Lower the emotional heat and work it out with mediation.Until you’ve been divorced, you just don’t know what it’s like.Divorce is easily the most-thought-of segment of legal endeavors known as “family law.” It’s one of the greatest legal misnomers because most of the time “family law” turns out to involve disentangling the legal, financial and (if done right) emotional relationships that define a “family” under the law.There are other areas of family law, although they also focus on what happens when families are parted by death or legal action. “Oftentimes families are fighting over what’s in an estate or who the administrator will be, or mediation in termination of parental rights,” says John Maher, who served as administrative judge of the New Hampshire probate court for 16 years. “For example, if DCYF [the state’s Division for Children, Youth and Families] has brought an action to terminate parental rights, it’s usually all or nothing, but sometimes they are able to negotiate some kind of ongoing contact between a mother and a child.”Compared to issues like that, run-of-the-mill divorce can seem almost painless — but it’s not. For most of the non-divorced, what we know about the process comes mostly from TV, movies or the horror stories of people who have reached the bitter end of a marriage. Everyone knows someone who duked it out with a spouse in court over every detail of ending their marriage, or else we have followed the breathless tabloid accounts of celebrities’ marriages on the rocks — or at least we have rented “Kramer vs. Kramer” on DVD.But not many sources are telling the story of collaborative law and mediated divorce. It doesn’t make good drama because the whole point is to drain as much of the conflict as possible from a traumatic, emotionally intense process. But it’s a practice that’s growing in prominence in New Hampshire, and advocates say it could well become the principal means through which marriages end and lives are disentangled.“I don’t go to court anymore,” says Wilton attorney Honey Hastings. “I used to do a lot of litigation, then I concluded mediation could work for most people if we could keep them from getting into an adversarial stance.”Hastings was the first New Hampshire attorney trained in the practice of collaborative law, in which parties try to find an agreement through negotiations between the principals and their attorneys rather than going to court. The International Academy of Collaborative Professionals calls it “divorce with dignity,” and notes that the process can include child and financial specialists, divorce coaches and other practitioners who work as a team to find the best outcome for everyone involved.“The key thing is that there’s a written agreement up front that states the parties will not litigate, threaten to or file adversarial papers,” Hastings says. Even the attorneys must pledge to step aside rather than go to court.“That’s an incentive both to the lawyers and the parties, and it makes the goal to settle the case in a way that works for all family members, instead of getting the best result for my client no matter how I do it,” she adds.Collaborative law is a step beyond the mediation that New Hampshire’s family courts require as part of most divorce processes. Maher, the former administrative judge, now focuses exclusively on mediation at his offices in Portsmouth. Many of his cases come through referrals from marriage counselors or other therapists who are hoping to guide their clients into a less-stressful, more economical process. Where a litigated divorce can cost each spouse thousands of dollars in lawyers’ fees, mediation can cost much less and lead to a better outcome.“Most lawyers spend time exploring reconciliation,” Maher says. “Some people prematurely jump into divorce. I have had a number of mediations where, after we have explored the complications and the economic aspects, I have seen some people rethink the whole matter and go back into marriage counseling to see if they can resolve the matter.”That doesn’t often work — Maher puts the percentages at from 10 to 15 percent — but for the few who drop out of the race to divorce, it could be the best possible outcome. For the others, the goal is to take care of the biggest issues first, then work through the other subjects.“Historically, in civil litigation you try to wrap it up in one day and if you can’t you continue down the path to a court date. But it’s very difficult to resolve custody and visitation and property division in one sitting because the pie is just too big,” Maher says. “But if you take two or three hours at a time and the parties get some homework and prepare things like financial affidavits and lists of property, they can come back to the table and resolve many matters.”
To no one’s surprise, issues surrounding children are the hardest to settle, followed closely by issues of money. Attorney Hastings says simply using the word “custody” can lead to unnecessary battles.
“Often, people who agreed about when dad or mom would parent the child would fight over the word, and it led to more contested cases,” she says. “Both sides wanted that official badge of honor as to who is the greater or lesser parent.”
New Hampshire law carries a presumption of joint custody for legal purposes, and also sets child support guidelines by statute. Attorney L. Jonathan Ross of Wiggin and Nourie in Manchester says those range from 25 percent of the paying spouse’s aggregate taxable income for one child to 45 percent for four or more children.
“It’s not a needs-based model, and a court can modify the presumptive right amount, but it can be a very significant amount of money, and the financial and custodial arrangements may or may not be easy to change later on,” he says. In fact, he adds, the courts require a showing of potential harm to a child before they will reopen most cases, not just a showing that a change would be in the best interests of the children.
Because of the significant ramifications, he never advises potential clients to go through the process without legal assistance, even if that means just having a lawyer look over a mediated settlement before it is finalized.
“I don’t think it’s easy and I don’t care whether you’re in seven-figure properties or a pro bono case, you have some of the same issues of kids, life and cash flow,” he says. “No matter how angry they may be with each other, it’s the death of something that was important to them, and that’s hard.” NH
This article appears in the May 2010 issue of New Hampshire Magazine