The Practice - Family Law

Some divorce and child custody disputes can be highly contentious, even bitter. In these cases, Becker Legal, P.C. vigorously asserts the rights of our clients through a firm stance and clear, forthright court actions and filings. In other situations, the parties may have a mutual desire to settle matters with as little emotional strife as possible. Here, Becker Legal, P.C. employs negotiation, divorce mediation, and collaborative divorce law techniques to achieve the client’s aims. It’s revolutionary. You can resolve conflict without exacting revenge by working through the pain and the conflict.

We help clients with simple divorces, as well as complex paternity, custody and divorce cases involving extensive assets. Please contact us regarding any aspect of family law, including divorce, collaborative divorce, child custody, parenting time, spousal support, child support, property division, paternity, post judgment matters, marital asset protection and mediation. Know your rights before you lose your rights.

“Lori worked to resolve our problems, not stir the pot.” - Michael, father of two, Clinton Township

Family Law Options:

How a couple divorces depends largely on their goals. Some couples are committed to divorcing with dignity and respect and will seek options which honor those goals. Others are determined to obtain the maximum personal advantage without regard for the needs of the other spouse or the impact such an approach has on the family. Still others think that the court will vindicate wrongs done to them by the other spouse and seek punishment for that wrong-doer through the court process. Those who seek a mutually effective approach will seek different processes than those who feel they must be adversarial. The following explanations should help you determine which process best matches your goals.

Uncontested Divorce
Traditional Adversarial Litigation
Mediation & Arbitration
Collaborative Divorce
Advantages and Disadvantages of Divorce Options

Uncontested Divorce

Many couples are able to resolve their differences without undue acrimony and without professional help. But the process of reducing their agreement to paper and the further step of obtaining a divorce based upon their agreement is more than they are able or willing to undertake. In such a case, the help of an attorney can be sufficient to achieve their goals. This can be an expeditious and cost-effective approach and Becker Legal, P.C. can prepare and file all paperwork necessary to obtain an uncontested divorce.

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Traditional Adversarial Litigation Process

Traditionally, one party serves the other with legal documents that ask for everything that a court could possibly award. The other party responds with a counter-suit, asking for the same awards from the court. The attorneys then begin the discovery process to find out about the couple’s assets as well as custody and support issues. The attorneys use formal court procedures such as written questions answered under oath (interrogatories), oral questions answered under oath in front of a court reporter (depositions), and subpoenas (use of the court’s power to obtain documents from third parties).

Both parties, through their attorneys, file their respective documents then wait for a series of court hearings to move the case forward over a period of months or even years. Attorneys contact their clients as necessary, and usually send them voluminous copies of all the documents they file and obtain.

Where there are real properties, businesses, professional practices or other tangible or intangible assets that are considered relevant to the marriage, professional evaluators are often retained, at the parties’ expense, to do the necessary appraisals or valuations. In the case of contested custody matters, forensic psychological experts may be retained, also at the parties’ expense, to evaluate the family situation with an eye to a court decision on custody, visitation and other parental matters.

During this process, the attorneys negotiate with each other in an attempt to reach a settlement. This type of negotiation is a process that is often lengthy, and can be bitter and filled with “win-lose” proposals. However gently done, the threat of going to trial if the process breaks down is always present. As the case moves closer to trial, the pressure to settle at these pre-trial conferences and hearings intensifies. Decisions are sometimes made under dreadful pressure. For all of these reasons and more, most divorcing couples do not want to end up in trial.

An actual trial before a judge is truly the last resort for couples who are so entrenched in their positions that compromise is impossible. Although litigation is the costliest and often the least efficient way of proceeding, it is sometimes the only option. Typically, only 2% of litigated divorce cases actually go to trial because the case is typically settled “on the courthouse steps.” Unfortunately, this usually occurs only after the parties and their children have incurred substantial financial and emotional costs. Almost no one wants their future, the future of their children, or their property rights determined by a stranger.

In a trial each spouse’s attorney argues their client’s position on the disputed issues. The skill, experience and effectiveness of the attorneys is of paramount importance. The attorneys representing you should possess clarity of understanding and the ability clearly to educate clients. Witnesses, (including family members, friends, teachers, child care workers and others), may be called, and experts may be brought in by each side to give opinions about child custody arrangements or to value property.

It may be helpful to actually sit in on a court session conducted by your divorce judge. Then you can decide if you wish him/her to make critical decisions involving your future.

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Mediation and Arbitration

Mediation is a method of settling disputes outside of court by using the services of a neutral third party, who acts as a communicating agent between the parties and assists the parties in negotiating a settlement. A mediator may be a lawyer, a mental health professional or other professional with mediation training. He or she does not make decisions about settlement terms but rather assists the participants in defining their own settlement. On an issue by issue basis, the mediator will attempt to understand as fully as possible each party’s point of view as well as his and her needs, interests, and priorities. The mediator also assists the parties in understanding each other.

A couple can utilize mediation at any point in their divorce process. Early Stage Mediation can begin before a case is filed and before attorneys are hired. The spouses will meet with the mediator, with or without their attorneys, and systematically work through all the issues that must be resolved in order to achieve closure. If a settlement agreement is reached through mediation, the mediator will put that agreement in writing. Other documents still need to be drafted by the attorneys and filed with the court in order to complete the divorce process.

Mediation may be used in Collaborative cases as well. See Collaborative Divorce, below.

Mediation may also be utilized, even ordered by the court, after a case is filed and while attorneys and parties prepare for trial.

There is also a form of mediation that may occur by agreement or by order of the court shortly before trial. Late Stage Mediation is usually an opportunity for both sides to present their case briefly to a neutral third party who then tries to give each side some insight into the strength of the case and works between the two sides to find a settlement.
A mediator has an equal and balanced responsibility to assist each party and will not favor the interests of one party over the other, nor favor a particular result. If traditional attorneys have already been retained for a court case, they often do not participate in the actual mediation session (Collaborative attorneys, however, usually participate in the session). A mediator cannot represent either party or draft the documents to finalize the case.

If the mediation process breaks down, parties can determine whether to preserve some, all, or none of the agreements that were reached, and ask the judge to decide disputed issues at trial.

Arbitration, in contrast, uses the services of a third party, the arbitrator, who acts as a private judge and who issues a legally binding decision. Arbitration is used in lieu of a trial to obtain a decision in private, often more quickly than would be obtained from the court. Arbitration can also be useful also where a disputed issue is highly specialized and there is an arbitrator who has this expertise. It can be a more economical alternative to an extended trial for parties who simply cannot agree.

Whatever issues the parties agree to submit to arbitration are thus decided by someone other than the parties. Once the arbitrator makes a final opinion and award, it is submitted to a judge to become the Judgment of Divorce. The judge must endorse and enter the award, unless the arbitrator breaks very limited rules.

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Collaborative Divorce

Collaborative practice is a relatively new, multi-disciplinary approach designed to minimize conflict while enabling divorcing couples to find a way to resolve their differences on all relevant issues. First, both spouses meet with their respective Collaborative attorneys to discuss individual needs and concerns. They agree that they will all work toward an effective solution for both spouses. Then, the couple and their attorneys meet in four-way sessions to reach a settlement without involving the court. Collaborative attorneys have been trained to effectively work with couples that have considerable conflict. Every issue, including property division, custody, and support, is put “on the table” in these sessions.

At the beginning of the process, husband, wife, and both attorneys sign a Participation Agreement. The agreement requires both parties to:

1. exchange complete financial information so that each spouse can make well-informed decisions,
2. maintain absolute confidentiality during the process, so that each spouse can feel free to express his or her needs and concerns,
3. reach written agreement on all issues and concerns outside of contested court proceedings,
4. avoid threats of litigation or adversarial procedures, and
5. authorize the attorneys to use the written agreement to obtain a final court decree.

In addition, instead of using only attorneys for this process, the couple has access to a team of professionals, each specializing in a different field of expertise. As needed, the Collaborative Team may include mental health professionals as coaches for the marriage partners, a child specialist to give the children a voice in the process, and a financial specialist (such as a qualified financial specialist or certified divorce financial analyst) to help the couple analyze the impact of their financial decisions.

All the professionals involved – the attorneys, the mental health professionals, and the financial specialists - have special training to help contain the cost of the divorce process, by using limited family funds in the most effective way possible. The couple can use the financial specialist as a neutral to work on budgeting and property distribution, and a child specialist as a neutral to work on parenting issues. The attorneys are always available for consultation as problem areas are addressed.

The Collaborative Team approach is successful because it uniquely lays a solid foundation for a future parenting partnership between the parents, and between parents and their children. It creates an atmosphere of hope for the whole family, that their future together will be trouble-free and secure, even if the family has been restructured into two homes.

Divorcing parties benefit from the skills, advice, and support of attorneys and other helping professionals while striving to work things out in a positive, future-focused manner. Working together, they are able to dissolve the marriage in a way that addresses everyone’s legal, financial, and emotional needs within the resources of the family. When a settlement is reached, the Collaborative attorneys file the appropriate paperwork required by the court to complete the divorce.

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Advantages and Disadvantages of Each Divorce Option

Traditional Adversarial Litigation
Mediation
Arbitration
Collaborative Divorce

Advantages of Traditional Adversarial Litigation:

• The attorney is active in each step of the negotiations, talking with the other attorney and only conferring with the client as necessary.
• It may be the only choice left after all else fails.
• Decisions can be appealed.
• Clients may feel that they have “had their day in court.”
• If one or both parties desires to do so, he or she is able to extend the conflict.

Disadvantages of Traditional Adversarial Litigation:

• The pre-trial information gathering stage of a litigated case is highly inefficient. Instead of one spouse talking to the other, he or she calls the attorney, who calls the other spouse's attorney, who calls his or her client, and the process is then repeated in reverse. The procedures for obtaining documents can get even more elaborate.
• Parties can often feel like they are left on the sidelines while the lawyers fight it out between themselves.
• Trials are open to the public, as are all pleadings and papers filed with the court.
• Trials can drag on. If the court has a busy docket, the case can be broken up and tried in bits and pieces on different days. Decisions may be postponed.
• Parties tend to involve their children and get them to take sides.
• Trials are very costly, financially and emotionally.
• Trials lock parties into their positions, believing one is the victim and the other a villain. Often they call friends and family in to back up their accusations.
• Parties never forget the bad things their spouse said about them at trial.
• It takes a long time for the family to heal after a trial. Co-parenting after a trial can be extremely difficult.
• Litigation is not a process of solving problems; it is a process of winning arguments.
• Parties who think the court will vindicate their beliefs are often disappointed that their “day in court” resulted in so little punishment for the other party. Judges are rarely as disturbed by perceived wrongs as is the “victim” and therefore the judge’s decision rarely feels satisfying.
• A trial frequently results in continuing conflict even after the divorce is final. Parties then can find themselves repeatedly back in court to enforce or modify trial decisions.

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Advantages of Mediation:

• The process promotes communication and cooperation.
• It allows the parties, not the court, to make decisions affecting their future.
• It promotes positive family relationships by reducing conflict.
• It is confidential. There is no public disclosure of personal problems or finances, unlike litigation where both the trial proceedings, as well as all papers filed, are open to the public.
• Mediation usually costs less than litigation.

Disadvantages of Mediation:

• Because the mediator is neutral, he or she cannot personally advise either party. Thus, the parties must rely on their attorneys to be fully informed of their options.
• If one party has been domineering during the relationship, the other party may not feel as fully capable of expressing important concerns as he or she would if the lawyers were present. (Having the support of attorneys at mediation is an option but it adds another layer of expense).

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Advantages of Arbitration:

• The parties and their attorneys can select their arbitrator, (they cannot select their judge).
• Attorneys are present to help.
• Arbitrators often work faster than a judge to decide disputes.
• Appointments are scheduled with the arbitrator at the mutual convenience of all concerned; no other cases compete for attention.
• Arbitration meetings tend to be less formal than court, so parties may feel more comfortable and confident to speak.
• The parties, not the court calendar, decide when and how much time the arbitrator spends on their case.

Disadvantages of Arbitration:

• Parties pay by the hour for the arbitrator’s time.
• The couple gives up their power to decide and leaves their fate in the hands of a third party stranger.
• The arbitrator’s authority is determined by the contract that the parties sign. Parties must carefully review exactly what issues are to be decided by the arbitrator.
• The arbitrator’s settlement is final and generally cannot be appealed.

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Advantages of Collaborative Divorce:

• You retain control. Though each party has a lawyer, you and your spouse take responsibility for shaping the settlement as the key members of the team.
• You gain assistance. You craft the settlement cooperatively with your spouse while benefiting from your attorney’s advocacy, problem-solving, and negotiating skills.
• You can focus on settlement. Removing the threat of “going to court” reduces anxiety and fear, thereby helping you focus on finding positive solutions.
• You get more for your resources. The Collaborative process may be less costly and time-consuming than litigation. When you reach an agreement, it can be finalized within a shorter time frame. You do not get bogged down for months while you wait for a court date.
• You negotiate a better settlement. Every family is unique and every family deserves a unique solution to the issues raised in a separation or divorce proceeding. The Collaborative process produces final agreements that are frequently more detailed and complete than any order a judge would issue following a contested court proceeding.
• You lay groundwork for a better future. There is no pain-free way to end a marriage, but by reducing stress, working in a climate of cooperation, and treating each other with respect, you and your spouse are creating an environment in which you and your children can thrive after the divorce.

Disadvantages of Collaborative Divorce:

• There are no court imposed time constraints. Since there is no case on the court docket, Collaborative cases continue until a settlement is reached.
• Collaborative practice is not appropriate for all cases. Cases involving issues such as domestic violence, drug and/or alcohol abuse, or mental disabilities/disorders may not be appropriate for the Collaborative process.

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