John Maher:Hi, I’m John Maher and I’m here today with Heidi Opinski. Heidi is a Divorce and Child Custody Lawyer in Connecticut and New York with over 30 years of legal experience in Mediation, Collaborative Law and Litigation. And she represents clients in a full spectrum of family law needs. Today, we’re talking about Divorce and Alimony Law. Welcome Heidi.
Heidi Opinsky:Good afternoon.
John: Yeah. So Heidi, what is alimony?
Heidi: Alimony is support when parties are getting divorced or separated.
John: Okay. What do you mean by support?
Heidi: It’s generally one spouse is required to pay the other spouse support so that they can continue to lead their lives in accordance with how they are accustomed to living. So you need support to do that, and it’s usually the non-moneyed spouse getting the support from the moneyed spouse. And when I say non-moneyed versus moneyed, usually the primary wage earner is paying for the other spouse’s support. And it’s usually typically if whoever’s at home raising the children, they gave up their careers so the other spouse could go out into life and earn their living and contribute to the household and the family. So it’s usually the non-moneyed spouse that receives the support from the moneyed spouse, the working spouse.
John: Okay. And there’s a couple of other terms that are kind of thrown out there, spousal maintenance and spousal support. Are those both the same thing as alimony?
Heidi: Yes, they are. For instance, I work in both Connecticut and New York. So Connecticut calls the spousal support alimony. In New York, they call the spousal support maintenance, but they’re interchangeable terms.
John: Okay. So is alimony or spousal support required to be paid in the event of a divorce, or are there some cases where alimony is not paid?
Heidi: Sure. So for instance, by example, we’re all working these days. Many of the families are two earning spouses working together to pay for their household. So you’ll look at, is one spouse earning so much more than the other spouse that even though both spouses are working and two incomes are coming in, one spouse could still owe alimony or maintenance to the other spouse if one is earning tremendously or substantially more income than the other.
John: And how is that amount of alimony determined? Is it just straight if one person is working and the other person is not, then they have to give half of their income to the other person? Or how is that determined?
Heidi: Yes. So I’m going to also talk about child support a little bit just so you can understand the difference. So in most states they have child support guidelines and a formula on how a spouse pays child support. And it’s the spouse who is not the custodial parent paying the custodial parent child support. So there’s a formula. And by example, they have a formula in New York for spousal support and some other states, I believe also have spousal support statutes. So they have an interim spousal support statute and a permanent spousal support statute in New York. So you look at, and you plug in the numbers of gross income of the parties and the formula will compute a number on what should be paid on an interim basis versus what should be paid if you’re getting divorced at the final end and you’re getting a divorce decree, they also have a formula.
Otherwise you’re kind of looking at percentages, so to speak. If someone’s paying child support in Connecticut as well as spousal alimony, they may pay as much as in the past when support was deductible, they might pay as much as combined alimony and child support of 40% of gross income or 45% of gross income when there were children, combined though. So that would be a combined number. If it’s just paying alimony in the past, when there was deductibility to the amount that was paid, if you just had a spouse, you might pay 30% of gross or 30% of your gross income as alimony in Connecticut, that’s Connecticut.
In New York, like I said, they have a formula approach and that’s the guidelines. But most of the judges know if you plug in the numbers to the formula approach of maintenance, even in New York on a temporary or a permanent basis, the number is very high. So they deviate frequently from the statutory standard of what alimony would be. So a lot of the courts will deviate because if you start paying what’s plugged in, it’s very high. It’s a very high number, and it could be onerous to the payer or spouse. So they reduce it generally in many cases. It’s not just the number that’s there, even if you compute it and play it and look at it, and.
John: So that’s kind of a guideline and then they go from there and they make some determinations of what’s realistic?
Heidi: Yes, because it’s usually so high when they’re starting to pay. And they also deduct the amount that you’re paying for child support. So there’s prongs of the statute that ask, is there child support in this figure also that the person’s paying? So it’ll allow for adjustments, but even with the adjustments for child support, it’s still a high number. It was pushed through politically in large respects. And so the judges know it’s very high and onerous so that they’ll deviate frequently from just what the number is.
John: And how is the duration of alimony determined? Does it just keep going on forever and ever, or is there a certain number of years that it lasts or does that differ in different cases?
Heidi: Yes. There are guidelines. And even in New York, they have guidelines like percentages. If you are married one to five years, it would be different than 15 years or 20 years. When you start getting into the longer years, there’s a longer duration that’s suggested, but it differs. And it’s all a negotiation tool too, because if you’re getting a larger number in an equitable distribution, you may get less alimony or less term. Or factors such as ability to earn an income may come into play. Maybe you need to go back to school. The concept is spousal support should be paid to allow the other party to get back on their feet, not that you’re just going to be paid and don’t have to do anything. The idea that you’re going to better yourself and get back on your feet and is rehabilitative alimony and maintenance. But that said, if you’re married for a long term, let’s say you’re married for 30 years and you never worked, you could even get lifetime alimony in different states.
John: Right, because it might not be realistic for you to be able to go out and get back to work. You don’t have any work history and you’re older.
Heidi: Correct. Exactly.
John: Yeah.
Heidi: You could be in your late 50’s. Who’s going to hire you?
John: Right.
Heidi: So you could end up being a case where lifetime alimony is an appropriate request.
John: There’s another term that I’ve heard of called temporary alimony. Is that related to that?
Heidi: So temporary alimony, which is also called pendente lite alimony, and that’s just Latin derivative of during the interim of the case until you resolve it. That means basically that you’re going to get spousal support while your case is being litigated or reviewed or negotiated or settled. And you can apply to the court for pendente lite alimony and child support and other payments, third party payments like pendente lite payments for the house, or for medical expenses, or unreimbursed medical expenses, or life insurance, or for the car, other expenses that everyone faces them day by day. And now all of a sudden you’re getting divorced… who’s going to pay for the car? Who’s going to pay for the house? Who’s going to pay for…? And it’s generally the moneyed working primary wage earner or spouse that ends up paying.
John: And can the amount of alimony change if the circumstances of one of the people change? For example, maybe the moneyed spouse loses their job and can’t make those payments anymore. Or maybe the person who is not the moneyed spouse gets a big raise or a new job or a promotion or something like that and now can fend for themselves and they don’t really need that money anymore. When those circumstances change, can it be adjusted?
Heidi: Yes. So that’s called modification. And the basis for change is usually a term of substantial change in circumstances. So what’s a substantial change? It’s exactly what you said. Someone lost their job, or someone got a raise or you could go back in and ask for a raise because someone got a significant raise in their career and salary. You can also go in because someone got fired, like you said, lost their job, or someone got demoted and they’re not getting as much income as they used to.
You can go back into court and move for modification based upon substantial change in circumstances. And what’s substantial is what a judge believes is substantial when they hear all the facts and circumstances of the case. I can tell you, it’s very difficult to change if you do get an interim pendente lite award of support, it’s very difficult to change and modify no matter what happens even in the interim of the case. Usually the courts will say that speedy trial rule applies. I’m not going to modify the support. You should just go to a speedy trial. And of course there’s never a speedy trial. But those are the terminology that a court might use. I’m going to defer this to a speedy trial.
John: All right. Any final thoughts on alimony in how it relates in divorce cases?
Heidi: It’s something that’s a significant factor that every person should think about when they’re getting divorced. Certainly child support and alimony maintenance is a significant factor, and it’s as important as dividing up the assets. So yes, it’s a very important factor to consider.
John: All right, well, that’s really great information. Thanks again for speaking with me today, Heidi.
Heidi: Thank you.
John: And for more information, visit Heidi’s website at ctnydivorcelawyer.com or call the law offices of Heidi E. Opinsky, LLC at [nap_phone id="LOCAL-CT-NUMBER-1"].
]]>John Maher: Hi, I’m John Maher. I’m here today with Heidi Opinsky. Heidi is a Divorce and Child Custody Lawyer in Connecticut and New York with over 30 years of legal experience in mediation, collaborative law and litigation. And she represents clients in a full spectrum of family law needs. Today, we’re talking about divorce and division of property. Welcome Heidi.
Heidi Opinsky: Good afternoon, John.
John: Heidi, what is the division of property or distribution of property as it relates to divorce proceedings?
Heidi: Yes. So one of the major aspects of a divorce is how the court, or the attorneys, or the parties are going to divide up property and separate the property between the spouses.
John: Okay. And I’ve heard of two different things, equitable distribution and equal distribution. What are those and how are they different?
Heidi : So equitable distribution is the more common way a court in the various states divides the property and that’s what they deem to be equitable. It’s not necessarily equal, meaning 50/50. That would be more applicable in community property states such as⦠California has community property and that’s 50/50. So for instance, equitable could be that the court divides it up where one spouse may get 60% and the other 40% or 75/25, 70/30, 60/40. It could be however the court decides to do it. And it may end up that the court actually does the division. In most cases, they do do the division equally, 50/50, in most cases, but not always. So they may divide certain of the assets, 50/50 and the others differently.
And that’s where a separate property may come into effect where they might decide to divide it differently because let’s say someone inherited something from their parents when they were coming into the marriage or shortly after the marriage. And they got a large inheritance. Why should the other spouse, maybe 2, 3, 4, 5 years into the marriage get 50% of that. Now, what’s interesting is I practice in both New York and Connecticut. So New York is a separate property state. Connecticut is what’s called an all property state. So what many people don’t really understand, in the tri-state area; they just assume if they work in New York, they hear all their buddies or friends or colleagues saying, “Oh, I’m in New York, separate property. Don’t worry about it.”
You have a house in Connecticut, you’re getting divorced in Connecticut, you reside in Connecticut, it’s in all property state. There is no separate property. So this inheritance that I’m talking about in New York, by statute is separate property, unless you commingle it or transmute it and it stays separate by statute. In Connecticut, not the case, your parents die, you get your inheritance, you control it. It’s part of the marital estate that gets divided. People are shocked when I tell them that. Estate attorneys handling wills, trusts in the states, are shocked when I tell them this in New York. Estate attorneys in New York don’t realize their clients are living in Greenwich, Connecticut, and it’s an all property state.
And I have to then advise them, “Stop telling your clients that their parent’s inheritance is separate property, it’s not.” If they have it and it’s been in their possession and control, it’s part of the marital state.
John: So what other types of factors are used to determine the division of assets, again, both in New York and Connecticut.
Heidi : Certainly the part, the court will look at who earned the asset primarily, but that doesn’t mean anything if you’re in a medium to long term marriage. They’re going to divide it up. So they don’t look to hurt the spouse that decided to stay home and raise the children and forgo their career, to then let the other person go out and work every day and support the family. It’s a give and take. And therefore they’re not looking to hurt either side. And that’s why it’s equitable.
But sometimes they’ll say if you earned 50% of your 401K or your pension, before you even married this person. You could come in and say, “Okay.” And then the marriage wasn’t long, it was three years, four years, five years. “I don’t want to split half of my 401K, why should I?” So you can go in and argue and say, “This should be an equitable distribution. I shouldn’t have to split it all up because I earn 50% of it beforehand,” without any contributions by the other spouse.
John: And how is the division of property complicated when you’re talking about moderate to high net worth couples. I’m thinking, you hear a lot, all the time about celebrities getting divorced, and then maybe their spouse is not a celebrity. And you hear a lot about them getting, “Oh, they got X amount of dollars in this settlement.” Or something like that.
Heidi : Well, they actually used to value celebrity status in New York, which they don’t do anymore.
John: Interesting.
Heidi: But they used to do that and put a value in a number on it because the person so exceedingly made such…. this is like paper, funny money kind of thing, but they don’t do that anymore and put values on celebrity status in New York anymore. But they used to. They don’t do things like that and value that in Connecticut. But they will look at contributions by a spouse. So did that person assist the person in their career? Did they go to the meetings? Did they help in the business? Did they go into work every day with the other spouse?
And in New York, for instance, they make distinctions between active assets and passive assets. So did this asset go up and down because of the market, such as the house and you’re not a builder. So it just goes up and down because of the market, you have no control over it. So is that person going to share in the increase in the equity and value in the house? Or is it going up and down and the business is earning oodles of money because that person is working every day, tirelessly and sleeps three hours a night to get this start off the ground and make this happen? And the other spouse didn’t help one iota.
That’s where someone might come in and say they’re not entitled to 50/50, or maybe they should get a haircut on that. There are arguments but most of the time, the courts look at what was earned during the marriage and try to divide it up as equally as possible, even if you’re not in a community property state. They would maybe tilt it north or south, if there’s bad behavior on the part of one spouse.
So let’s say one spouse… In Connecticut, they still consider marital fault. And one spouse, let’s say that one spouse is a serial adulterer. And I say, serial, not just had a hiccup. Everyone can have a hiccup. We’re all human. Judges are human too and have had hiccups. But is that a hiccup or is this someone who’s had 10 affairs? Was it one affair and a mistake or is it 10 affairs and it’s constant? And therefore, now that they’re getting divorced, they’re going to give the other spouse 60%, not 50 because of that. Those are considerations that could be argued, along with what was the premarital component or ownership. When you do own a lot of property before the marriage and it’s the second time marriage, I highly recommend the parties get prenups.
John: So that you’re determining before you get married, you’re determining, “Hey, if in the event that we get a divorce, then this is how we’re going to divide it up.”
Heidi : And there’s a reason for that. Trials are very expensive. Legal fees are very expensive. It’s not like you’re going in for dinner and a nice dinner, even at that. Legal fees are very, very expensive and trials are very costly and time consuming. So if you are going down the aisle the second time, I know you believe that this will never happen again, but it could. And do you want to decide how you’ll divide it up by agreement in advance. And it’s usually the best time to do that because you’re in love and the person wants to be married to you. And they may say, “I don’t care what you put in the writing. I love you so much. It doesn’t matter. I’ll sign whatever you want me to sign.”
That’s not a fair prenup either, by the way, but it happens. And then there’s first time marriages also, where I say parties should consider prenups because of the division of assets. What if the one child has wealthy parents and the parents are in their eighties, they’re not going to live that much longer, they’re going to die during this marriage. So maybe you want to keep all of their assets separate because Connecticut’s an all properties state. The minute you get it’s up for grabs by the other spouse.
And that inherently, I don’t think sounds fair, it sounds a little unfair doesn’t it, to you? Any person I tell this to says that and it’s true. Why should all of your parents’ money go to a spouse that you’ve been married to for a few years, because they happen to die during the third year of your new marriage.
John: Right.
Heidi : But you have to protect against that in Connecticut, because the laws are that it’s an all property state and you decided to marry this person and your parents died. It’s all part of the marital pot, so you have to be careful.
John: Whereas you said in New York, it’s a separate property state, so it’s a little different.
Heidi: Yeah. By statute, inheritances and trusts are not marital property. So if you don’t do anything to make your parents’ inheritance to you during the New York marriage separate, and you keep that asset separate, then it’s separate. But you put that money that you got from your parents inheritance into a joint account, you’re now making it marital.
John: Okay. So it’s all about what you do with it and if you keep it separate or not.
Heidi: Right. It’s what you do with it.
John: Okay.
Heidi: And it gets a little bit more blurred too, between active and passive assets and New York considers anything that’s really active, that the other spouse contributed to it and should share in it. Even if they’re there at home, because they’re not going to punish a housewife for raising a child, just because you went into work and are running your business. Does that make sense?
John: Right.
Heidi : So they look at the quality of the asset and who did what to it and who contributed to it? Should it be divided equally? Should it not be divided equally? And that’s where equitable comes in.
John: Okay. There are certain types of property where it might be difficult to actually determine a value like you own a business. How much is that business worth or is that business going to be worth more three years from now, five years from now than it is now? Stocks or real estate or things like art collections or whatever. How does that get determined?
Heidi: So when you have a business or an asset such as restricted stock units or vested and unvested retirement assets, that’s where you may need an actuary or an expert forensic accountant to come in and value. So actuaries generally valued retirement assets, like a pension. And forensic accountants value a business. And a real estate appraiser values real estate.
So when you’re going to court in order to put a value on something, you can stipulate to it by parties, as parties, and agree to a number. But if you can’t, then you have to hire these other parties. An expert forensic accountant to value a business, a real estate appraiser to value a house, or an expert appraiser to value jewelry or a state asset, or paintings. You may have to get an art appraiser to value a Rembrandt, for instance. You would get an actuary to do the pension valuation. So the attorneys don’t put numbers on that.
John: Okay.
Heidi: We only put numbers on it when the parties are able to come to an agreement on a number. When they can’t come to an agreement on a number, we have to suggest to them very strongly that we retain an expert forensic accountant to value the business, or a real estate appraiser to value the real estate, or pension appraiser, actuary, to do the pension appraisal, or a pension attorney. They have attorneys that are pension attorneys that could also value a pension.
So you need that number for the court to accept it because the court will accept what the parties stipulate to. What one side says, what the other side says, what one expert says, what the other expert says, or they’ll come to their own determination of a number. But the experts’ valuation numbers on a business is what’s accepted as the best value.
And different experts can come in with widely different numbers on the same asset. And then the court can decide, “I agree with certain parts of certain reports and testimony and expert testimony, and I disagree with others.” And come up with another number or accept one expert over the other. That’s what happens.
John: Or take an average or something.
Heidi: Or an average, yes.
John: Now, does that expert or appraiser have to be a neutral third party that’s not hired by either one of the divorcing parties?
Heidi : You can actually stipulate, if you know you have to value a business for instance. But you don’t want to litigate over warring experts, so to speak, with their different numbers. The parties can stipulate that one neutral expert will come up with a fair and equitable number. And the attorneys generally will say, “Okay, let’s agree on one of the experts. We all know their names. We’ll retain X expert and we’ll call them together so they understand this will be a neutral valuation.”
So you’re not siding with the husband who works the business or the wife who wants more of it than he’s offering. You’re going to do a neutral number and split it equally between the two of them. And this is a neutral number and as attorneys, we generally agree, “We’ll contact the expert together so they understand that it’s a neutral evaluation.”
John: All right. Well, that’s really great information, Heidi. Thanks again for speaking with me today.
Heidi: Thank you.John: And for more information, visit Heidi’s website at ctnydivorcelawyer.com. Or call the law offices of Heidi E Opinsky LLC at 203 653 3542.
]]>The laws pertaining to divorce records in New York are some of the strictest in the nation. The state does more than most others to protect the confidentiality of family legal matters, particularly the details of what happened or what decisions the couple reached or a judge made on their behalf. Let’s explore Domestic Relations Article 13, the statute that protects divorce decrees from the public eye.
DOM – Domestic Relations Article 13 – Provisions Applicable to More Than One Type of Matrimonial Action 235 – Information as to Details of Matrimonial Actions or Proceedings
An officer of the court with whom the proceedings in a matrimonial action or a written agreement of separation or an action or proceeding for custody, visitation or maintenance of a child are filed, or before whom the testimony is taken, or his clerk, either before or after the termination of the suit, shall not permit a copy of any of the pleadings, affidavits, findings of fact, conclusions of law, judgment of dissolution, written agreement of separation or memorandum thereof, or testimony, or any examination or perusal thereof, to be taken by any other person than a party, or the attorney or counsel of a party, except by order of the court.
Essentially, the above means that without a court order, the only way divorce records in New York can be accessed is by either spouse involved in the divorce, or their legal representative(s). The finalized divorce settlement is sealed for 100 years, and cannot be accessed by any other party. If an attorney who is not listed on the divorce settlement as a legal representative wishes to access divorce records in New York, they must make a written request filed with the County Clerk’s office in their jurisdiction. The request must include permission from either spouse to access copies of the divorce settlement and supporting documents.
One thing that is not kept confidential about a divorce in New York is the names of the parties who are dissolving their marriage. These records are public and can be searched; anyone can find that you and your spouse did, in fact, get a divorce. An attorney can request that you and your spouse’s names be withheld, but this is not a guarantee that all of your divorce information will remain private.
Exceptions to the rule are if you are involved in another civil or criminal case to which the divorce is applicable, a family court may rule to unseal some or all of the records for the purpose of providing evidence. If there are certain motions made in the case, the court may choose to make these public. In the event that your divorce case proceeds to appellate court, typically those decisions are published.
The best way to protect your privacy during a divorce is to explore alternatives that don’t involve court or litigation. For example, mediation or arbitration may be good ways to reach an agreement and finalize your divorce without having to go through divorce court. This is particularly true if you have a high net worth or especially contentious divorce. High profile divorces can easily become a media frenzy, even when New York laws keep most of the details under wraps.
If you are thinking about divorcing your spouse, or your spouse has told you they want to get a divorce, you should reach out to a New York divorce lawyer to learn about your legal options. This is especially important if your spouse has already had you served with divorce papers.
Heidi Opinsky is a veteran New York divorce attorney who can provide you with comprehensive legal support before, during, and after the dissolution of your marriage. Attorney Opinsky will meet with you one on one to discuss the details of your case and to strategize a plan of action that protects your legal rights and your family’s best interests. Call today to schedule your consultation by dialing [nap_phone id="LOCAL-CT-NUMBER-1"].
]]>John Maher: Hi, I’m John Maher, and I’m here today with Heidi Opinsky. Heidi is a divorce and child custody lawyer in Connecticut and New York with over 30 years of legal experience in mediation, collaborative law, and litigation. And she represents clients in a full spectrum of family law needs. Today we’re talking about child custody in a divorce. Welcome, Heidi.
Heidi Opinsky: Good afternoon, John.
John: So Heidi, what is child custody as it relates to divorce?
Heidi: So child custody is generally which of the parents is going to be raising the child as a primary physical custodial parent. But then there’s also different types of custody. There’s legal custody, which is decision making, and there’s physical custody. Where is a child going to reside and be primarily with which parent as a residential parent? And it could be shared.
John: Tell us a little bit more about the difference between legal custody and physical custody. What are the differences there?
Heidi: Sure. So legal custody is decision making. Which parent is going to make major decisions for the children versus day to day decision making for the children? And in most cases, both parents have joint legal decision making regarding the child. And that makes sense because if you’re capable of making a decision in the best interest of the child, you should be able to make that decision. When you don’t and can’t make decisions independently in the best interest of the child, that’s when you may lose decision making control or authority.
So for instance, someone who’s a drug addict and they’re not capable of stopping their drug habit, and they’ll take drugs while watching the children. Obviously, is that person making good judgment calls with regard to how to raise the children in the best interest of the children? No, they’re being selfish and they’re dealing with their drug problem more than the child, so they may lose authority to make decisions in the best interest of the children if they can’t curb their drug habit, or if someone’s an alcoholic and they can’t stop drinking while they’re with their children. So they may not make the best judgment calls when they’re under the influence of alcohol, so they could lose authority in decision making control over their child too.
So the courts are looking for parents that have good judgment and are able and capable of making wise, prudent decisions in the best interest of their children. So in most cases, people can do that, even though they may hate each other, they may not make the best decisions with regard to how each other behaves towards each other, but they can do it with regard to their children. So even though they’re getting divorced, and even though they may be battling it out themselves, they are still capable of making wise, prudent, cogent decisions with regard to the best interest of their children. So that’s joint legal decision making.
So if you can’t, some party may come in, either of the spouses, and say, “I want sole custody.” What they really mean is sole legal custody, making decisions totally 100% for the children, irrespective of the other parent. So that’s not very common, obviously. That’s in rare circumstances. And even when you have a problem, such as alcohol or drugs, the courts are very lenient and they want you to get better. They want you to rehabilitate yourself, so as long as you can prove that you might’ve had a problem in the past but you don’t now, they’ll give that decision making authority and control back to you. They’re not looking to take that away from you. Most people think, “Oh, the judge is not on my side. They’re taking control away from me.” They’re not deciding one parent’s better than the other. They’re deciding what’s in the best interest of the child. It’s not which parent’s better. What’s best for the child?
And if they see this, there’s a serious problem, they certainly will limit that authority and control because they’re protecting the children. They have an obligation as a court to protect the children if they’re in danger. But you have to show that they’re in danger. So even if you have a spouse and they drink, and you may not like how much they drink, if they can control their drinking while they’re with the children, and it’s not interfering, the courts aren’t going to take that child away from the parent, even though one parent may have different ideas of how much is too much or not. As long as you’re okay while you’re visiting the child and the child’s not in danger, even if a parent drinks, they’re not going to take the child away from the parent or take their authority away. It has to be significant.
John: So then how does that relate to physical custody? I assume it’s normal for people to have both joint legal custody and joint physical custody, although obviously the person, the child can’t be in two places at once, so you have to work something out in terms of when they’re living with one parent and when they’re living with another. But is that pretty standard that you have joint physical and legal custody?
Heidi: What you really have in most cases, it’s one parent that’s listed as the primary physical custodial parent because in most cases, there’s usually one spouse that’s the primary wage earner, and they’re going out and working every day and working more than 40 hours a week. Some people work 100 hours a week. So most cases you’re not necessarily at a 50/50, so one person tends to be the primary physical custodial parent, and the other parent could have a liberal access schedule. And sometimes it is shared, and you say they have shared physical custody. It’s a draftsmanship issue. A lot of people in their minds when they’re getting divorced, don’t want the other spouse to have primary custody just because they’re so angry. Why do they get primary? I’m just as good as they are. I’m going to work. I want shared physical custody.
But the reality is when you look at it, you’re going to be at work for the primary part of the week. This person isn’t working as much, or working part-time. So it ends up being a draftsmanship argument issue of whether this person’s the primary, or it’s shared physical. There’s also a reason for it too because if it’s a true shared physical, you can get a haircut on child support payments. So a lot of the noncustodial parents, who are the payer spouses, who are the wage earners, will seek to get …they’ll say, “I want shared physical custody because I don’t really want to pay as much.” So it ends up being a little bit of a strategy that way. But is that really what’s happening? Or is it really one parent’s going to be the primary, you just don’t want to pay as much child support? So let’s be realistic here. This person’s going to be the primary. You’re going to be the visiting parent. It’s not exactly 50/50. You’re not going to get a haircut on the child support, and that’s how it’s worked out.
But generally speaking, what should be done is always what’s in the best interest of the child. If it’s best for the child to really see each parent 50/50, that’s what should be coordinated. If it’s not, and it’s just a strategy to take a haircut on the support payments, maybe not so much.
John: Right. So when it comes to visitation and custody and determining that, can a divorce or custody attorney help in that determination?
Heidi: Yes. So generally speaking, we look, as attorneys, and say, “There’s usually a minimum or a pro forma type of schedule.” What would that look like? Certainly, alternate weekends, Friday after school to Sunday evening, or Monday delivery to school, that’s not unusual at all. That would be a pro forma. You’re almost going to be guaranteed if you’re a good father, good mother, you’re going to get at least alternate weekends.
I come into cases, and particularly when it’s out of wedlock, I find it more so than when it’s in wedlock, but spouses may hate each other at the time. And they just want to tranche on any minute that the other side’s going to get with the child. And I tell clients, don’t start counting minutes. I want … They’re getting 20 minutes more, or this, because judges hate that. They don’t want any parent to be counting time with regard to their child. If you start counting minutes, you already know that there’s a problem.
John: Right, because it just indicates that there’s more of a selfishness on the parents’ part, like you said before, than it does that they’re looking out for the best interest of the child.
Heidi: Exactly. It screams out to judges who do this day in and day out, and see 30 cases a day. And you’re going to come in, and so the minute I start working with clients who start counting minutes or days, I sit them down right away and tell them, “You’re not thinking about this correctly.” And sometimes it works, sometimes it doesn’t.
John: So does a custody agreement need to change if one or more parents’ living situations change?
Heidi: Yes. So frequently, parents want to relocate, so you have to determine if they’re going to move out of state. Is it going to be a close move? Is it going to be a large move? Are you moving to England? Are you moving to California from the Northeast? Are you moving to one area in New York, the Bronx to Queens? This impacts the schedule of access. I had a case just last week, the parents lived literally on the same block of each other. The mother wanted to move to Brooklyn from the Bronx. The courts don’t really consider that such a relocation case.
John: Right. It’s in the same city.
Heidi: Yeah.
John: But it would still affect whether or not … Previously, if the kids just had to walk down the street to their dad’s house, or their mom’s house, or whatever, and now you have to drive them all the way across town.
Heidi: It’s an hour, another hour out of your day.
John: That’s a big change.
Heidi: Yeah. And you have to negotiate it. But certainly, that will change the parenting plan that gets worked out. But a pro forma plan usually is minimum. I can say out of the starting gate, any parent’s going to get at least dinner visitation during the week if they want it. They’re going to get alternate weekends if they want it. They’re going to get shared holidays, birthdays, things like that if they want it. They’re going to get time during the summer when the child’s not in school if they want it. So when I have a parent that’s like, “Well, they can have Friday night,” or, “No, Christmas is my holiday,” well, it’s not going to be that way anymore. You know?
John: Yeah. You don’t get to determine that.
Heidi: Yeah, exactly. But that’s what happens, and it’s usually the parent who’s been the primary that thinks they’re going to dictate and control the other parent’s schedule, and they have to come into reality. No, you’re getting divorced and you don’t have the right to dictate the other parent’s schedule, or what they do during their schedule.
John: Do the kids at all have a say in that at all? Can they determine that, hey, I’d rather live with mom than dad, or I want to spend Christmas every year with Mom, but I’ll spend Easter with Dad? Do the kids have a say in it?
Heidi: That’s an excellent question because kids, number one, obviously can be influenced by either parent. And also, yes, they also sometimes are more mature than the parents are during the divorce. That happens many times where I see the children are absolutely the more mature side of the coin here of either parent, and sometimes of both parents, they’re the brighter and more logical and more mature. So yes, as a child ages⦠a 14 year old child can decide more so which parent they want to be with more than a two year old, or a six year old, or a five year old, a seven year old, eight year old.
So as a child matures and develops, the courts believe they have more maturity and skills and knowledge to make appropriate choices for themselves on, I want to be more with Mom, or Dad, or what have you. Hopefully it’s not just favoritism or undue influence. So you hear alienation, those types of terms that come up. This parent has alienated the child against me, or undue influence, or poisoning, those kinds of terminology. Most of the cases aren’t like that. Obviously, we’re all hopefully rational, intelligent people that aren’t just looking to harm the other side, or be angry and acrimonious. So if we are truly thinking about the best interest of the children, there’s an ebb and a flow, a give and a take, a sharing a cooperation. And hopefully that’s how most cases will resolve. Sometimes it doesn’t though.
John: Right. You mentioned before that it can be a problem if one parent, maybe they’re the one who has the most physical custody. And maybe they get a job in another state and they have to move for their job, or they wanted to move for their job, or maybe they just want to get away from the city that their ex spouse is living in, and they just want to move. Can they do that? Does that cause problems in terms of custody? And can the other parent, who’s staying where they are, block that other person from moving? Or how does that all work?
Heidi: That is usually termed relocation cases, or radius cases. And you can actually stipulate an agreement, for instance, if you know I’m working at GE, but it’s going south, everyone’s leaving. I’ve investigated the market and my new job is now in Massachusetts and I can’t find it elsewhere. You could be involved in a relocation case where the one parent’s fighting, no, you can’t leave. You have to prove to the court that it’s in the best interest of the child that you have to relocate with the child, if you’re seeking to relocate with the child. So you can’t just decide, you do have to go back to the court.
You can either stipulate it in an agreement. If you know it’s going to happen and there’s a likelihood, I always try to get the clients to agree to it in their settlement agreement in advance, in the event that I do have to move for work, this is how the new schedule and parenting plan will look. Do that in advance so you’re not litigating. But if you can’t, and you can’t agree, you have to go back to court and ask for relocation and modification of the parenting plan.
John: And like you said, you’d have to prove that-
Heidi: You can’t just up and leave.
John: Right. This is my career. I’m getting a huge promotion and this is going to help us be able to pay for college or whatever because I’m doing this.
Heidi: This is always shocking to people. I’ll give you an example. You get divorced. You fall in love with someone. They live in London. They have an ongoing career in London. You’re now married to this person. You have to leave and move to London. Well, you may have to leave, and you don’t get the same rights with your kids as you thought you were going to get.
I mean, let’s say you’re even the custodial parent. I’ve seen the courts here in Connecticut. There is a case where a gentleman married his new wife in London. They were in London. He didn’t get custody of the kids because the mother had rehabilitated herself and the court determined that it would not be in the best interest of the children to now not have that relationship with the mother who got rehabilitated, who did originally have problems, so the father was the custodial parent. And he didn’t get to move to London with the kids. The mom got custody. So you could lose custody for a situation like that.
You have to make serious decisions. You can’t do it willy nilly. It’s not something that you can do with a wave of the hand, with any short sightedness at all, because the courts seriously consider the best interest of the children. And even the marriage to the other woman, and she lives in London, and he had to move to London, that’s your choice. That’s how the court viewed it. That’s your choice.
John: But it was in the best interest of the children to stay in the city that they were in and continue to stay in their own school.
Heidi: And the mother had rehabilitated, and they were now having a good relationship with their mother, so the court didn’t want to disturb that. It depends on the case.
John: That’s all very interesting. And thanks again for speaking with me today, Heidi.
Heidi: Thank you, John.
John: And for more information, you can visit Heidi’s website at ctnydivorcelawyer.com. Or call the law offices of Heidi E. Opinsky, LLC, at [nap_phone id="LOCAL-CT-NUMBER-1"].
]]>Here’s what to know about divorce arbitration, its benefits, and how seasoned family attorney Heidi E. Opinsky can help you determine if it’s right for your family.
Divorce arbitration is one of the most popular divorce lawyer alternatives and is similar to a traditional divorce trial, except that instead of attempting to resolve their disputes in a public court of law, cases are handled in private before a special type of judge called an arbitrator. Unlike mediation, an arbitrator can make decisions for you and your spouse on your behalf if you cannot reach an agreement together.
Before proceeding with divorce arbitration, you and your spouse will both sign an agreement that says neither of you will pursue divorce litigation while the arbitration is ongoing. You may not later litigate your divorce once an arbitrator has made a final decision, however, if no decision has been made, you do have the option to halt the arbitration process and take up litigation.
Although many people mistakenly assume that mediation and arbitration are the same things and the opposite of litigation, this is actually untrue. Mediation does not allow a judge to make any decisions for you and your spouse. Instead, the only time a judge becomes involved in the process is when the divorcing couple reaches an agreement that is ready to be finalized and become legally binding.
Another key difference is that during mediation, you work with a neutral, third-party mediator who helps you and your spouse make compromises and reach agreements on the multiple facets of your divorce. Arbitration, on the other hand, does not require the presence of a mediator.
There are a number of benefits to arbitration, such as:
There are a few things to keep in mind before you go all-in on divorce arbitration, including but not limited to the following:
Heidi Opinsky is a veteran Connecticut and New York divorce lawyer with extensive experience in divorce arbitration. It may be difficult for you to determine if mediation, arbitration, or litigation is the right choice for you, but Attorney Opinsky can help. Call now to learn more about the benefits versus the caveats of arbitrating your divorce or to book your initial consultation by calling [nap_phone id="LOCAL-CT-NUMBER-1"].
]]>John Maher: Hi, I’m John Maher. I’m here today with Heidi Opinsky. Heidi is a divorce and child custody lawyer in Connecticut and New York with over 30 years of legal experience in mediation, collaborative law, and litigation. And she represents clients in a full spectrum of family law needs. Today, we’re talking about contested versus uncontested divorce. Welcome Heidi.
Heidi Opinsky: Good afternoon, John.
John: So Heidi, we’ll start with uncontested divorces. What is an uncontested divorce?
Heidi: An uncontested divorce is when the parties have already agreed to their settlement and resolution and they’re prepared to put all the paperwork together that is required by the judge to ultimately grant a divorce between the parties or dissolution of marriage or parenting time and parenting plan. And so they’ve already agreed to the terms and it’s typically written up into an agreement that’s called a separation agreement or a stipulation of settlement.
People get confused. They always say to me, “Well, I want a divorce. I don’t want to just be separated.” When you talk about a separation agreement, it’s a term that’s largely interchangeable with a settlement and it’s basically this stipulation of settlement or settlement agreement and separation agreement all interchangeable. You have already resolved it and therefore you’re not contesting anything before the judge regarding your case. So it’s resolved. And as long as you have all the paperwork in order and it’s submitted properly to a judge, the judge will be able to divorce the parties.
John: In an uncontested divorce, you said that the two parties agree on what the settlement is going to be. How do they get to that point first though? They’re not agreeing on everything first and then going and getting divorce attorneys and having them just file the paperwork. The attorneys are working, they’re doing some discovery phase.
They’re working with the two parties, maybe you’re meeting together, you’re working things out, and then you’re coming up with an agreement that then you’re putting before the judge in an uncontested way. But there’s still some time and things that have to happen before you get to that point, right?
Heidi: Yes. So it can happen that two people will have an agreement and come to one attorney or two attorneys and say, “Can you guys write it up for us? This is our roadmap.”
John: We’ve put it on a piece of paper. This is kind of what we want to do. Can you just make it official?
Heidi: And then as counsel I’ll say, “Have you considered this? Have you considered that? Is that something that you intended?” When I look at what they are coming to me with, I still ask questions because I can look at it and say, “Okay, this is fair and equitable. This seems fair and equitable.” Or I can look at it and say, “Whoa, this is definitely one sided and someone’s unduly influencing another party.”
So it typically is not the case when most people come and say, “Here’s my roadmap, this is what I want, and we’re done.” That’s when the parties really don’t have very much to fight about at all. When there is something to fight about, they can come to you and it could be very contested and contentious and acrimonious at the beginning, but then they could end up shortly after speaking to counsel. Okay, that sounds fair.
Or this counsel starts talking. As long as we have all the numbers and values and information regarding custody and visitation, who’s the parent who’s most likely going to be the custodial parent or the primary physical custodial parent or is it going to be shared? Once we know that we can start writing agreements. Until then, we can’t. So any cases typically contested until you have at least a modicum of information that can be garnered that would permit you as an attorney in good faith to say, I have enough information before me to start drafting a separation agreement or a stipulation of settlement.
John: So you could start, like you said, in an acrimonious sort of way where you’re battling with each other a little bit, but then ultimately it’s drawn up and it’s presented to the judge as an uncontested divorce.
Heidi: Yes.
John: Yeah. Okay. So then what is a contested divorce then and how is that different?
Heidi: So as I said, any case first walking through the doors, most of them are contested because you don’t know how you’re dividing up the assets, the debts, the support, how much, who’s paying who what, who’s seeing the child when. So most cases are an open slate. It’s not at that point. So as lawyers, what we’re doing from day one, and I do it from the initial meeting when I meet a client, I’m already planning that divorce.
What information do I need to resolve this in a fair and equitable manner? And I do that from the minute I meet the client. I start telling them what they’re supposed to be gathering for me so I can get values on assets and liabilities and income, and so I can calculate support for a child or for a spouse. And then values on all the assets and liabilities so I can divide it up properly.
And that starts in my mind from the minute I meet the client, this is what you’re supposed to start doing. It’s almost divorce planning strategy, so to speak, in the sense that I instruct the clients what they should be looking for, what they should be gathering. And a lot of times unfortunately, you’ll have a spouse on the other side that was a little faster to the realization of the divorce than you were. And she’s got all the paperwork emptied out of the house and in the other attorney’s office already and you have to get it through discovery. But many times the paperwork is still in the house.
And I’ll tell the clients, start making copies of things, but the other spouse is certainly entitled to this information. It’s not just yours. Make copies and make a file for me. Start a file and this is what you need to get. So that’s contested, but we’re working toward uncontested. I’m always working toward an uncontested divorce.
John: Right. That’s your goal is to try to get it to the point where you’re going before the judge and saying, this has already been agreed to.
Heidi: I’m not the type of attorney… There are others out there that are different, but I’m not the type of attorney that’s forcing a client into litigation and into the court. And it’s very simple. That person with the black robe cannot make decisions better than you can or better than your spouse. There’s just no way. And most of these cases are not that complex.
No matter how much assets you have or how big the assets are, you’re just dividing up information with more dollar signs. But is it really more complex? Not necessarily. So I am always of the mind of let’s try to put the power in the people who themselves were in love with each other and now they’re not. But let’s all be mature and rational and smart. Certainly smart.
John: The details of your lives and exactly what’s going on a lot more than a judge would.
Heidi: And help them settle the case. Because if you go to court, it’s costly, it’s time consuming, especially post COVID-19. The dockets are backlogged, the judges are overworked, getting to hear anything expeditious that’s almost a misnomer post COVID, unless it’s dealing with physical violence or the best interests of a child who may be in danger. Nothing gets heard expeditiously anymore in the court system. So it’s almost giving the power back to the people of the divorce, meaning the parties. You’re better off trying to sit there and resolve it with your counsel than think that you’re going to get a better decision from a judge because now when are you going to get that decision? Three years from now? So it’s actually COVID has forced people to try to settle their disputes in divorces a lot more readily than how it used to be.
John: So when does it kind of hit that point though where it does become a contested divorce and you have to move toward the court or trial?
Heidi: Well, maybe hearings on individual aspects, breaking it down like custody or spousal support or child support or a contempt and credit and debit back and forth. So those individual things might come up in hearings before the court, but not necessarily that’s not settling your case. So you still may have to settle your case.
So I think what you’re really talking about is a global trial on everything. And that doesn’t happen realistically as often and as parties may think where the courts are doing a global trial on your entire case. There’s different mechanisms, mainly cost that prevent that from happening. And if it’s not cost that’s preventing it because someone might be a multi multi-millionaire and be so angry. Still, even if you’re a multi multi-millionaire, does that mean you have to spend all the money on legal fees just to fight because you don’t like your spouse anymore? So most of these cases can be resolved.
John: And that’s like you said, that’s ultimately what you’re trying to do is you’re trying to get the people to come to an agreement so that when you go to the court you can just say, this is uncontested, that we’ve already gotten agreement here, and then it goes through quickly.
Heidi: Correct. I mean, that’s the goal always. I don’t think anyone wants to litigate if they don’t have to.
John: Right. All right. Well, that’s really great information, Heidi. Thanks again for speaking with me today.
Heidi: Thank you.
John: And for more information, you can visit Heidi’s website at ctnydivorcelawyer.com or call the Law Offices of Heidi E. Opinsky, LLC at [nap_phone id="LOCAL-CT-NUMBER-1"].
]]>John Maher: Hi, I’m John Maher, and I’m here today with Heidi Opinsky. Heidi is a divorce and child custody lawyer in Connecticut and New York and has over 30 years of legal experience in mediation, collaborative law and litigation, and she represents clients in a full spectrum of family law needs. Today, we’re talking about divorce litigation and alternatives. Welcome, Heidi.
Heidi Opinsky: Good afternoon, John. Nice to be here.
John: Great. So Heidi, when can a divorce lead to litigation?
Heidi: Generally speaking, it’s always preferable not to lead to litigation because it gets very costly. It gets contentious and could be very protracted. So it’s always preferable to go to a different model, and that could be a friendly litigation. That could be the model, friendly litigation.
If it does go to litigation, like I said, it could get costly. You could have discovery issues that get very costly. You can have motions in court that then have to be decided by a judge. You can end up… The true model of litigation is you’re in trials or hearings; so there’s evidentiary rules; there’s delays; there’s calendaring issues with the courts, especially now during COVID. So you could be delayed until the court could even hear your case.
So there are other models. There’s the mediation model, and there’s also the collaborative model. And the litigation model is the advocacy model where each party has their own advocate or lawyer. Again, as I emphasize, it could still be a friendly divorce where you still have your own advocates, your own lawyers on either side, and you’re not necessarily looking to the court to make a determination or a decision.
People end up in litigation, mostly when they’re angry, and anger leads to contentiousness. And some people have this belief that somehow someone with a black robe is going to make a better decision for them than themselves, which obviously is not the case and not preferable. It’s always better for you to make your own decision with your own details and your own objectives than to leave it to a third party, a judge, who’s wearing a black robe and has a very congested calendar and is going to give you scant attention at best. And you’ll end up with a cookie cutter decision, and that’s what people don’t understand.
When I tell them we’re going to have to try a case, even though I’ve been litigating for over 30 years, it’s always Russian roulette. You never know for sure or with any guarantee what a judge is going to do. I’ve been in cases in litigations where the evidence goes in beautifully. We think it’s a slam dunk. “You’re going to win this”. And you get a curve ball from a judge, and it’s coming out of left field. That’s why we have appellate courts and you end up on appeals. So the other two models, rather than litigation, are collaborative law or mediation.
John: Okay. Why don’t we start with collaborative law? And maybe tell me a little bit about what that is, and what’s involved in it, especially in terms of how it applies in a divorce case.
Heidi: Sure. So, the true collaborative law model is where you have different people in your case doing different things. So you have your own different lawyers. Each party, each side retains their own lawyers, and you sign a collaborative law retainer agreement. And collaborative law retainer agreements are very different because you’re agreeing that you’re not going to put this before a court, you’re not going to litigate. And the true collaborative law model says, if you don’t come to an agreement and you end up in court, you lose your lawyer. Your lawyer can no longer further represent you.
So of course, put your thinking cap on. We’re all lawyers; we can think to be creative. So many times, creative lawyers in the collaborative law model will write into the retainer agreements, “you don’t lose us as lawyers, even though we’re going to treat this case as a collaborative law case.”
So, the other difference is you have different people who are representing your respective interest. If there’s a psychological aspect regarding children in custody or therapy, you have a psychologist that’s involved, doing that portion of the collaborative law model or approach. If you have financial issues, you have an expert forensic accountant who’s retained to do that aspect of the case. If you have pensions, when you need an actuary to value a pension, you have them doing your case.
So, the difference is you have one person though — like a neutral, so to speak — a neutral forensic accountant, a neutral psychologist, a neutral actuary, a neutral real estate appraiser. The difference is in the advocacy model, and you have the adversarial model, you have your own team. You have your own real estate appraiser on both sides. You have your own forensic accountant on both sides. You have your own psychologist on both sides. You have your own actuary. So, the difference with the collaborative, you have a neutral collaborative team, but you have the two lawyers.
John: Okay. So there’s still two lawyers, one for each person in the divorce case, but all of the other people are a neutral central party, and you don’t have to have separate ones of those for everybody.
Heidi: Yes, correct.
John: So, what are some of the advantages or disadvantages of that type of collaborative law compared to both litigation – and we’ll get to mediation in a second — but what are the advantages or disadvantages compared to the other models?
Heidi: So, the advantages are, you are starting at the inception, believing that you’re going to have a friendly divorce and you are not going to litigate. So you’re not going to end up in court. So, the advantage is, looking at it, you’re still going to have a team of people other than your own advocates/lawyers. So, the thought process is you’re not going to litigate, so it’ll be less costly, less contentious, more friendly.
The problem is, as you would imagine, in the true collaborative model, it still starts getting very expensive when you’re hiring that team. Right? So there’s no guarantee that just because you’re hitting the collaborative model, as opposed to the adversarial model, that it’s going to be less expensive. In fact, because you’re already signing up that you’re going to have that team, it’s already getting quite expensive. So I’ve found that the collaborative model doesn’t really work always, and anyone can decide they don’t like what one side is saying or doing, or the team member, and pull the plug and then you’re back to square one.
John: And then it leads to litigation from there. Yeah.
Heidi: Yeah, and you’re starting over. So then people hear the buzzword “mediation”. Everyone thinks mediation’s going to be less expensive. Well, then again, a mediator is one lawyer who’s working for both parties, not representing both parties. And from the inception, they have to very clearly, expressly state, “I’m not representing either side.”
John: Right. I’m neutral.
Heidi: I’m neutral. Here’s also a problem. There’s no certification for a mediator in the law. So what happened, when mediation was in vogue and started and was a big brouhaha for everyone, “I’m going to go to a mediator. I’m going to save money. I’m not going to litigate”, what happened was you’d have therapist mediators; you’d have psychologist mediators or licensed therapist mediators. They know nothing about the law. They know nothing about discovery. So what would you imagine would happen?
What would happen is you’d get these horrendous agreements because they don’t know how to write an agreement. And a mediator is there to write an agreement as well as to negotiate the settlement and resolution. So you’d have these horrendous agreements that are not written by a lawyer. They have terminology or lack thereof. They don’t state what they’re supposed to state because a therapist is a therapist. They’re not educated and trained to be a lawyer and to write legal documents with appropriate terminology.
So, what would happen is one party controlled the mediation typically, and it was usually the monied spouse. There was no discovery. I’m just giving you the difficult aspects.
John: Sure.
Heidi: There was no discovery. The controlling spouse with the money controlled the mediation, and you ended up with a very one-sided agreement that was horrendous for one side and very positive for the other side, who really wasn’t in mediation to be fair and equitable.
John: Right.
Heidi: And then you’re starting from square one with hiring two adversarial lawyers. And so what you thought was going to be very cost-effective, and that’s what people still believe will happen, is not necessarily what would happen. Now, that’s not to say I’ve given you all the pitfalls and negatives.
John: Sure. Yeah. So what’s sort of the solution or the best-case scenario?
Heidi: So, the best-case scenario, in my opinion, if you are going to go to mediation, is to hire a lawyer mediator, number one, who is educated and knows the issues of discovery and knows the terminology in preparing an agreement. After mediation, the mediator typically says, “You should go to your own attorneys or hire or retain an attorney as a review council for this agreement because I’m not representing either one of you.” Okay? And that typically, in the good scenario, would happen. You should have a review council of your own to review it, not necessarily to put a kibosh on it and to tear it up and start over, but to review what was there and to understand how much discovery was undertaken by the mediator, what did you review, what was your knowledge when you entered into this agreement, what were you informed about, how comfortable were you with the objectives and the results, etc.
So, they’re your review counsel, and you’ll make changes to the agreement that the mediator wrote. And in good mediation, they should expect that. It shouldn’t just be that you’re going to sign on the bottom line just the way the mediator wrote it. There could be changes, but not necessarily that you’re starting from square one. So that’s a good mediation where you both have review council, then speaking to the mediator saying, “Well, my client’s uncomfortable about this. We would like to revise that. What do you think?” And everyone still works together and ultimately continues with the mediated agreement with some revisions.
John: Right. Okay.
Heidi: And collaborative law, like I said, it could work well, but I think the concept was that in the true concept when it started and it became part of the nuance in law… collaborative law came about after the mediation or mediators came about. It was newer. The concept was that it would still truly be a friendly divorce, but everyone was going to have the opportunity to get neutral people on a team and that the attorneys were going to work very collaboratively to bring the parties together for a settlement.
And unfortunately, because of retaining all the teams and the costs involved and all of that, I’ve found that collaborative law has really become where you market yourself as collaborative lawyer, because you’re working in a friendly manner and collaboratively, but it’s not the true collaborative law model. I’ve found that does not work as effectively as what everyone thought it would.
John: Right, because it’s just hard to get two people to really and truly work collaboratively with each other and not still end up with it being sort of this contentious back and forth like, “Well, my client wants this. Well, my client wants this,” and you’re kind of fighting with each other instead of really working collaboratively.
Heidi: And also, just to shore it up, with regard to the team, is there really one expert forensic accountant reviewing the monetary aspects and financing in a divorce, like if a business is involved? Okay? Let’s say ABC Corp or XYZ, LLC, or you own restaurants or you own professional practices or you own real estate, you own stock and you’re in finance, can that expert forensic truly be neutral?
John: Yeah. It’d be difficult.
Heidi: It’s hard to be truly be neutral, and the reason why is it’s not black and white. It’s a very individualistic approach when expert forensics value… There’s different models, different means of valuing anything. So can they truly be neutral? They can’t. There is no true neutral forensic accountant.
John: Have you worked as an attorney mediator for divorces before? And when you do that, how is it that you do try to remain neutral in that case and work with both parties equally?
Heidi: So what I do is I explain to both of them, when I meet them, that “I don’t represent either one of you”, that “I’m pleased to see that both of you are of the mind that you don’t want to be contentious and you don’t want to litigate, so that’s a positive”, because you can spend a lot of money in court in explaining to them and looking at their ledger sheet of assets in the marital estate.
If I see there’s a business is involved and one of these spouses is the primary person who owns and controls the business and runs the business… Let’s put it into a typical situation — there’s a housewife. She remained home, raised the kids and permitted the other spouse to go out and earn a living and obtain this business and run the business and control the business and make a good living from the business and earn assets from the business. I explain that if we’re going to truly do this mediated approach, you both have to be open with discovery, explain to each other what the values are in everything.
And it’s probably preferable to get an accountant, and we tell the accountant “you’re retained truly to be fair and equitable to both sides, not to tip one side or the other, but to be truly equitable, and everyone’s going to be open and get all the information to you as an expert forensic accountant, that you need to be fair and equitable. Explain to us what that fair and equitable number or approach would be.”
And I find that if you really instruct the expert, that’s truly what they’re going to do, that it’s about as fair as you’re going to get. If they’re not of the mind that that’s what they’re doing and they’re just told “you’re neutral”, I find many times that they get controlled by the monied spouse who owns the business, who controls the assets and the income and the appreciation and all of that. So you just have to be vividly and expressly clear from the get-go, “this is a true, fair, equitable resolution of what we want.” And if you do that, I think you’re going to get it as about as fair and equitable as you can.
John: All right. Well, that’s really great information, Heidi. Thanks again for speaking with me today.
Heidi: I appreciate it, and thank you.
John: And for more information, you can visit Heidi’s website at ctnydivorcelawyer.com or call the Law Offices of Heidi E. Opinsky, LLC at [nap_phone id="LOCAL-CT-NUMBER-1"].
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