Madonna and Ritchie May Pursue Collaborative Divorce

Interesting article in the London Times online edition edition today, reproduced in full below, regarding the Madonna – Guy Ritchie split up. As I have said before, I usually try to avoind writing about celebrity stories here. But this story I think warrants mention. It had looked like Madonna’s divorce was headed toward being the same sort of donnybrook that Paul McCartney had become embroiled in with Heather Mills. The gloves were off, the snarky comments to the media from “friends” and “confidantes” had started. But it looks like Madonna and Guy have stepped back from the abyss, and intend to pursue a process that is more civil, and will allow them a better chance of moving forward, with their children as a family. I’d like to think that the story would garner great press coverage and be a boon for collaborative practice – of which I am a HUGE advocate. But friendly and civil doesn’t make headlines, and that’s too bad. In any event, here’s the story:

Madonna and Guy Ritchie could be the first high-profile couple to divorce collaborative-style.

The new, fast-track and non-confrontational way of reaching arrangements over money and children on divorce has just won senior judicial backing – in the week that the couple’s split became public knowledge.

Collaborative law does not sound buzzy. But it is the in-method of reaching divorce agreements, with the benefits of speed, huge cost savings and, above all, minimum acrimony.

Last week a couple of hundred lawyers gathered to celebrate the fifth year since American-style collaborative law was introduced in the UK. In 2003, four London lawyers were among a handful who had qualified in the new method; now there are more than 1,250 and more than 300 in London. This year has also seen the appointment of London’s first “collaborative” silk: Tim Amos, QC.

What is it? It aims to help couples reach agreement out of court, avoiding the risk of the public mud-slinging and battles epitomised in the split between Sir Paul McCartney and Heather Mills.

Settlements are reached in four-way, face-to-face talks between the parties and their lawyers. There is an incentive to agree: if the talks fail, then new lawyers have to be instructed for court proceedings – at extra cost.

The couple draws up a consent order which is then agreed by the court. This process used to take three to four months. But last week , Mr Justice Coleridge, a senior family judge, announced a fast-track procedure whereby such orders could now be approved within a couple of days.

He said that If every aspect of the case had been agreed, and the hearing before a judge for approving the order would not take longer than ten minutes, all that was needed was a day’s notice to the court and a chance for the judge to read the papers overnight.

The fast-track initiative, which has the backing of Sir Mark Potter, president of the Family Division, comes about after an un-named couple had asked for urgent approval of their settlement because one was about to move to the United States with the children.

At first, Mr Justice Coleridge said that he thought the application rather cheeky. But he added: “However, I am, as is well-known, a pussycat, and agreed to hear the application for approval as the first in the list on the following day.”

The key benefits of the new “good divorce” method are that it is non-adversarial; solutions can be tailormade and flexible; clients have control of the pace; experts (accountants, financial advisers, therapists or counsellors) can be brought in and work with the couples; and privacy is preserved.

He did sound one note of caution, however. Lawyers needed to be “acutely sensitive” to the process failing so that “costs are not run up first by one process and then, after the trial has hit the buffers, by the old-fashioned scheme”.

Isobel Robson, partner and head of family at Andrew Jackson, the Yorkshire law firm, said there was a big take-up in the new method.

“I believe that collaborative law is the most exciting development in family law in my 24 years of practice. Clients love it; they regard the process as direct, clear and amicable whilst avoiding the expenses and latent aggression of the court process.”

Cost savings were considerable too, she said. “I have dealt with collaborative cases with assets in the millions and costs of under £10,000 – perhaps only 10 per cent or less of the costs for contest cases with the same assets.”

The take-up among lawyers is still patchy, however, with some hugely successful pockets in the regions where lawyers have embraced the new method, but a slower take-up in other areas, including London.

“The clients embrace the concept that the whole focus of their case is on settling – rather than fighting,” she said.

Suzanne Kingston, head of family at Dawsons LLP, said that for Madonna and Guy Ritchie, the privacy would be a big incentive. The settlement could be reached “in one of the offices of the solicitors rather than in court”.

So it’s down to Fiona Shackleton (for Madonna) and (Lady) Helen Ward, for Ritchie. The couple are said to want a deal by Christmas. Using this route, they could well do it.

More on Alternative Billing

A little while ago I posted here regarding my belief that alternatives to hourly billing were best in many, if not most, cases, including family law cases. Ben Stevens at the South Carolina Family Law Blog has taken up the issue. Here is Ben’s latest post on this subject (and, for what it is worth, I agree completely with Ben, and disagree with his critics):

My two articles published last week (here and here) on the subject of using fixed fees in family law cases have created a bit of a buzz. Some bloggers, like Grant Griffiths of the Kansas Family Law Blog, agree with me. Mr. Griffiths writes that he has been using fixed fees in his family court practice for over three years, and he agrees with me that this method benefits both his clients and himself.

However, others, such as Daniel Clement of the New York Divorce Report disagree and still advocate the “hourly” billing model for his family law cases. Mr. Clements questions whether fixed fees are appropriate in anything other than “simple” cases, i.e. those that are limited in scope, and he believes fixed fees to be inappropriate in more involved cases. He focuses his concern on the possibility that parties in family law cases might take “irrational and economically untenable positions fueled by emotions.”

I probably had the same type of concern before I began handling cases in this manner. However, after using this method for a few years, I can say from experience that it is unfounded. Among other things, I use the following two methods to help prevent this from being a problem in my practice:

1. I am very, very selective in choosing which clients I agree to represent. I estimate that I reject approximately one-half of the potential cases that I could accept. I only agree to represent those clients that meet the following criteria: (a) the client’s goals in the case are reasonable; (b) the client is willing to help my office work on his/her case; and (c) the client is someone that I truly want to help. There are other more subtle criteria that I subconsciously apply, and I will admit that a lot of it is done by “gut feeling”. However, after doing this for so long and handling so many cases, my gut feeling is right the vast majority of the time.
2. In most family law matters, I usually break the case down into different phases, at which portions of the fixed fee will be due and payable. This can be done in different manners, such as by time or by status of the case, but the point is that if a case gets resolved during any particular phase, there are no additional attorney’s fees due. This scenario gives the client incentive to help resolve the case sooner rather than later if a reasonable resolution is possible, but at the same time, the client is protected and knows his total cost if it is not. Having all of this information available to the client up front helps him/her better assess any settlement offers and the case in general as it progresses.

Mr. Clement’s post made me wonder about his thoughts on these questions:

1. How does he handle “unreasonable” clients that he is representing on an “hourly” basis? I believe that the problem he references is more with the clients themselves than with the manner of charging for the attorney’s time. Back when I did charge by the hour for my time, I would typically withdraw from the representation if my client was acting unreasonably. I still have that same option available to me now while using a fixed fee, but it is very rare that I have to exercise that option because of my stringent client selection criteria as discussed above. Either way, I do not want to represent unreasonable clients, period.
2. Does he agree with the harsh opinion expressed by Robert Hirshon, former president of the American Bar Association, that “[t]he billable hour is fundamentally about quantity over quality, repetition over creativity”? I believe that clients don’t care how long it takes you to produce those results – they only care about the results themselves. I believe that the hourly rate can encourage (or at least reward) inefficiency on the attorney’s part, because the longer it takes to do something, the greater the fee charged to the client. Also, if I were the client, I know that I would feel uncomfortable in effect writing the “hourly basis” lawyer a blank check and hoping that he/she keeps the fees as low as possible.

I challenge Mr. Clement to handle just one case on a fixed fee basis and to then post his thoughts about doing so. I am confident that should he do so, he will quickly see why I am such an advocate of this method. I handled cases on an hourly basis for over a decade, and I can say without hesitation that the fixed fee basis is vastly superior for both attorneys and their clients. I invite others to let me know their opinions on this topic by posting their comments.

Source: South Carolina Family Law Blog

Could Bear Market Mean Bull Market For Divorce?

The New York Times and New York Magazine each report that the uncertain financial markets could lead to a “bull market” for divorce. The periodicals report that wealthy clients in the financial-services industry are being counseled to consider ending their unhappy marriages now, “as a way to cut losses on future payouts.”

This mercenary theory works best for the spouse expecting to receive maintenance or child support and who expects the other spouse’s income to substantially decrease in the immediate future. It would certainly be advantageous to have support payments (which are income dependent) fixed before there is a loss in income.

It is notable that both articles mis-state a basic premise of divorce law. Assets are distributed equitably in New York. This does not necessarily mean that the assets will be divided 50-50 as stated in the articles.

Source: New York Divorce Report

A Psychologist’s View on the California Spanking Legislation

This was submitted as a comment to my earlier post on the California spanking legislation. I thought that it was sufficiently thought provoking to put up as a post. I have removed the identifying information. You can read my response to the comment below the fold:

I feel strongly that as a society we should use reasonable means to guide parents towards using parenting techniques that have been shown to have better outcomes for child adjustment than corporal punishment. However, the severity of punishment (up to one year in jail) for PARENTS hardly fits the crime, particularly for the majority of spankers, who are simply using the discipline techniques with which they are familiar. Making spanking a misdemeanor seems quite harsh. As a psychologist I don’t know what other alternatives there might be; could requiring attendance at a parenting class for a first offence be instituted without making it a misdemeanor? I do think legislative action would provide a push for parents to learn more positive and healthy ways to guide children.

There is also concern that this punishment might fall more heavily on minority parents. And, there is some intriguing research that shows that the long-term impact of spanking in African American families is not the same as in earlier studies that included mainly caucasian families. (The results are more mixed, but not decidedly negative.) I do think minority families could benefit from learning more positive discipline methods, but we do have to be culturally sensitive.

Programming Note

I will be out of town through the end of the week, so posts may be sporadic. I will try to get one or two up, and then back to normal posting over the weekend.

10 Things you not to say (or do), and that WILL jeopardize your case

10. Never refer to your holdings as your hidden assets.
9. Never show up late (or early) for a court appearance with a hangover.
8. Never telephone your ex’s attorney and tell him/her off.
7. Never bribe the kids into testifying against your ex.
6. Never throw a fit in court.
5. Never act in a threatening or inappropriate manner in front of your
ex’s attorney.
4. Never toss out a pickup line to the Judge.
3. Never have a wild party on your custodial weekends.
2. Never lose or destroy your important paperwork.
1. Never say, “I’ll never get through this.”

Source: Divorcemag.com

Who gets to claim the kids on their tax return?

This is one of the most commonly asked questions in my practice. Fortunately, the Family Law Taxation Blog has a very helpful article that explains the whys and wherefores of when and to what extent a non-custodial parent can claim a child as a dependent on his or her federal income tax return.

Source: Family Law Taxation Blog (familylawtaxation.com)

Blog recommendation

As a part of my ongoing effort to bring to your attention blogs and websites offering helpful, insightful, and sometimes even entertaining, information on family law issues, I highly recommend that you take a look at Dan Nunley’s Oklahoma Family Law Blog. Dan offers a wealth of insightful and helpfuil information. I encourage you to take a look.

Great blogs

One of the things I intend to do here regularly is highlight what I think are great sources – whether websites, blogs or whatever- for information on family law. The first source I would bring your attention to is the Kansas Family Law Blog, which will also be added to the blogroll here in short order. Kansas family law attorney and blogger extraordinaire Grant Griffiths does a fabulous job with that blog (as well as with the Home Office Lawyer Blog, which is another of my daily reads). In any event, follow the link above and take a look.

San Francisco Appeals Gay Marriage Ruling

The City of San Francisco has taken an appeal to the California Supreme Court of an adverse ruling issued by an intermediate appellate court, which held that it is not the domain of the judiciary to define the meaning of the term “marriage,” and that California’s existing marriage laws do not discriminate against gays and lesbians. The Washington Post has this storyon the appeal.