Family Law Breaking News

I. The Trend Toward Shared Parenting Nationwide

    In 2012, Edward Kruk, Ph.D., Associate Professor of Social Work at the University of British Columbia, wrote an article in Psychology Today about co-parenting and high conflict. In a brief synopsis, he says there is a general consensus between legal and mental health professionals alike, that when divorcing parents are unable to come to an agreement on shared parenting arrangements for their children, and they remain caught up in a contentious relationship, their children suffer.

    Kruk pointed out that the belief was that when children remain in the middle of their parents' conflict, and the exposure is ongoing, the effect on their children can be extremely damaging. This is why there was often a legal presumption against shared parenting in high conflict cases in many jurisdictions. As a result, parents were implicitly encouraged to seek sole custody by using high-conflict as a reason for doing so. In some cases, it was his belief that parents were often overstating the extent of high conflict in order to ensure they received sole custody over shared parenting.

    For many years, research supported the view that shared parenting in high conflict relationships was harmful to children. However, previous research indicated that the damage was more likely to occur when the parents exchanged children at pick-up times. To put it another way, children were exposed to their parents' fighting at times of exchange. When the frequency of the exchanges is lessened and the children are exposed to less conflict, the thought was that the negative effects go away.

    According to Kruk, the research actually showed the opposite. In other words, not only is shared parenting not harmful in high conflict situations, but shared parenting can get rid of the harmful effects of high conflict. Relying on a 2002 study, Kruk points out the benefits to shared parenting that exist regardless of parental conflict. Problems with parental conflict are likely to arise when fathers lose contact with their children in high parental conflict situations. It was later concluded in 2007, from children's own perspective, that shared parenting is actually beneficial to children regardless if they are in a high or low conflict situation.

    Kruk goes on to say that sole custody is likely to create conflict because it promotes an adversarial "winner-take-all" sole custody system where hostility runs high when parents become fearful of losing their children. As Kruk points out, half of first-time violence occurs after separation. In addition, studies indicate that when fathers have limited contact with their children, they become more hostile toward their ex-wives. In sum, it was Kruk's view that sole custody arrangements lead to more conflict over time whereas shared parenting arrangements lead to less conflict over time.

    The momentum is presently behind Kruk's viewpoint nationwide. Many states have moved towards making shared parenting their norm. However, there are others out there who do not accept the viewpoint of Kruk that shared parenting is beneficial. For example, Dianne Post, J.D./M.A., attorney at Arizona Coalition against Domestic Violence, in her article entitled, "Arguments against Joint Custody," published in the Berkeley Journal of Gender, Law & Justice, argues that several studies indicate that, "the emotional health of children who have been the subject of joint custody arrangements [have] deteriorated." Additionally, Post sees shared parenting as nothing more than a design "to protect the divorcing father's rights rather than the best interests of the children." Post argues "Fathers are often economically motivated" and use joint custody as a way to reduce their child support payments, retain control, and get rights with no responsibility; fathers tend, in joint custody arrangements, "to leave the children with their mother during the father's physical custody time." These tendencies, according to Post, "cause psychological harm to the children and inconvenience to the mother" who is providing the same amount of care as if she had sole custody with less financial support.

    a. Missouri's 2016 Move in The Direction of Shared Parenting

    Based in large part on literature by Kruk and others professing similar views , Missouri moved, significantly, toward making shared parenting the norm in 2016 through House Bill No. 1550, which was signed into law by Former Governor Nixon. The hope of this bill was to make fifty-fifty custody, or shared parenting, more likely in the State of Missouri. This made significant changes to RSMo. § 452.375 as follows:

    • Creates guidelines for parenting plans that "maximize to the highest degree the amount of time the child may spend with each parent;"

    • Requires courts to disclose why shared parenting wasn't awarded if another arrangement is ordered;

    • Requires courts to provide written findings and conclusions in a custody case, which makes the case appealable if a party disagrees with the judgment.

    • Specifies that courts can't "presume that a parent, solely because of his or her sex, is more qualified than the other parent;"

    • Prohibits local courts from establishing their own rules, such as having a default-parenting plan.

    • Requires this language in custody judgments after August 28, 2016: "In the event of noncompliance with this order, the aggrieved party may file a verified motion for contempt. If custody, visitation, or third-party custody is denied or interfered with by a parent or third party without good cause, the aggrieved person may file a family access motion with the court stating the specific facts that constitute a violation of the custody provisions of the judgment of dissolution, legal separation, or judgment of paternity. The circuit clerk will provide the aggrieved party with an explanation of the procedures for filing a family access motion and a simple form for use in filing the family access motion. A family access motion does not require the assistance of legal counsel to prepare and file."

    Ultimately, this legislation was in many ways a dagger to the parenting plans that used to be found in courtrooms throughout the state based on the decision in Sigenthaler v. Siegethenaler, that largely resulted in an every other weekend schedule for many non-custodial parents, a night during the week, holiday time and additional time in the summer. 761 S.W.2d (Mo. App. 1988).

    In Morgan v. Morgan, the Eastern District showed how the pendulum has moved by stating: "Two overnight visits does not equate to a 'measurably large amount.' 497 S.W.3d 359 (Mo. App. E.D. 2016). Accordingly, the modification court correctly determined that a 'Siegenthaler Schedule,' or a comparable variation thereof, amounts to 'sole physical custody.' Id. at 370. We, herein, draw a bright line, and any other designation is erroneous." Id. This decision was impactful because many Siegenthaler parenting plans were previously referred to as a joint physical custody plans in many cases.

    Missouri's consideration and movement toward shared parenting is generally the norm nationwide. According to an article in 2017, more than 20 states have made the move to consider shared parenting legislation. In 2018, there were even more states considering this shared parenting legislation. In 2019, that trend is likely to continue with new legislation being debated in Missouri.

    In sum, there can be no doubt at this point that there is tremendous momentum toward moving the country toward shared parenting, despite the continued objections of some.

    b. Efforts to Move the Needle Even Further

    As referenced above, even after House Bill 1550 in 2016, there are efforts in Missouri to move the needle even further by making fifty-fifty custody a rebuttable presumption. In April of 2018, the Missouri House of Representatives passed HB 1667 by a vote of 137-7. The goal of the legislation was to make equal custody a presumption in Missouri. As one individual stated, "The legislation is a follow-up to an 'equal parenting bill,' HB 1550, that become law in 2016 that supporters say is not being properly enforced in some courts."

    Ultimately, this legislation never came up for a vote in the full Senate in 2018. However, the bill has not died. Known as Senate Bill 14, this legislation did pass the Seniors, Families and Children's Committee in the Missouri Senate on January 30, 2019. It will be fascinating to see whether this legislation passes the full Senate and makes it to the desk of the Governor. If this legislation were to become law, it could be an enormous development in Missouri family law.

    The exact language of the proposed legislation is as follows:

    There shall be a rebuttable presumption that an award of equal or approximately equal parenting time to each parent is in the best interests of the child. Such presumption is rebuttable only by a preponderance of the evidence in accordance with all relevant factors including, but not limited to, the factors contained in subdivisions (1) to (8) of this subsection. (Emphasis added).

    Nobody knows for sure whether this legislation will become law. However, if it does, it would mark a significant change in terms of how Missouri custody cases are decided in some courtrooms. With a rebuttable presumption in place, family courts would likely have a difficult time not ordering equal or approximately equal time in the majority of their cases. For judges who are not already doing this, this would result in a significant change.

    II. Shifting From "Custody" and "Visitation"

    In divorce matters, a court deciding on "custody" has been a standard practice for divorcing parents. Under traditional custody law, parents or the court would have to decide which parent would make decisions about their children (legal custody) and where the kids would live (physical or residential custody). Regarding legal custody, the parents or court would have to decide whether the parents would make decisions about their children together (joint custody) or if one parent would make the decisions alone (sole custody). If sole physical custody was chosen, versus joint physical custody, then the parents or court would then decide which parent would be deemed the sole custodian.

    In relation to "custody," parents or the court would also have to determine "visitation." Regardless of which of the parents was granted residential custodian, traditionally, both parents have a right to spend time with their children, and visitation determinations laid out when each parent could exercise this right.

    A majority of states, including Missouri, still follow traditional custody and visitation in divorce and family law matters. However, in recent years two states, Colorado and Illinois, have abolished the terms "custody" and "visitation." They have instead replaced these terms with "parental responsibilities" (replacing "legal custody") and "parenting time" (replacing "physical custody" or "visitation").

    This shift from the terms "custody" and "visitation" started in 1999 in Colorado under statute C.R.S. 14-10-103. However, this change was solely nomenclature; the statute specifically stated that no substantive change was made to the law. This is not the case for Illinois which took the change in nomenclature a step further by making changes to substantive law as well.

    As of January 1, 2016, through Public Act 99-90, Illinois not only replaced the terms "custody" and "visitation" with "parenting responsibilities" and "parenting time," but also changed its substantive law regarding these areas. Illinois law now requires the parents or the court to determine which parent has parental responsibility for deciding each significant issue involving the child(ren)'s religion, medical issues, education and extra-curricular activities. This is similar to traditional law in the sense that parents can share decision-making responsibility for their children or one parent can have sole decision-making responsibility for their children.

    What makes this new law different from traditional law is that parents who have decided to share decision-making can divide their responsibility to specific issues. For example, one parent has the sole right to make any and all educational decisions, while the other parent has the sole right to make any and all decisions regarding religion. It is essential to note that there are exceptions for emergency and every day decisions in that the parents have the right to make routine day-to-day decisions and emergency decisions regarding health and safety while the children are in their care.

    Additionally, Illinois law now presumes that the creation of a parenting plan setting out "parenting time" (visitation) is in the best interest of the child. Therefore, all dissolution proceedings in Illinois that involve children are required to be accompanied by a parenting plan.

    While so far, a majority of states still follow traditional custody and visitation law, it will be interesting to see if other states will follow Colorado and Illinois' lead and abolish the concept of custody and visitation from their statutes. There is no doubt that a justification behind these definitional changes is that by eliminating terms such as "sole" and "joint" custody from the equation, parties will be more apt to settle versus taking their case to trial. In other words, the view is that parents often litigate cases over whether or not they are getting "sole" or "joint" custody. However, by eliminating these terms, many theorize that cases will be litigated less because parties will be less focused on these terms.

    Critics often suggest that this is nothing more than semantics. Put simply, many would argue that the shift towards shared parenting is really the means by which custody cases will be litigated less.

    III. Maintenance Formulas

    According to an article in the ABA Journal: attorneys say, "[A]limony is one of the most frequently litigated issues in family law. Many agree that divorcing spouses deserve more predictable outcomes." Similarly, according to an article in the New York Times: "The unpredictability of alimony rules imposes several costs. Negotiating a settlement deal is much harder when spouses have no idea what they'll end up with if they take their chances in court. Litigation drags on and the bills pile up when lawyers and experts have to prove their clients deserve any alimony at all." Of course, in Missouri, alimony has been replaced by spousal maintenance, but nonetheless, spousal maintenance is equally litigated in Missouri.

    To make matters more complicated, changes were made to the IRS code that became effective January 1, 2019, and these changes have had a big affect on spousal maintenance. Under the new code the spousal maintenance payor will no longer be able to deduct the maintenance payments from their gross income for federal income tax purposes. Additionally, the maintenance payee will not be required to include maintenance payments in their gross income for federal income tax purposes. This change in the code is making maintenance more burdensome for the payor who will acquire more costs. States are responding to this change in different ways. Some states like Illinois are adapting new maintenance formulas to lessen the cost to the payor, while other states like Missouri have maintained their current maintenance statutes. Nonetheless, many worry that this change in the tax code will result in more divorce cases having to be resolved at trial versus through settlement. This is because payor spouses will arguably be less willing to pay spousal maintenance through settlement if they can no longer deduct it on their taxes.

    In Illinois, state officials have responded to the new IRS code by adopting a new spousal maintenance formula effective January 1, 2019. Under the new formula, "maintenance [is] calculated by taking 33 1/3% of the payor's NET annual income minus 25% of the payee's NET annual income...Previously, guideline maintenance was calculated by taking 30% of the payor's GROSS annual income minus 20% of the payee's GROSS annual income." The adoption of this new formula also ensures that the payee is not receiving more than 40% of the parties' combined net annual income, after adding the maintenance award to the payee's annual income. This can be burdensome to the payee who will likely be receiving less maintenance then they did in the past but will lessen the burden on the payor who, otherwise, would have acquired more of the cost.

    Prior to this amendment, Illinois had already amended their spousal maintenance laws to limit the length in which maintenance can be paid, except for marriages 20 or more years:

    §504(b)(1)(B).The duration of an award under this paragraph (1) shall be calculated by multiplying the length of the marriage at the time the action was commenced by whichever of the following factors applies: less than 5 years (.20); 5 years or more but less than 6 years (.24); 6 years or more but less than 7 years (.28); 7 years or more but less than 8 years (.32); 8 years or more but less than 9 years (.36); 9 years or more but less than 10 years (.40); 10 years or more but less than 11 years (.44); 11 years or more but less than 12 years (.48); 12 years or more but less than 13 years (.52); 13 years or more but less than 14 years (.56); 14 years or more but less than 15 years (.60); 15 years or more but less than 16 years (.64); 16 years or more but less than 17 years (.68); 17 years or more but less than 18 years (.72); 18 years or more but less than 19 years (.76); 19 years or more but less than 20 years (.80). For a marriage of 20 or more years, the court, in its discretion, shall order maintenance for a period equal to the length of the marriage or for an indefinite term. (Emphasis added).

    In Missouri, spousal maintenance law has remained unchanged and still lacks a specific formula or criteria in terms of how long maintenance is to last. Instead under §452.335, trial judges have broad discretion to determine maintenance amount and for how long. Missouri law broadly states that:

    1. In a proceeding for nonretroactive invalidity, dissolution of marriage or legal separation, or a proceeding for maintenance following dissolution of the marriage by a court which lacked personal jurisdiction over the absent spouse, the court may grant a maintenance order to either spouse, but only if it finds that the spouse seeking maintenance:

    (1) Lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs; and

    (2) Is unable to support himself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home.

    1. The maintenance order shall be in such amounts and for such periods of time as the court deems just, and after considering all relevant factors including:

    (1) The financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian;

    (2) The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment;

    (3) The comparative earning capacity of each spouse;

    (4) The standard of living established during the marriage;

    (5) The obligations and assets, including the marital property apportioned to him and the separate property of each party;

    (6) The duration of the marriage;

    (7) The age, and the physical and emotional condition of the spouse seeking maintenance;

    (8) The ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance;

    (9) The conduct of the parties during the marriage; and

    (10) Any other relevant factors.

    3. The maintenance order shall state if it is modifiable or nonmodifiable. The court may order maintenance which includes a termination date. Unless the maintenance order which includes a termination date is nonmodifiable, the court may order the maintenance decreased, increased, terminated, extended, or otherwise modified based upon a substantial and continuing change of circumstances which occurred prior to the termination date of the original order.

    Despite Missouri not adopting a new formula in response to the tax law changes, the fact that Missouri's spousal maintenance law is so broad may offer a protection to the changes in the IRS code. For example, a judge who is fully aware of the implications from the change in code can and may award smaller amounts to account for tax implications. However, the broadness of Missouri's spousal maintenance law can also be harmful to the payor if a judge is not fully aware of the tax implications of the new IRS code and continues to award high maintenance amounts.

    The new IRS code has just recently gone into effect. It will be interesting to see how states continue to respond to the new code over time. It may encourage Missouri and other states with similar broad spousal maintenance statutes to adopt narrower statutes or formulas.

    To show how litigious spousal maintenance cases can be, looking at some recent case examples can be helpful. In Lindo v. Higginbotham, 517 S.W.3d 558 (Mo. Ct. App. 2016), Appellant, husband, appealed the trial court's judgment reducing, but not terminating, his maintenance obligation, retroactive to February 2015, and awarding wife attorney's fees. Id. at 561. "As a consequence of [husband's] early retirement, [husband] argues [wife] is entitled to receive income from certain retirement assets which she received by virtue of the original dissolution judgment." Id. at 563. Husband argued wife's eligibility for additional income "constituted a substantial change of circumstances sufficient under Missouri law to terminate his maintenance obligation." Id. at 563. Originally, husband was required to pay maintenance of $1,500 per month. Id. at 561. The appellate court reduced this number to $750 to correspond with the increased income to wife from the retirement assets. Id. at 565. The court held that the income wife would now receive from social security and retirement was not a substantial enough difference to terminate wife's maintenance needs. Id. at 565. Calculating wife's reasonable monthly needs and subtracting her income and social security benefits, she was still in need of maintenance from husband and thus, the court reduced husband's maintenance but failed to eliminate it. Id. at 567.

    Missouri appellate courts also remain hesitant to overturn a trial court's findings with respect to whether an individual's cohabitation with another person qualifies as a substitute for marriage. In Hughes v. Hughes, husband sought a modification of his maintenance obligation as a result of wife's cohabitation with another man beginning in 2012. 505 S.W.3d 458, 461 (Mo. App. E.D. 2016). The appellate court upheld the trial court's denial of husband's request to terminate or modify husband's maintenance obligation noting that while wife and her romantic partner had been living together, shared in several expenses and hoped their committed relationship continued, there was no evidence they intended to marry. Id. at 469-472. Further, wife testified as to her continued and significant physical and mental health issues and the fact that she was still unable to work due to her continued health issues. Id. On the basis of those facts before the trial court, the appellate court found that there was sufficient evidence to support the trial court's conclusion that wife's cohabitation had not risen to the level of a substitute for marriage. Id. at 470. Further, despite the sharing of some expenses between wife and her romantic partner, the appellate court found there was sufficient evidence for the trial court to find that wife's reasonable needs had not been affected by her cohabitation such that a change of circumstances had arisen to justify a modification of husband's maintenance obligation. Id. at 471-472. The appellate court noted that at some point, wife's on-going relationship may adopt a character of permanence and commitment, despite lack of legal recognition, and be found to be the same as marriage. Id. at 470. However, the appellate court declined to provide any specific guidance as to the circumstances or time-frame in which such a transformation would occur.

    Prior to the change in the IRS code, in 2016, legislation was proposed in Missouri to reform spousal maintenance known as HB1818. In one key section, the legislation proposed:

    4. (1) All maintenance orders shall include a termination date, except maintenance orders under subdivisions (1) or (3) of subsection 5 of this section. The duration of all maintenance orders shall not exceed fifty percent of the length of the marriage, from the date of entry of the original order; except that, any maintenance obligation which is in arrearage at the scheduled termination date shall not terminate until the obligor has repaid such arrearage in full. No additional obligation shall accrue after the scheduled termination date.

    While this legislation ultimately did not become law, it will be interesting to see if efforts are renewed at some point in the future. Other states have maintenance formulas as well that create more certainty as to how maintenance is calculated and for how long. In Kansas, for example, a party cannot obtain maintenance for more than 121 months. After 121 months, a party may apply for another 121 months.

    In Barth v. Barth, the trial court's decision is interesting because the court was able to set a time for maintenance to stop absent the parties agreeing to it by contract because the court was able to point to a specific date where there was not a need for maintenance. 372 S.W.3d 496, 507 (Mo. Ct. App. 2012). Here, the court used its discretion in establishing a set limit regarding the time-frame maintenance would be awarded. Id. The trial court necessarily speculated that she would complete nursing school, secure employment, and become self-supporting. Id. at 505. The court cited § 452.335.2 which expressly authorizes a trial court to order maintenance "for such periods of time as the court deems just." Id. In so doing, one of the factors the trial court is directed to consider is "the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment." Id. at 505-506. This statute requires the trial court to "speculate" about future events, when addressing this factor. Id. "Although generally, '[m]maintenance should not be conditioned upon happenings in the future,' an exception exists when 'evidence shows the circumstances of the parties would likely change in the future.'" Id. at 506. During the trial, the wife testified she was currently enrolled in an accelerated BSN program, would be likely to reasonably obtain employment upon graduation, was enrolled in a program with tuition forgiveness, knew what her starting salary would be, and her motivation was a "reasonable safe assumption" that she would graduate and pass her boards which would lead to a higher income. Id. at 507. The court noted that the wife's argument that it was improper for the trial court to speculate that she would graduate from the nursing program was without merit given her own testimony. Id. The trial court made a present award of maintenance based upon substantial evidence of impending financial change. Id. However, this was a unique and rare decision in Missouri. In most cases, maintenance is ordered for an indefinite term until death, remarriage or a change of circumstance of a substantial and continuing basis.

    Compare that with Kansas, where maintenance can only be ordered for 121 months and this is why people litigate maintenance figuratively to the death in Missouri. Many worry they will pay it forever. Even cohabitation, which you can see in Hughes, rarely terminates maintenance in Missouri. The Missouri maintenance statute, in the eyes of many, encourages adversarial litigation and subsequent motions to modify to increase, decrease or terminate maintenance. In this vein, some would argue that it might create certainty for divorcing litigants if Missouri adopted a formula like other states have or a limitation on the length of time a person will have to pay like Illinois and Kansas. In other words, some would argue that many cases go to trial over the lack of certainty in Missouri over the amount and duration of maintenance.

    Others still argue that Missouri's law is better because it gives the trial court judge broad discretion to fashion relief based on the facts of a particular case. Additionally, many would argue that setting arbitrary lengths of time for maintenance awards hurts those who need and rely upon spousal maintenance.

    IV. The Emergence of Collaborative Family Law

    Mediation is very popular as a form of alternative dispute resolution. When the legal community thinks about ways in which family law litigants can resolve their cases outside of court, mediation is an idea that resonates with many. An emerging trend in family law as a form of alternative dispute resolution, however, is collaborative practice. Collaborative practice is a process established by the International Academy of Collaborative Professionals ("IACP"). Collaborative practice is really an emerging trend in family law that is still breaking news to some who do not know much about it.

    a. What is the International Academy of Collaborative Professionals?

    The International Academy of Collaborative Professionals ("IACP") is an international community of collaborative lawyers, mental health and finance professionals. They have set forth guidelines for the training of collaborative professionals, and also established a protocol for how collaborative cases should work.

    In addition to the IACP, there are local practice groups established under the umbrella of the IACP. These local practice groups are throughout the United States and in various localities. The purpose is to help spread the message about collaborative practice as it relates to the resolution of divorce and family law matters. IACP also creates uniform guidelines in which collaborative professionals are to abide by in the representation of clients. In Missouri, there are several practice groups, including the Missouri Collaborative Institute.

    For individuals who are interested in resolving their case in a collaborative manner, they might want to check whether the professional they are seeking out is a member of the IACP. Members of the IACP are generally trained in collaborative practice and have advanced knowledge about how these cases should operate. The term "collaborative" is not just a catch-phrase for resolving a divorce or family law matter amicably outside of court. The term actually means a very specific collaborative process that is outlined by the guidelines set forth by the IACP.

    b. Roadmap of a Collaborative Case

    While every case can work a little bit different, there is a general order in which collaborative cases progress and resolve. The process is one that is established by the International Academy of Collaborative Professionals ("IACP"). Below is the roadmap:

    1.) Each party must hire a lawyer trained in collaborative practice. Lawyers are trained in collaborative practice by completing forty hours of mediation training and completing a two-day interdisciplinary training in collaborative practice. The representation is a limited scope representation. This means that if the parties involved decide to litigate, they each have to hire new litigation counsel.

    2.) Both parties sign a participation agreement. A participation agreement ensures that the parties are going to engage in collaborative practice for their divorce or family law matter through the standards set forth by the IACP.

    3.) The parties have to decide who else will be enlisted on the collaborative team. For example, the parties have to decide whether to use one or two divorce coaches. They also need to decide whether to use a child custody professional for custody related issues or a finance professional for issues in the case that revolve around the finances.

    4.) Before the case is filed, settlement meetings need to take place to try to resolve the divorce or family law matter. The number of meetings, team members present and substance discussed at the meetings will vary on a case by case basis.

    5.) Once the case settles, settlement documents are drafted to put the agreement into writing. The parties and the attorneys will both need to sign the settlement agreement.

    6.) The settlement paperwork is presented to the family court judge either by affidavit or at a non-contested hearing. The judge will ultimately have to approve the settlement. Assuming the agreement is not so one-sided that it is unconscionable, family court judges will typically approve settlement agreements.

    c. Why Collaborative Family Law & Not Mediation?

    Many wonder why collaborative divorce and not mediation? In other words, what is wrong with mediation that individuals should think about collaborative divorce? Nothing is wrong with mediation. Mediation is a good option for some to consider.

    In mediation, parties sit down with a neutral mediator to try to come to a resolution about their divorce or family law matter. In some cases, the parties come alone (without their attorneys) to meet with a mediator. In other cases, the attorneys might be present with them. Further, some parties might engage in mediation willingly, which tends to lead to better results. However, others may be required to attend mediation by court order.

    No matter the circumstances, the reality is that a mediator cannot make parties settle their divorce or family law matter. All they can do is help to facilitate a discussion to try to get them to a place where they settle. But in many cases, the details hang-up settlement. As the saying goes: "The devil is in the details." Disagreement about any issue in the divorce or family law matter can hang-up settlement. It is true as well that many parties end up in a divorce or family law dispute in this first place because they have difficulties compromising. Thus, to the disappointment of the parties, divorce and family law mediations often end without a comprehensive settlement.

    This is where collaborative divorce is another option some should consider. In many ways, collaborative divorce is mediation with added benefits. In other words, both lawyers receive interdisciplinary training in collaborative practice and are trained mediators. However, the collaborative professionals can help parties work through the intricate details that are causing the parties not to settle. For example, if there is a financial disagreement, the financial neutral (typically either a licensed CPA or Certified Divorce Financial Analyst) can help. If there is custody disagreement, the custody professional (a mental health professional) can help. If parties do not communicate well regarding settlement, then the divorce coach (also a mental health professional) can help. This is where many parties should consider collaborative divorce, where both parties want to settle, but the details are the impediment to the end goal.

    It will be interesting to see as time goes on whether collaborative practice becomes more prevalent in Missouri in divorce and family law matters.

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