From Collaborative in Jersey...
I was gratified and honored to be presented with the Legal Professional of the Year Award by the Hunterdon County Bar Association on September 22, 2010. Here is the substance of my remarks upon accepting the award:
LEGAL PROFESSIONAL AWARD REMARKS
Hunterdon County Bar Association
September 22, 2010
After 23 years of practicing law, there is one observation I would like to press home, especially to you young attorneys. That is to practice without fear.
We have taken a solemn oath to defend not one, but two constitutions. So, much is expected of us by American society. For this reason, you should not be concerned whether taking on a particular client will upset certain people or perhaps negatively affect your legal career.
With that in mind, let me note a few legal professionals I look up to. One is John Adams, who, although a recognized up-and-coming leader in the Sons of Liberty movement and rising star in the Boston Bar, chose to represent the British soldiers (March, 1770) indicted for murder in the infamous Boston Massacre.
Adams practiced without fear.
In 1846, another attorney was involved in a highly charged murder trial in the small city of Auburn, New York. The accused, a 23 year old young man by the name of William Freeman entered the home of a wealthy farmer, John Van Nest, knifing to death Van Nest, his pregnant wife, another small child and the wife’s mother. He was apprehended within hours. He immediately confessed his guilt, was observed laughing uncontrollably and showing no remorse for the horrific crimes. He had just been released from prison.
In the hours prior to the arraignment, the members of the Auburn bar were threatened with violence if they undertook Freeman’s defense. During the arraignment, before a packed and emotional gallery, when the judge stated “’Will anyone defend this man?,’ one lawyer stepped forward and said “May it please the Court, I shall remain counsel for the prisoner until his death.”
This attorney had the most to lose of any in the Auburn bar. He was William Henry Seward, and he had just completed two terms as governor of NY, but still had national political ambitions. Almost everyone was angry with him for taking this case: his father-in-law, who was another judge in that county; and his political mentor, who believed he was throwing away his political career. The only person whom stood by him, and thought he was in the right, was his wife, Frances, who assured her sister that “he will do what is right. He will not close his eyes and know that a great wrong is perpetrated.”
Seward spent weeks investigating the murders (btw, Van Ness was a friend of Seward’s). During the investigation he discovered that Freeman had been wrongly convicted five years earlier, and was repeatedly beaten in prison leaving him deaf and deranged. This evidence was presented to the jury and supported by the testimony of five physicians, but the jury rejected the insanity defense and found Freeman guilty of the murders.
Seward’s stirring words in defense of Freeman were carried by newspapers throughout the country. He was later elected twice to the US Senate, ran for president and was a successful Secretary of State for two presidents. He played a key role in the abolition of slavery itself.
Seward practiced without fear.
To put Seward and Adam’s decisions in context today, imagine how our community would react to a member of this bar agreeing to represent a group of embattled Americans in their quest to build a house of worship in Lower Manhattan? Yet, this is the self-sacrifice that our society sometimes expects of attorneys.
Keep in mind that we are still held in esteem by an enlightened society. Despite some polls and put-downs by pundits, one of the most popular 20th C. literary characters remains an attorney: Atticus Finch. Author Harper Lee’s main character from “To Kill a Mocking Bird” is still the model of integrity for lawyers.
Fair or not, many clients expect us to be Atticus Finch: that we will aggressively argue their causes and pursue due process without fear of retribution to our livelihoods or person.
The rigorous exercise of our oath is a high calling and at times a burden and stressful. But, I can tell you from my experience that practicing without fear will give you greater satisfaction as a professional and I recommend it to all here. Not only does our community expect it of us, but the health of our Republic depends upon it as well.
Thank you.
Friday, September 24, 2010
Thursday, September 16, 2010
Follow-up on Hunterdon County Backlog and Misc. News
During a meeting of the Bar Association's Family Law Committee yesterday, our new presiding Family Division judge, Hon. Hany Mawla, reported that there are now 93 cases in backlog (equating to a 2 plus year trial delay). He intends to cut this number in half by the end of the year through vigorous, hands-on, involvement in cases, keeping the court house open late two days a week for settlement conferences, and calling two cases at a time for trial. In addition, he will have the availability of a back-up judge to assist. If this aggressive process is successful, Hunterdon County's current standing among all 21 counties (now dead last in family case backlog) should be greatly improved by spring 2011.
The county Bar Association has institued a new committee: ADR, which will handle private arbitrations, mediation and collaborative law issues. There is a recognition by both Bench and Bar that more cases need to be resolved through ADR to avoid calendar back-ups such as the one recently experienced.
The New Jersey Collaborative Law Group is revving up after a short summer break. The near-term goal is to identify best practices for collaboration with the goal of smoothing out practice wrinkles. There has been a recognition that members of the group are following different procedures and, perhaps, employing different styles, which may have unnecessarily complicated collaborative cases. Overall, the feed back from collaborative clients is positive, but more needs to be done to improve quality and continuity of professional services.
I want to congradulate my partner, Robert Shanahan, on his installation next week as Hunterdon County Bar President. Bob has already made a positive and significant impact on the association through his attention to the committee chair assignments.
Finally, I am very gratified to have been named the Legal Professional of the Year by the Hunterdon County Bar Association. It is a good year for the firm in many ways.
Thanks for reading.
© Kevin M. Kilcommons, 2010
The county Bar Association has institued a new committee: ADR, which will handle private arbitrations, mediation and collaborative law issues. There is a recognition by both Bench and Bar that more cases need to be resolved through ADR to avoid calendar back-ups such as the one recently experienced.
The New Jersey Collaborative Law Group is revving up after a short summer break. The near-term goal is to identify best practices for collaboration with the goal of smoothing out practice wrinkles. There has been a recognition that members of the group are following different procedures and, perhaps, employing different styles, which may have unnecessarily complicated collaborative cases. Overall, the feed back from collaborative clients is positive, but more needs to be done to improve quality and continuity of professional services.
I want to congradulate my partner, Robert Shanahan, on his installation next week as Hunterdon County Bar President. Bob has already made a positive and significant impact on the association through his attention to the committee chair assignments.
Finally, I am very gratified to have been named the Legal Professional of the Year by the Hunterdon County Bar Association. It is a good year for the firm in many ways.
Thanks for reading.
© Kevin M. Kilcommons, 2010
Friday, September 11, 2009
Court Still Jammed, But Collaborative Teams Forming to Meet Needs
In May, I wrote that the Family Court in Hunterdon County had announced that it was not able to try cases until sometime in 2010 (See "Are We the Canary..."). Thereafter, the presiding family judge for this judicial viscinage, Judge Julie Marino, announced to the Bar that she was assigning judges from Somerset County to assist with is County's case backlog. In addition, the judge ordered motion return dates to every other week, rather than every week as had been the custom for some time (thus permitting judges to hold hearings at least two additional days a month). However, the Family Court still stuggles to meet the demand of its varied and complicated calendar, which involves juvenile, domestic violence and adoptions, along with the divorce and post-judgment divorce applications. Complicating the situation, was the absence of one judge this summer due to illness. The litigators are now experiencing long delays in the resolution of motions, in addition to obtaining trial dates for unresolved cases.
Another change ordered by Judge Marino involved the relocation of the Early Settlement Panel conferences, in which volunteer attorneys meet with divorcing couples and their attorneys and attempt to work-out settlements. Now, Hunterdon County litigants will have to travel to the Somerset County Courthouse in Somerville for these conferences, thus adding additional costs to their legal expenses, due to attorney travel time, and expenses incurred in fuel and parking.
On a bright note, several experienced Hunterdon County attorneys, as well as local mental health professionals, were certified as collaborative practitioners by the International Academy of Collaborative Professionals ("IACP") http://www.collaborativepractice.com this past June in Clinton. Many of these professionals joined the Hunterdon County sub-group of the New Jersey Collaborative Group http://www.newjerseycollaborativelawgroup.com/, which I hosted here at my firm in July and August. This is an energtic and dedicated group of professionals and very eager to find a better way to assist families in crisis other than through traditional litigation. Shortly after our August meeting, the Hunterdon County Bar Association's Family Law Committee formed a sub-committee devoted to collaborative family law. Many thanks to Roz Metzger, Family Law Committe Chair, for her efforts in establishing this sub-committee.
With the admission of these professionals into the IACP and soon the New Jersey Collaborative Law Group, Hunterdon County now has in place a nacent working team of collaborative professionals. By choosing collaboration over litigation, clients will likely have their divorces resolved quicker, with less cost and stress to the family than the traditional litigation route, and it can be accomplished privately. Bear in mind, that successful litigation (defined as carrying a matter from the filing of a complaint to settlement or judgment following a trial) is entirely dependent upon a court system, which is now unable to serve the needs of all Hunterdon County residents. Perhaps this is the reason so many family practice professionals have obtained collaborative training in the past year.
BE ADVISED that these comments are not legal opinions and are not to be relied upon as legal advice. If you need legal advice, contact your county bar association; most of which have referral services. If you desire a collaboratively trained and certified attorney, go to http://www.collaborativepractice.com/
See kscounsel.com for my web site.
© Kevin M. Kilcommons, 2009
Another change ordered by Judge Marino involved the relocation of the Early Settlement Panel conferences, in which volunteer attorneys meet with divorcing couples and their attorneys and attempt to work-out settlements. Now, Hunterdon County litigants will have to travel to the Somerset County Courthouse in Somerville for these conferences, thus adding additional costs to their legal expenses, due to attorney travel time, and expenses incurred in fuel and parking.
On a bright note, several experienced Hunterdon County attorneys, as well as local mental health professionals, were certified as collaborative practitioners by the International Academy of Collaborative Professionals ("IACP") http://www.collaborativepractice.com this past June in Clinton. Many of these professionals joined the Hunterdon County sub-group of the New Jersey Collaborative Group http://www.newjerseycollaborativelawgroup.com/, which I hosted here at my firm in July and August. This is an energtic and dedicated group of professionals and very eager to find a better way to assist families in crisis other than through traditional litigation. Shortly after our August meeting, the Hunterdon County Bar Association's Family Law Committee formed a sub-committee devoted to collaborative family law. Many thanks to Roz Metzger, Family Law Committe Chair, for her efforts in establishing this sub-committee.
With the admission of these professionals into the IACP and soon the New Jersey Collaborative Law Group, Hunterdon County now has in place a nacent working team of collaborative professionals. By choosing collaboration over litigation, clients will likely have their divorces resolved quicker, with less cost and stress to the family than the traditional litigation route, and it can be accomplished privately. Bear in mind, that successful litigation (defined as carrying a matter from the filing of a complaint to settlement or judgment following a trial) is entirely dependent upon a court system, which is now unable to serve the needs of all Hunterdon County residents. Perhaps this is the reason so many family practice professionals have obtained collaborative training in the past year.
BE ADVISED that these comments are not legal opinions and are not to be relied upon as legal advice. If you need legal advice, contact your county bar association; most of which have referral services. If you desire a collaboratively trained and certified attorney, go to http://www.collaborativepractice.com/
See kscounsel.com for my web site.
© Kevin M. Kilcommons, 2009
Wednesday, June 24, 2009
News Brief
As a follow-up to my May post, the Family Division has announced that two judges will be assigned the principal duty of conducting trials all summer and until the growing backlog is reduced. This announcement by Judge Julie M. Marino, presiding Family Part judge, was welcome news to the family bar.
On June 13 and 14 Linda Piff led another successful Basic Collaborative Skills seminar to nearly 30 professionals at the Clinton Holiday Inn. The newly certified attorneys (and I assume the several mental health professionals present) were very excited to become involved in a collaborative group, or form their own, and will be meeting here in my office soon to discuss their options. The New Jersey Collaborative Group members were also excited by the large turnout for Linda. Group president, Ken Rempell, noted that this was the first county bar association in New Jersey to sponsor collaborative training.
On June 13 and 14 Linda Piff led another successful Basic Collaborative Skills seminar to nearly 30 professionals at the Clinton Holiday Inn. The newly certified attorneys (and I assume the several mental health professionals present) were very excited to become involved in a collaborative group, or form their own, and will be meeting here in my office soon to discuss their options. The New Jersey Collaborative Group members were also excited by the large turnout for Linda. Group president, Ken Rempell, noted that this was the first county bar association in New Jersey to sponsor collaborative training.
Monday, May 4, 2009
Are We the Canary in the Mine Shaft?
Last week, I had the opportunity to mediate as a volunteer for the Superior Court in Hunterdon County in what is called “the Blitz.” This is a process where the oldest and most difficult divorce cases are brought in by the Family Division to meet with a panel of two attorneys for intensive mediation. The Blitz is intended to be more involved than the Early Settlement Panel (“ESP”) conferences, and follow the economic mediation, which is also required if the ESP is unsuccessful. My panel was assigned four cases that all averaged two years on the docket from date of filing.
The first thing the parties heard from the judge that morning was that the Court did not expect to try any cases until sometime in 2010! If you recall from my March blog post, the Court then had announced that it did not expect to try cases for several weeks. So, the situation has gone from difficult to dire for people having trouble settling their cases. The judge added that if the Blitz did not work, then they still had to endure a very long time before they could expect to start a trial, and then the Court noted that it would not be able to commit successive days to the trial, but rather, call the parties in when the judge’s calendar permitted. Could our situation be anymore critical?
Is Hunterdon unique in this regard? Or, will more and more county courts, as well as those in other states, feel the need to cut back court time for divorcing couples due to cuts in state budgets? Has Hunterdon County become the proverbial canary in the mine shaft?
Understandably, the parties who came to our panel were not happy. First, they had been litigating for two years with no light at the end of the tunnel. Their legal fees were probably already in the tens of thousands of dollars. The economic bust had reduced their retirement accounts, and were further stripped through withdrawals in an effort to keep up with the living expenses of two households. Further, several of the parties owned businesses, so their profits were way down and with no prospect of an upturn anytime soon. How do you determine alimony under these circumstances? One could not have predicted more heart rending situations to mediate just a year ago.
There was no happy ending to the several matters we mediated that day. However, each party lowered their defenses after we gave them the time to lay out the difficulties blocking a final resolution, and once they understood that we were willing to spend as much time as possible to move the case toward a settlement. As soon as they began to trust us and the process, then progress began.
The point here is that the Blitz mediation in effect became a collaboration among the parties, their attorneys and the two mediators. The dynamic was working. Each of the parties left us with what appeared to be a new resolve to work at the difficult issues, and some even came up with action plans to reach the next step toward resolution. My panel partner, Patricia Smits, who is also a fellow member of the New Jersey Collaborative Group, and I were very gratified by what we witnessed and the thanks we received from each of the parties and their attorneys.
If the collaboration method can work for the hardest cases on the docket, then it will certainly work for the average dissolution. Imagine that these parties had a neutral financial consultant available at our Blitz, as they could have had in a collaborative setting, or a divorce coach present to assist in the stubborn parenting issues preventing a resolution of the economic issues. The sessions would likely have been more productive, and the divorces likely resolved much sooner, and with less stress to the family.
Now that the Court here has essentially announced its inability to resolve the most difficult cases by way of trial, alternative dispute resolution, such as collaboration, is the only method available to effectively bring about a final resolution to marital dissolutions.
Perhaps our Court's dilemma is the reason why over thirty attorneys and mental health professionals have signed up for collaboration training in June here in Hunterdon (or perhaps better referred to now as "the judicial ground zero"). Linda Piff of The Jersey Shore Collaborative Group will take the lead in this course. Like me, these professionals will grow from the experience and, ultimately, the public will be better served.
Thank you for reading my thoughts and please visit my new web site: www.kscounsel.com
BE ADVISED that these comments are not legal opinions and are not to be relied upon as legal advice. If you need legal advice, contact your county bar association; most of which have referral services. If you desire a collaboratively trained and certified attorney, go to http://www.collaborativepractice.com/
© Kevin M. Kilcommons, 2009
The first thing the parties heard from the judge that morning was that the Court did not expect to try any cases until sometime in 2010! If you recall from my March blog post, the Court then had announced that it did not expect to try cases for several weeks. So, the situation has gone from difficult to dire for people having trouble settling their cases. The judge added that if the Blitz did not work, then they still had to endure a very long time before they could expect to start a trial, and then the Court noted that it would not be able to commit successive days to the trial, but rather, call the parties in when the judge’s calendar permitted. Could our situation be anymore critical?
Is Hunterdon unique in this regard? Or, will more and more county courts, as well as those in other states, feel the need to cut back court time for divorcing couples due to cuts in state budgets? Has Hunterdon County become the proverbial canary in the mine shaft?
Understandably, the parties who came to our panel were not happy. First, they had been litigating for two years with no light at the end of the tunnel. Their legal fees were probably already in the tens of thousands of dollars. The economic bust had reduced their retirement accounts, and were further stripped through withdrawals in an effort to keep up with the living expenses of two households. Further, several of the parties owned businesses, so their profits were way down and with no prospect of an upturn anytime soon. How do you determine alimony under these circumstances? One could not have predicted more heart rending situations to mediate just a year ago.
There was no happy ending to the several matters we mediated that day. However, each party lowered their defenses after we gave them the time to lay out the difficulties blocking a final resolution, and once they understood that we were willing to spend as much time as possible to move the case toward a settlement. As soon as they began to trust us and the process, then progress began.
The point here is that the Blitz mediation in effect became a collaboration among the parties, their attorneys and the two mediators. The dynamic was working. Each of the parties left us with what appeared to be a new resolve to work at the difficult issues, and some even came up with action plans to reach the next step toward resolution. My panel partner, Patricia Smits, who is also a fellow member of the New Jersey Collaborative Group, and I were very gratified by what we witnessed and the thanks we received from each of the parties and their attorneys.
If the collaboration method can work for the hardest cases on the docket, then it will certainly work for the average dissolution. Imagine that these parties had a neutral financial consultant available at our Blitz, as they could have had in a collaborative setting, or a divorce coach present to assist in the stubborn parenting issues preventing a resolution of the economic issues. The sessions would likely have been more productive, and the divorces likely resolved much sooner, and with less stress to the family.
Now that the Court here has essentially announced its inability to resolve the most difficult cases by way of trial, alternative dispute resolution, such as collaboration, is the only method available to effectively bring about a final resolution to marital dissolutions.
Perhaps our Court's dilemma is the reason why over thirty attorneys and mental health professionals have signed up for collaboration training in June here in Hunterdon (or perhaps better referred to now as "the judicial ground zero"). Linda Piff of The Jersey Shore Collaborative Group will take the lead in this course. Like me, these professionals will grow from the experience and, ultimately, the public will be better served.
Thank you for reading my thoughts and please visit my new web site: www.kscounsel.com
BE ADVISED that these comments are not legal opinions and are not to be relied upon as legal advice. If you need legal advice, contact your county bar association; most of which have referral services. If you desire a collaboratively trained and certified attorney, go to http://www.collaborativepractice.com/
© Kevin M. Kilcommons, 2009
Monday, March 30, 2009
Court: No Trials or Hearings
It's come to this said state, due to the $50 Million Dollar cut in funds to the New Jersey Judiciary, our county, Hunterdon, will be reduced to just one judge for all family-related matters. Judge Ann Bartlett announced from the bench this morning that due to the appointment freeze on judges, and the retirement of a county judge at the end of the month, she will not have the ability to conduct trials or evidentiary hearings. She said it would be two weeks before she would be able to schedule a trial. I suspect that it will be longer, and the stress to litigants due to this delay will be tremendous.
This situation effects only this county, but the drastic step taken to cut spending may be repeated in other counties, and perhaps other states. If so, couples must consider whether they will even be able to obtain a resolution of their divorce from the courts in a reasonable period of time. Therefore, now, more than ever, collaborating resolutions (or mediation/arbitration) to family disputes may be a necessity due to the current economic turmoil.
The courts will always find the time to give attorneys time to present a settled case, usually taking us fifteen minutes. At least in Hunterdon County, for the foreseeable future, traditional litigation will not only be expensive but may not lead to a timely resolution of your divorce.
There is a better way to divorce-- through collaboration. What was created by Stu Webb, Minnesota, in 1990 is now practiced in Canada and Europe. The reason is simply because people understand that this method of divorcing makes the most sense, especially today.
BE ADVISED that these comments are not legal opinions and are not to be relied upon as legal advice. If you need legal advice, contact your county bar association; most of which have referral services. If you desire a collaboratively trained and certified attorney, go to http://www.collaborativepractice.com/
© Kevin M. Kilcommons, 2009
This situation effects only this county, but the drastic step taken to cut spending may be repeated in other counties, and perhaps other states. If so, couples must consider whether they will even be able to obtain a resolution of their divorce from the courts in a reasonable period of time. Therefore, now, more than ever, collaborating resolutions (or mediation/arbitration) to family disputes may be a necessity due to the current economic turmoil.
The courts will always find the time to give attorneys time to present a settled case, usually taking us fifteen minutes. At least in Hunterdon County, for the foreseeable future, traditional litigation will not only be expensive but may not lead to a timely resolution of your divorce.
There is a better way to divorce-- through collaboration. What was created by Stu Webb, Minnesota, in 1990 is now practiced in Canada and Europe. The reason is simply because people understand that this method of divorcing makes the most sense, especially today.
BE ADVISED that these comments are not legal opinions and are not to be relied upon as legal advice. If you need legal advice, contact your county bar association; most of which have referral services. If you desire a collaboratively trained and certified attorney, go to http://www.collaborativepractice.com/
© Kevin M. Kilcommons, 2009
Friday, February 20, 2009
Downward Modification in a Downward Economy
I was in the family court here in Hunterdon County two Friday’s ago. It was motion day and the courtroom was packed with attorneys and a few pro se litigants ready to make their arguments to the judge about why she should alter her preliminary decisions, which are typically issued by fax the previous afternoon. What struck me about that morning, other than the fact that it was the busiest I had seen a family court on a motion day in some time, was that all the motions I heard involved applications to modify judgments as a direct result of the down turn in the economy. Such are the times.
Also, it became clear that day, as well as during the Family Law Symposium held in New Brunswick last month, that the Family Part court here in New Jersey has been swamped with modification applications due to loss of income and business set backs. A loss of income affects the ability of an obligor to cover child support, alimony and college expenses for the children. The problem, however, is that the obligation to pay a sum certain remains until the present judgment/order is officially modified. Often times, these applications cannot be resolved in one visit to court on motion day (after length and expensive preparation of certifications and briefs), but also require the court to hold plenary hearings to establish the facts and make findings of law. This takes months to schedule, and will be preceded by a period of discovery in which documents are exchanged and, perhaps, depositions are conducted. The problem is, if the former spouses are already financially stressed due to a job loss, how will they pay for another round of litigation?
More than ever, collaboration may be the best means of quickly addressing the effects of a bad economy, and before both of the households of the former spouses are beset with unpaid bills and violations of standing support orders.
The several judges whom spoke at the Symposium were asked how their perceptions of modification applications may have changed in the past six months. Before the economic down turn, most judges would expect a jobless obligor to take at least a year before coming to court and asking for a downward modification of support. They expected him/her to show a paper trail of attempts to regain employment, and/or proof that the previous income was unobtainable—and not due to their own voluntary acts. These wait times have varied from judge to judge, and from county to county.
The judges responded that, indeed, they were taking note of the impact of the job market and would not be as stringent in their proof requirements going forward. This was good news, but it still remains unclear just how long an obligor must wait, and just what proofs concerning employability or ability to maintain the previous income level they must present to satisfy the court that modification is warranted.
Regardless of how much time the judges will now require, and whether there needs to be a proof hearing before a decision will be issued, most people do not have the time or money to pursue the traditional method of modifying judgments and property settlement agreements in post-judgment applications. Further, the courts are now swamped with these applications. Therefore, former spouses should recognize that the sooner they get into a collaborative process to negotiate the support issues, the better off for the entire family. Once they reach an amicable, and equitable, agreement, it can be reduced to a consent order and sent to the court, which will sign it without any need for a court appearance. Now, the courts would much rather exercise this function, knowing that experienced collaborative attorneys have been involved, than add another post-judgment application to its docket.
Just as in divorce, there is a better way to resolve modification issues, such as college expense contributions and alimony, and that is through collaboration.
BE ADVISED that these comments are not legal opinions and are not to be relied upon as legal advice. If you need legal advice, contact your county bar association; most of which have referral services. If you desire a collaboratively trained and certified attorney, go to http://www.collaborativepractice.com/
© Kevin M. Kilcommons, 2009
Also, it became clear that day, as well as during the Family Law Symposium held in New Brunswick last month, that the Family Part court here in New Jersey has been swamped with modification applications due to loss of income and business set backs. A loss of income affects the ability of an obligor to cover child support, alimony and college expenses for the children. The problem, however, is that the obligation to pay a sum certain remains until the present judgment/order is officially modified. Often times, these applications cannot be resolved in one visit to court on motion day (after length and expensive preparation of certifications and briefs), but also require the court to hold plenary hearings to establish the facts and make findings of law. This takes months to schedule, and will be preceded by a period of discovery in which documents are exchanged and, perhaps, depositions are conducted. The problem is, if the former spouses are already financially stressed due to a job loss, how will they pay for another round of litigation?
More than ever, collaboration may be the best means of quickly addressing the effects of a bad economy, and before both of the households of the former spouses are beset with unpaid bills and violations of standing support orders.
The several judges whom spoke at the Symposium were asked how their perceptions of modification applications may have changed in the past six months. Before the economic down turn, most judges would expect a jobless obligor to take at least a year before coming to court and asking for a downward modification of support. They expected him/her to show a paper trail of attempts to regain employment, and/or proof that the previous income was unobtainable—and not due to their own voluntary acts. These wait times have varied from judge to judge, and from county to county.
The judges responded that, indeed, they were taking note of the impact of the job market and would not be as stringent in their proof requirements going forward. This was good news, but it still remains unclear just how long an obligor must wait, and just what proofs concerning employability or ability to maintain the previous income level they must present to satisfy the court that modification is warranted.
Regardless of how much time the judges will now require, and whether there needs to be a proof hearing before a decision will be issued, most people do not have the time or money to pursue the traditional method of modifying judgments and property settlement agreements in post-judgment applications. Further, the courts are now swamped with these applications. Therefore, former spouses should recognize that the sooner they get into a collaborative process to negotiate the support issues, the better off for the entire family. Once they reach an amicable, and equitable, agreement, it can be reduced to a consent order and sent to the court, which will sign it without any need for a court appearance. Now, the courts would much rather exercise this function, knowing that experienced collaborative attorneys have been involved, than add another post-judgment application to its docket.
Just as in divorce, there is a better way to resolve modification issues, such as college expense contributions and alimony, and that is through collaboration.
BE ADVISED that these comments are not legal opinions and are not to be relied upon as legal advice. If you need legal advice, contact your county bar association; most of which have referral services. If you desire a collaboratively trained and certified attorney, go to http://www.collaborativepractice.com/
© Kevin M. Kilcommons, 2009
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