mental health professionals (MHP), had detected a clinical issue with Mom and referred her out for a neurological examination? Once she was clinically diagnosed, she could have received the necessary medications, and then, perhaps, their 44-year marriage could have saved.
Although the protocols for the early involvement of mental health professionals in the collaborative process are still uncertain, one benefit of the collaborative process is that now attorneys are working closely with mental health professionals and learning from them. By comparison, in a traditional litigation, the relationship between the attorney and the MHP is very different. In this scenario, the MHP is employed by one party, or appointed by the Court, to conduct an evaluation, issue a report, and then defend their positions to the Court and the attorneys. To say the least, this is not the best way in which to employ the MHP's time and expertise: nor the attorneys' or the judge's. What benefit is there in this traditional process to the couple or their children?
Many collaborative law groups, including mine, the New Jersey Collaborative Law Group, are inter-disciplinarian. Meaning, our fellow collaborative law colleague is just as likely to be a MHP as an attorney or financial professional. Working together, and combining our talents and experience, we are able to evaluate the needs of each divorcing couple and their childen, if the need arises, so that all the issues may be addressed and solved, rather than just the economic needs, which is the principal focus of the courts.
There is a happy ending to Mom and Pop's story. After Mom was diagnosed, she eventually agreed to move to the Sunrise Assisted Living Facility in Basking Ridge, New Jersey, where she could be medicated properly and monitored. Her last five years were good ones despite the advance of the disease. She and Pop started to date and fell in love again. For their grandchildren, and us children this was a wonderful end to their relationship, and admittedly, unusual. Pop was with Mom every day when she started her rapid decline in July. Her last audible words to him the day before she passed were "thank you."
Thanks for reading.
BE ADVISED that these comments are not legal opinions and are not to be relied upon as legal advice. If you need legal advice, contact you’re county bar association; most of which have referral services. If you desire a collaboratively trained and certified attorney, go to http://www.collaborativepractice.com/
© Kevin M. Kilcommons, 2008
Unfortunately, our legal system is not well equipped to deal with parties suffering from mental health issues. So long as the wife or husband can pass himself or herself off as sane, the divorce judgment goes through. Really, all families can hope is that an attorney will recognize that their client is not mentally fit to understand the terms of a property settlement agreement or the legal process, and seek a guardianship for the client. We attorneys, however, are not trained in mental health, so this is a flawed safety net.
In my professional experience, I have witnessed or heard of mental health issues leading to divorce, or that it played some part of the marriage's break down, as well as being caused by the stress of a dissolution. In New Jersey last year, the courts handled 30,000 divorces. Even if only a small portion of these matters were mental health-related, this is a serious problem, which must be addressed.
What if Collaborative Law had been widely known six years ago and opted for by my parents? What if early in the collaborative process, one of the collaborative team's mental health professionals (MHP), had detected a clinical issue with Mom and referred her out for a neurological examination? Once she was clinically diagnosed, she could have received the necessary medications, and then, perhaps, their 44-year marriage could have saved.
Although the protocols for the early involvement of mental health professionals in the collaborative process are still uncertain, one benefit of the collaborative process is that now attorneys are working closely with mental health professionals and learning from them. By comparison, in a traditional litigation, the relationship between the attorney and the MHP is very different. In this scenario, the MHP is employed by one party, or appointed by the Court, to conduct an evaluation, issue a report, and then defend their positions to the Court and the attorneys. To say the least, this is not the best way in which to employ the MHP's time and expertise: nor the attorneys' or the judge's. What benefit is there in this traditional process to the couple or their children?
Many collaborative law groups, including mine, the New Jersey Collaborative Law Group, are inter-disciplinarian. Meaning, our fellow collaborative law colleague is just as likely to be a MHP as an attorney or financial professional. Working together, and combining our talents and experience, we are able to evaluate the needs of each divorcing couple and their childen, if the need arises, so that all the issues may be addressed and solved, rather than just the economic needs, which is the principal focus of the courts.
There is a happy ending to Mom and Pop's story. After Mom was diagnosed, she eventually agreed to move to the Sunrise Assisted Living Facility in Basking Ridge, New Jersey, where she could be medicated properly and monitored. Her last five years were good ones despite the advance of the disease. She and Pop started to date and fell in love again. For their grandchildren, and us children this was a wonderful end to their relationship, and admittedly, unusual. Pop was with Mom every day when she started her rapid decline in July. Her last audible words to him the day before she passed were "thank you."
Thanks for reading.
BE ADVISED that these comments are not legal opinions and are not to be relied upon as legal advice. If you need legal advice, contact you’re county bar association; most of which have referral services. If you desire a collaboratively trained and certified attorney, go to http://www.collaborativepractice.com/
© Kevin M. Kilcommons, 2008
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