Tag: Litigation

Mediation in Divorce Cases

This Week’s Blog by Carole T. Orland

What is Mediation in the Context of Divorce?

Mediation can be a helpful approach in certain divorce cases. Typically the mediator is a lawyer who objectively tries to help resolve your case or specific issues within the case.

Are There Different Kinds of Divorce Mediations?

Yes.  Sometimes the parties hire a divorce mediator before either one has filed for divorce or shortly thereafter. Often the reason is that they are desirous of an amicable process and resolution at a moderate cost.

In other instances, the parties litigate the divorce with counsel and at some point decide they want assistance in settling the case, typically before trial. In this model, they usually hire a retired judge or elder statesman of the bar to conduct a session with the parties and counsel. This process can last anywhere from several hours to a full day.

On occasion, parties who are represented by counsel may hire a mediator near the beginning of the case to help resolve disputes as the case is litigated.

Is Mediation the Opposite of Litigation?

Not necessarily. As described above, mediation is often done in the context of litigation. Litigation is not necessarily a scary term and does not have to be contentious or nasty. It is often a conventional way of moving the divorce process along. In some instances it can be easier, quicker, and less expensive than mediation.

When Does Mediation Without Counsel Work Best?

If the parties have trust in each other and share the same objective and timetable for resolving their divorce, mediation can be a good approach. Of course, it is key to hire a reputable, experienced mediator. 

When Does Mediation Not Work Best?

Often, trust has eroded leading up to divorce. Also, sometimes the parties are on such unequal footing with regard to an understanding of financial issues, that the well informed party has an inherent advantage to the detriment of the other party. A common refrain is: “Let’s go to mediation. We will avoid lawyers and save money. We can work this out!” Sometimes, that obfuscates the underlying motive of trying to “put one over” on the other party. A failed mediation can be a real detriment to ultimately resolving the divorce as it can be a waste of time and money, as well as a disappointment when it is perceived that a spouse has not acted in good faith.

Is Mediation a Good Approach to Resolving the Part of the Case Relating to Child Custody and Parenting Time?

It can be. Good divorce lawyers make it their business to resolve custody and parenting issues at the beginning of the case. But an alternative might be that the parties resolve these issues on their own with a mediator. In that case, the mediator may be a mental health professional, such as a family therapist.

What Does it Mean to Have a Mediation Coach or Review Counsel?

Most of the time, parties who hire a mediator on their own will also separately hire lawyers to coach them as to divorce laws, strategy, and outcomes. They also may hire review counsel to review the Separation Agreement drafted by the mediator. The coach and review counsel are often the same person. This adds another layer to the process and additional cost. There is also the potential that review counsel’s opinions may de-rail the process at the end of mediation. It is important for parties to stress to their review counsel that they are not looking to re-write the proposed Separation Agreement, but rather looking for any potential minefields.

At Broder & Orland LLC, with offices in Westport and Greenwich, CT, we are experienced in all forms of divorce mediation. We act as mediators for parties who have or do not have counsel, and attend mediation with our clients in many of the cases we litigate.

How to Catch a Cheater

This Week’s Blog by Christopher J. DeMattie

As technology rapidly advances, more and more of our daily activities are uploaded to our many electronic devices.  Information is becoming more permanent, and the electronic trail left behind is growing.  It is extremely difficult to keep an electronic secret, so if your spouse is cheating on you there is a good chance you will be able find out from his or her electronic devices.  In the recent past, the first places to look would be phone logs, text messages, and e-mails, but there are many more clever places to look.

What are the Best Apps to Catch a Cheating Spouse?

iPhone Notes – Most people use this application to take notes or set reminders.  However, did you know you can share your notes with another person?  When you share your notes with another person, each enabled user can edit and view the specific notes page.  So instead of sending text messages or e-mails, a cheating spouse can communicate with his or her paramour through the notes app without leaving an electronic transmission trail such as a text message or e-mail.

Screen Time – This new feature for the iPhone tracks how much time a user spends on his or her iPhone each day.  The data is further broken-down by minutes spent on each app, messages transmitted, and phone calls.  So if your spouse is spending more time than usual text messaging or if he or she is spending time using a new app, especially a new messaging app (WeChat, WhatsApp, Slack, or Messenger) it may be an indication he or she is hiding something.

Uber – Unlike texts and e-mails, absent completely deleting the Uber app, there is no way to delete the trip history.  So by accessing the Uber app you can see your spouse’s entire ride history.

Vault / KeepSafe – Vault (iPhone) and KeepSafe (Android) are apps that let you store electronic data, including photos and videos, in a password protected folder on your phone or tablet.

iCloud – Is accessed by inputting an Apple ID and password.  Per Apple, iCloud backups include nearly all data and settings stored on the device. iCloud backups do not include data stored in other cloud services, like Gmail.

Google Maps – If you access Google Maps and select “Your Timeline” you can all of the places the user has visited on any given date and time.  Like the Uber app, reviewing the “Your Timeline” can be very instructive on reconstructing a person’s day.

How do I Legally View my Spouse’s Electronic Devices?

The first step is generally to serve a Request for Production of Documents or Request for Inspection of an Electronic Device.  By making the Request, you put your spouse on notice as to the materials you are requesting to review and/or inspect.  Your spouse then has an obligation to produce the requested materials, which could include a forensic or mirrored copied of his or her iPhone, laptop, or tablet.  However, your spouse could assert various objections to the Request(s), and absent an agreement, the Court will determine the scope of discovery.

In addition, you may serve on your spouse and his or her cell phone provider, a “Litigation Hold Notice,” directing each to preserve several categories of electronically stored information including text messages.  Generally, cell phone providers only retain the content of text messages for three to five days depending on the provider, so it is unlikely you will be able to subpoena the content of your spouse’s past text messages.  However, if a “Litigation Hold Notice” has been served, it is likely the content, time, and location of the text message will be discovered.

Before engaging in any electronic surveillance, be advised that there are many federal and state laws related to stored electronic communications.   It is advisable to consult with an attorney to verify that you do not engage in any unlawful activities related to your spouse’s electronically stored information.

Broder & Orland LLC, with offices in Westport and Greenwich, CT, concentrates specifically in the areas of family law, matrimonial law and divorce.  As experienced divorce trial lawyers we can advise you how to legally obtain your spouse’s electronically stored information or how to protect your own.

What Will My Divorce Cost?

This Week’s Blog by Carole T. Orland

  • The complexity of your case is a cost factor but the size of the marital estate may not be a major factor.
  • Cost may depend on opposing counsel.
  • Retainers and hourly rates aren’t always indicators of projected costs.
  • You can minimize the cost of your divorce case by being a cooperative participant.
  • Adopting realistic expectations will reduce costs in the long run.

What will my divorce cost? This is one of the most frequently asked questions of divorce lawyers at an initial consultation. Every client should make sure to have this discussion up front. But don’t be surprised if the answer is: “it depends,” because it does depend on many factors, some of which are outlined below.

The Complexity of Your Case

A common myth is that it is related to the wealth of the parties. This is not necessarily true. Some of our ultra-high income/high net-worth cases in Greenwich and Westport are the simplest ones. Conversely, some of the very moderate financial cases can be trickier, and thus more time consuming. Custody cases are by nature protracted and typically costly. But certain cases that at the outset appear to be custody cases, are really more about parenting time and access, and thus resolvable in a reasonable time frame.

Opposing Counsel

Experience, abilities and approaches vary widely amongst counsel in Fairfield County and beyond. We typically ask, “Who will be representing your spouse?” As experienced lawyers, that gives us great insight into how the case will be handled. Will opposing counsel be inclined to work cooperatively and collaboratively? Or will we experience scorched earth tactics? The answers to questions such as these provide a window for us as to the tenor of the case, and consequently, the cost.

Retainers and Hourly Rates

You will find these will vary from lawyer to lawyer and deciphering the projected cost of your case can sometimes be confusing. Divorce lawyers are free to set retainers as they see fit. But be careful. Don’t project costs on the retainer alone. Some divorce lawyers may quote low retainers but will be entitled to receive refresher retainers if your retainer funds run out. Other lawyers may have higher retainers and then will refund any portion not used. Virtually all divorce lawyers bill for their time as they go along. Hourly rates for divorce lawyers vary widely but again, the hourly rate doesn’t tell the whole story. A very experienced divorce lawyer may charge $750 per hour and a much less experienced may charge $500 per hour. At first blush, you may be inclined to think the lower rate is more cost effective. However, the very experienced lawyer may move through your case a lot quicker, requiring less preparation and research. It may be hard to do the analysis since most divorce litigants are new at this, but you should be able to get a better feel for it once you have your initial meeting with counsel. Also, you can hopefully rely on your referral source for further clarity.

Cooperation with Counsel

Most often there are opportunities to streamline costs by cooperating with your lawyer, especially with regard to discovery. This means taking the initiative on your own to assemble documents which we know you will be required to produce. Responding to your lawyer’s e-mails and calls in a prompt manner also saves time and money. Clearly developing an agenda prior to a call or meeting will result in greater efficiency.

Adopt Realistic Expectations for the Resolution of Your Case

So often, too much time is wasted on staking out unrealistic positions or posturing for a perceived tactical gain. Most divorces involve negotiations, so to some extent there will naturally be some back and forth, but it is critical to be strategic rather than adversarial. An experienced divorce lawyer can provide you with a context for settlement or a likely outcome after trial. You should rely on that advice and be amenable to working through your case in an efficient way to achieve the likely result. It can be a pyrrhic victory to achieve your best case scenario, only to pay more in fees than it cost to achieve that result.

Despite the cost-saving measures discussed above, there are certain aspects of divorce litigation that sometimes cannot be controlled and which will drive up costs. The court system itself is often riddled with delays and unexpected twists and turns, which are not the fault of your lawyer. At Broder & Orland LLC, we have vast experience in litigating and settling divorce cases and always strive to make our cases most cost-effective for our clients.

WHAT DIVORCE PROCESS IS RIGHT FOR ME? PART III – LITIGATION

The previous posts in this series discussed mediation and collaborative divorce and this post will continue with litigation.

LITIGATION

You most likely associate the word “litigation” with nasty court room battles at a great expense. In some instances that is the case, however, “litigation” does not always have to be an expensive battle. In its simplest form, litigation is the process of taking legal action. Whether you choose mediation, collaborative, litigation, or alternative dispute resolution divorce models, you must take legal action against your spouse, which means a Marshal serves your spouse with the Summons, Complaint, and Automatic Orders, and then you file those documents with the Court. The differences between the various models hinge on what course you and your spouse decide to take after the action is filed with the Court. Sometimes you do not have a choice based on your spouse’s actions, and the default model is litigation. Irrespective of the model, you and your spouse must still resolve the same issues including legal custody, physical custody, alimony, child support, housing, division of bank, brokerage, and retirement accounts, and the division of personal property.

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