In Arizona, one has the option of getting a legal separation.  With a legal separation, married couples remain married, but the Court divides all assets and debts, and decides the issue of spousal maintenance.  Where children are involved, the Court also decides the issues of child custody, child access and child support.  The process to get a legal separation is basically the same as that of a divorce.

Why would someone want to get legally separated?  First, the parties may want to get back together.  The legal separation allows parties to live separately and have their finances determined in the interim.  Second, some religions frown on divorces.

There are also some financial reasons people stay married, even though they want to live separately.  The following are some possible advantages.  However, readers are cautioned to examine each one carefully with an appropriate professional to determine if the reasoning applies to them:

1.    If a marriage lasts ten years or more, a spouse may be entitled to more Social Security benefits.
After ten years of marriage, a divorced person at his/her full retirement age who has not remarried may be entitled to 50 percent of his or her ex-spouse’s entitlement,
if it is more than his/her own benefits.

2.    A legally separated spouse may be able to stay on his / her spouse’s health insurance.
Generally a divorced person cannot stay on his/her ex-spouse’s insurance.

3.    Married people may get a tax benefit from filing jointly.  One would have to check with his/her accountant to determine if he/she can file jointly if legally separated.

4.    One may be able to continue to use some military benefits.

If you are contemplating legal separation or divorce, it would be worth your while to learn about mediation.  Mediation is the cooperative, less expensive, less acrimonious and less time consuming way to handle either a legal separation or a divorce.

 Alona M. Gottfried is a family law mediator and attorney in Arizona.  If you have questions about mediation, she can be reached at: 480-998-1500 or alona@sglawaz.com.  This is a general interest article only and is not intended to be legal advice.  See a legal professional before making legal decisions. 

Simmons & Gottfried, PLLC
8160 E. Butherus Dr., Suite #7
Scottsdale, AZ 85260

I recently saw an article with a similar title as the one above and decided to put in my two cents on the topic.  As a long time Arizona attorney and mediator, I have gotten to see the range of experiences in both litigation and mediation.  Most mediations go swimmingly well – the parties reach a full agreement in a matter of a few hours.  The parties are able to end their marriage or former relationship respectfully.  Where there are children involved, and an ongoing relationship is necessary, the parties are able to build a new relationship in mediation – for the benefit of their children.

Some mediations are more difficult.  For example, one or both parties could have hurt feelings related to the demise of a relationship.  Emotions may get in the way of a reasonable resolution.  Or, the parties could have dramatically different ideas about how assets should be divided or whether spousal maintenance should be paid.  Those mediations could take a number of sessions and much determination to resolve.  I am here to say:  the effort is worth it.

One might think that the best thing to do when parties hit an impasse in negotiations is to litigate.  However, litigation is generally risky, stressful expensive and ugly.

Let’s focus on “risky.”  There are many of shades of gray in family law.  There is no attorney out there who will guarantee a client a particular result.  That means that, often, either party with conflicting arguments may prevail.  If a party found an attorney willing to argue a position, there is a good chance that party’s argument has some merit.  Therefore, going to court means that a party is spending substantial time and money and may not get what he/she wants. It is certainly very unusual to get everything one wants through litigation.

Even if someone beats the odds and prevails in Court on all issues, that may not be as positive an outcome as one may think.  The loser in this hypothetical situation is not going to be happy.  He or she may do whatever he or she can to make the other person’s life difficult.  And, both parties would have still likely spent many months and tens of thousands of dollars to get that result through litigation.  As an aside, most people do not want to “crush” their former loved-one or the parent to their children.  That benefits no one.

George Herbert, a poet and orator, said it best:  “A lean compromise is better than a fat lawsuit.”   Even when mediation is challenging, there is a reward to sticking to it.  The reward is much bigger and better than saving time and money.

Alona M. Gottfried is a family law mediator and attorney in Arizona.  If you have questions about mediation, she can be reached at: 480-998-1500 or alona@sglawaz.com.  This is a general interest article only and is not intended to be legal advice.  See a legal professional before making legal decisions.

Simmons & Gottfried, PLLC
8160 E. Butherus Dr., Scottsdale Arizona 85260

USA Today reports that the military divorce rate is at its highest level since 1999.  See Military divorce rate at highest level since 1999, by Gregg Zoroya.  According to the article, almost 30,000 marriages in which at least one spouse was a member of the military ended in divorce.  The numbers are expected to rise as more troops are being withdrawn.  Why is this happening?  The article quotes Chaplain Caarleton Birch, who attributes the high divorce numbers to the fact that more military personnel are coming home, and families are not used to being together.  Divorces are most common among enlisted women.  Air Force personnel have the most divorces out of all of the branches with almost five percent of marriages for enlisted personnel ending in divorce during this last year.

While the procedure for getting divorce for military personnel is the same in Arizona, there are a few unique challenges.  For example, there are specific rules about dividing military pensions and survivor benefits.  Also, there is law to prevent certain military personnel from having to participate in a divorce action while serving.

Nonetheless, there is no need for military members to go through a contentious litigation.  Military divorces, like all divorces, can be resolved through mediation.   In mediation, the parties utilize a neutral (the mediator) to help resolve all issues out of court.  Mediation is a good option for people looking to minimize conflict and cost.  People returning from active duty may have a particular interest in having a less stressful and less expensive divorce. Further, if one party is out of state or out of the country, that party can participate in mediation through video or phone conferencing.   With mediation, neither party has to go to Court. Mediation can also be used to reconcile a marriage that has been frayed by time in service.

Alona M. Gottfried is a family law mediator and attorney in Arizona.  If you have questions about mediation, she can be reached at: 480-998-1500 or alona@sglawaz.com.  This is a general interest article only and is not intended to be legal advice.  See a legal professional before making legal decisions.

Simmons & Gottfried, PLLC
8160 E. Butherus Dr., Suite #7
Scottsdale, AZ 85260

In an AZ divorce action and an Arizona legal separation action, the Court will separate the parties’ assets and debts, address a request for spousal maintenance as well as any request for award of attorney’s fees and costs.  If the parties have minor children, the Court will also address the issues of custody, parenting time and child support.

The big difference between an Arizona divorce and an AZ legal separation action is that the parties are still married at the end of the legal separation action.

The following are the two other major differences:

1. To file an AZ legal separation action, one party need only be living in AZ (or stationed in AZ, if in the armed services) at the time of filing the action.  To get a divorce in AZ, one party must have had to have live in Arizona for 90 days or more before being allowed to file for divorce.
2. While one party has to allege that his/her marriage is:  “irretrievably broken with no reasonable prospect to reconcile” to get a divorce, one need only allege that one party desires to reside separate and apart from the other party to get a legal separation.

For both an AZ legal separation and a dissolution action, the parties can agree to use a mediator instead of litigation to resolve the matter.  With a family law mediator, the parties retain one mediator (a neutral party trained in conflict resolution) to help the parties reach agreements and to take care of all of the necessary paperwork.  Mediation is generally much less expensive, time consuming, stressful and uncertain than litigation.

Alona M. Gottfried is a family law mediator and attorney in Arizona.  If you have questions about mediation or legal separation in general, she can be reached at: 480-998-1500 or alona@sglawaz.com.  This is a general interest article only and is not intended to be legal advice.  See a legal professional before making legal decisions.

Simmons & Gottfried, PLLC
8160 E. Butherus Dr., Suite #7
Scottsdale, AZ 85260

Phoenix Mayor, Phil Gordon, has recognized October 16, 2011 through October 22, 2011 as “Mediation Week.”  Mayor Gordon, proclaimed this honor in recognition of the Alternative Dispute Section of the State Bar of Arizona (the “ADR Section”) promotion of mediation and other alternative dispute resolution services to “citizens, families, businesses and government bodies…”  The Mayor also recognized the commitment of those that utilize mediation to “innovation in problem-solving and the application of creative dispute resolution options when faced with complex issues and disputes…”  In addition, the proclamation acknowledged the ADR Section for promoting education and the resolution of issues “in a civil manner…”   The Mayor points out that mediation is being used in the work place to assist in communication and problem solving as well as to resolve issues between “companies, individuals, groups, units and individuals.”

Why should you celebrate Mediation Week?  Mediation is an alternative to litigation and ongoing conflict.  It uses a neutral professional trained in conflict resolution to resolve disputes out of court and without all of time, risk, cost, stress and bad publicity that comes with litigation. It is confidential, binding and effective (ending conflict an estimated 88 percent of the time).  Ending conflict is good for the people or entities in conflict. Businesses and the government save money and become more efficient; individuals are able to move on with their lives in a productive manner.  In the case of family law matters, the parties (especially those with children) are able to get through a difficult period in their lives with minimal trauma and financial fallout. Mediation is good for Arizona businesses and its families.

How should you celebrate Mediation Week?

1. Commit to ending your litigation amicably.  If you are in litigation, ask the other party to join you in setting up a mediation.
2. Commit to ending other conflicts by looking for peaceful solutions for yourself or others in your community.  Life is too short to be in conflict. Talking, problem-solving and working together can lead to satisfying results.
3. Have a barbeque (why not?  It works for other celebrations).

Alona M. Gottfried is a mediator, attorney and a Board Member of the Alternative Dispute Resolution Section of the State Bar of Arizona.  If you have questions about mediation, she can be reached at: 480-998-1500 or alona@sglawaz.com.  This is a general interest article only and is not intended to be legal advice.  See a legal professional before making legal decisions. 

Simmons & Gottfried, PLLC
8160 E. Butherus Dr., Suite #7
Scottsdale, AZ 85260

William Doherty, a psychologist and professor at the University of Minnesota, has completed research on how married couples decide whether to divorce or not.  Results of a survey of 2,484 Minnesota parents who filed for divorce demonstrate that a shocking 25 percent of parents still thought there was hope to save the marriage.  In a subset of 329 couples, twelve percent of both couples independently expressed an interest in reconciling.

Could that mean that a significant number of divorces could have been averted if the parties talked and were open about their hopes for reconciliation?  Perhaps one or both parties’ egos get in the way of reconciliation – one party thinks the other party wants the divorce and does not want to be rejected if he/she broaches the topic of reconciliation.

Couples considering divorce may first want to explore reconciliation mediation.  Reconciliation mediation is a way to discuss the issues confronting a couple in a neutral environment with a trained conflict resolution professional.  The mediator, who is not a counselor and who uses a different skill set than a counselor, works with couples to discuss and resolve their issues.

In a study of 866 divorcing Minnesota residents, it was determined the most common contributing factors to a divorce were:  growing apart (55 percent); unable to talk together (52.7 percent); money issues (40.3 percent); spouse’s personal problems (36.8 percent); (not getting enough attention (34.1 percent); and infidelity (34 percent).  Dr. Doherty found that even infidelity was not a barrier to saving a marriage where the parties were interested in reconciliation.  All issues can be discussed in mediation.

Sometimes the couple leaves mediation with binding agreements on how they will, for example, address pressing money issues.  Sometimes the couple leaves with a better understanding of their respective concerns and the most productive way to address them.  If the couple ultimately decides to divorce, they can use the mediator to complete their divorce in an amicable manner.

A marriage seems hopeless, or it may appear that the grass just appears to be greener on the other side.  However, as noted by psychologist Dr. Susan Heitler:  “[I]t’s radically cheaper emotionally, as well as financially, to fix the marriage than to declare it dead.”

Reference:  “Some couples pull back from the edge of divorce.” By Sharon Jayson, USA TODAY

Alona M. Gottfried is a family law and reconciliation mediator and attorney in Arizona.  If you have questions about mediation, she can be reached at: 480-998-1500 or alona@sglawaz.com.  This is a general interest article only and is not intended to be legal advice.  See a legal professional before making legal decisions. 

Simmons & Gottfried, PLLC
8160 E. Butherus Dr., Suite #7
Scottsdale, AZ 85260

This article is the second part of an article exploring the collaborative divorce process in Arizona using the full team approach.  Arizona Collaborative Divorce Process – Part 1

3. Child Specialist. The parties jointly retain a mental health professional to act as a child specialist. The child specialist acts as a neutral representative of the children’s needs. This professional has training to work with children and family going through divorces. If the children are old enough, the specialist meets with the children to understand their needs and desires. The specialist conveys what is best for the children to the parents and helps the parents define a parenting plan that is in the children’s best interests. Unlike the litigated case, what is best of the children is a central focus. The parents gain the ability to understand how their decisions impact the children and make choices accordingly. The children, in turn, feel heard and understood and feel safe and supported. The children have an opportunity to ask questions and have a voice.

The parents also benefit. Instead of allowing their children to become victims of an acrimonious divorce, the parents get to work with a professional to make life-changing decisions. As every child is different, this professional allows the parties to consider unique needs and concerns. The child specialist also helps the parents discuss future conflicts and how to best address them.

4. Case Manager. One of the professionals also acts as a case manager, who schedules meetings, prepares agendas and minutes and otherwise keeps the process moving forward. Generally the case manager is one of the coaches.

The team works together toward a common purpose, which is the best outcome for everyone. The team works to develop common interests and goals. By having a team, both parties are on equal ground and have the support to make decisions in everyone’s best interests. Also, the team is equipped to gather the information necessary for the parties to make their best decisions.

In a litigated divorce, an attorney generally handles all roles to some extent – providing emotional support to clients, and reviewing financial records, for example. With the full team approach, arguably each role is handled by the most skilled professional.

While some professionals will not practice collaborative law outside of a team approach, others are comfortable with either just using collaborative attorneys or only certain other professionals. Sometimes that is an economic decision.

Alona M. Gottfried is a family law mediator, collaborative divorce attorney and litigation attorney in Arizona. If you have questions about mediation, she can be reached at: 480-998-1500 or alona@sglawaz.com. This is a general interest article only and is not intended to be legal advice. See a legal professional before making legal decisions.

Simmons & Gottfried, PLLC
8160 E. Butherus Dr., Suite #7
Scottsdale, AZ 85260

A. Generally. Collaborative divorce is a method of resolving a family law issue through cooperative means with an agreement to not litigate the case and to disclose information voluntarily. If the parties later choose to litigate, they cannot not use the same professionals they used in the collaborative process. While the term “collaborative divorce” is used, the process can be used for a number of family issues, including post-decree matters, paternity matters and guardianships.

B. What Is An Interdisciplinary Team?

Collaborative Divorce can be completed with just collaboratively trained attorneys (whose role is described in the following article) or with select professionals. In an interdisciplinary team approach, the team generally includes the following team members (in addition to the attorneys), who are all trained in collaborative divorce:

1. Collaborative Divorce Coach. Each party has his/her own divorce coach. The coach is a licensed mental health professional, but he/she does not provide therapy or otherwise treat his/her client. The coach helps the participants manage conflict, the emotions surrounding the process and communication. The coach also helps his/her client determine his/her goals and emotional barriers to settlement, understand the both parties’ concerns, develop strategies for optimal communication, lower anxiety, increase receptiveness to settlement, identify priorities, expand options and work through roadblocks to settlement. The coach also helps in developing co-parenting skills and creating a parenting plan. Whereas the task of emotionally supporting clients tends to fall on attorneys in a litigated case, in the collaborative process, the clients have someone better equipped to handle that.

2. Financial Specialist. The parties share this neutral professional. The financial specialist helps the parties collect and understand their financial options in a divorce. This professional identifies the parties’ goals and concerns and then organizes the financial data and creates and analyzes options for property division and debt division. The professional also helps with the analysis of income and factors related to spousal maintenance. The professional also helps the parties identify and evaluate tax consequences and develop budgets and long range financial goals. The financial specialist must be a certified financial planner, certified divorce financial analyst, certified divorce planner, and/or certified public accountant. Because this professional will discuss a lot of the more perplexing and difficult issues with the parties (money), and because people often have unrealistic financial expectations, facilitation skills are useful.

Part 2 of this article

Alona M. Gottfried is a family law mediator, collaborative divorce attorney and litigation attorney in Arizona. If you have questions about mediation, she can be reached at: 480-998-1500 or alona@sglawaz.com. This is a general interest article only and is not intended to be legal advice. See a legal professional before making legal decisions.

Simmons & Gottfried, PLLC
8160 E. Butherus Dr., Suite #7
Scottsdale, AZ 85260

A. General Overview of Collaborative Law in Arizona

Those facing civil litigation may use a process called Collaborative Law to resolve their dispute out of court. Collaborative Law means that both parties retain collaboratively trained attorneys to help resolve the matter using interest-based negotiations. The parties also enter into participation agreements requiring their collaborative attorneys and other professionals retained to withdraw if there is no settlement. The agreement also requires voluntary disclosure of relevant information.

B. How Other Professionals Are Used.

Parties can use a team approach in the collaborative process. The parties can jointly retain other professionals to assist in resolution. The teams may include a neutral – such as a mediator or a mental health provider – who helps facilitate settlement discussions. A mental health professional may also be used to help parties communicate well or to deal with anger or grief, depending on the nature of the case. The parties may also use financial professionals for business appraisals, forensic accounting, estimates of economic damages, and tax advice on settlement proceeds, structured annuities and special needs trusts. Other experts may be used as the specifics of a case dictate. For example, a construction case may utilize an engineer.

C. What Type Of Civil Cases Can Benefit From Collaborative Law?

The following types of cases have already successfully used collaborative law: partnership dissolutions, several disputes in probate courts regarding guardianships, trusts and the administration of estates, and employment law.

Other areas could include: special education, real estate disputes (construction, permits, landlord tenant, financing), personal injury, regulated industries, insurance disputes, and any other number of areas.

In the medical error cases, the parties can use the process to engage in less expensive discovery and obtain creative solutions that may include apologies and agreements to change procedures.

D. How Is A Collaborative Case Different Than A Cooperative Case?

Some cases can be settled using collaborative skills but without the participation agreement or provisions for withdrawal. They cannot be considered collaborative cases, but they are still generally preferable to litigation.

E. Can An Attorney Take A Collaborative Case On A Contingency Basis?

Contingency fees are still allowed, and the lawyer is just like any other attorney with a limited scope engagement. If settlement is unsuccessful, the collaborative attorney is in the same position as a litigation attorney who loses at trial or hands off the case to another attorney. Like any other attorney, the collaborative attorney must still keep track of his/her time.

Alona M. Gottfried is a family law mediator, collaborative divorce attorney and litigation attorney in Arizona. If you have questions about mediation, she can be reached at: 480-998-1500 or alona@sglawaz.com. This is a general interest article only and is not intended to be legal advice. See a legal professional before making legal decisions.

Simmons & Gottfried, PLLC
8160 E. Butherus Dr., Suite #7
Scottsdale, AZ 85260

This article is the second part of an article exploring the Arizona attorney’s role in the collaborative process and various ethical problems that arise.  The first part of this article Collaborative Divorce Process AZ.

3.    Ethical Question:  Doesn’t an attorney have to zealously represent his/her client?
The Arizona Supreme Court removed the obligation to zealously represent client in 2003.  Attorneys now just have a duty to act honorably.  Pursuant to Ethical Rule 1.3:   “A lawyer shall act with reasonable diligence and promptness in representing a client.”  The Comment to this rule defines this principal:
Comment:  [1] A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client’s cause or endeavor.  A lawyer must also act with commitment and dedication to the interests of the client.  A lawyer is not bound, however, to press for every advantage that might be realized for a client.  For example, a lawyer may have authority to exercise professional discretion in determining the means by which a matter should be pursued.  See ER 1.2.  The lawyer’s duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect. (Emphasis added).

4.    Ethical Question: Does The Withdrawal Provision Coerce Clients Into Settling?

The withdrawal provision is seen as a way to keep all parties focused on settlement. It also allows the attorneys to keep their “settlement hat” on, rather than moving back and forth between preparing for litigation and trying to settle.

Some argue that the withdrawal provision is coercive; some people can’t afford to leave the process. One may point out that this situation is no different than a client who has exhausted his/her retainer. Sometimes litigants have to choose between paying another big retainer for trial or settling.

5.    Ethical Question:  Does Relying on Voluntary Disclosure Require Too Much Risk?

It is true that a party can be dishonest through voluntary disclosure, but there is arguably just has much risk of dishonesty in litigation.  A litigant can lie under oath or fail to produce relevant information. One may argue that deception is easier to detect in a collaborative case where there are: more face to face interactions where questions can be asked, financial experts who can determine if information is missing, and the use of coaches. The participation agreement also provides remedies – ending the process – if someone does not act in good faith.  Parties can still insist on sworn documents in collaborative cases.
Alona M. Gottfried is a family law mediator, collaborative divorce attorney and litigation attorney in Arizona.  If you have questions about mediation, she can be reached at: 480-998-1500 or alona@sglawaz.com.  This is a general interest article only and is not intended to be legal advice.  See a legal professional before making legal decisions.