My Blog

My blog is meant to inform but its primary purpose is not to be informative. It is about the law but it is not solely about the law but also about those places the law does not go. The law is the platform from which I dive. My blog is about my opinions but is not primarily about my opinions since I often temper these to the subject matter on hand, not to mention the imagined audience. Quite often when I open a subject which is related to the law for discussion, I find myself in a place I never meant to be, or to go, as if the subject takes on a life of its own. I write articles based on what I do for a living, and I am a family lawyer, but of course that is not all I am. I find that when I engage with a subject, and use writing to express my thoughts, that quite often the journey is more interesting than the end and that what I thought I was writing about is not what I wrote about at all. This seems to me to be a metaphor for life. I write, therefore, to throw some light into the dark, to increase my understanding and by extension hopefully, other people’s understanding of what often seems incomprehensible, to enliven the dull so my spirit does not sag and to throw some humour at what is often deeply sad so that I can, or maybe, dare I say hopefully, “we”, can gain perspective. I doubt I succeed but the effort is honest.

Monday, June 25, 2018

Tax Implications of Separation and Divorce

It is remarkable how similar many of the tax provisions we have in Ireland relating to marriage, separation, and divorce to those in other jurisdictions.  This struck me when I came across an article on Hogan Injury website recently.  I am attaching the article here for you to have a look
Hogan Injury is a very large Californian law firm with various offices around California.
It struck me reading this that I should perhaps do a post/article on the position in Ireland in relation to tax.  Many people it would seem go through separation and divorce without considering the issue of tax to any great extent and that is unfortunate. It is an important consideration.
Sometimes couples separate without any formal arrangements.  If you do this, then it is very important that you take tax advice on both of your tax positions based on whether or not you formalize your situation.  We all know that running two households can stretch a budget over its natural limit and put people into debt very quickly.  Should one party contact the Revenue and change the delicate balance, it can have implications for parties that were not intended when one of them agreed to move out.  It is generally advised on the internet that you should inform the Revenue about your physical separation however, this is often not carefully considered by the couple or either of them before they do so.  The couple or either of them has generally not sought advice before advising the Revenue of their situation. I would say do not advise the Revenue until you have taken proper advice from an accountant or solicitor with expertise in family matters and I would particularly stress that if you are not sure your separation is final then do not contact the Revenue until you are sure and until you have taken advise.
As part of the formalization of a separation or divorce, a couple should contact the Revenue Commissioners so that tax adjustments can be made for the year in which the couple separate.  The couple must confirm in writing before the end of the tax year which tax option they are choosing.  Gay couples may now marry as the world knows however, people may not know that as and from the 16th November 2015 Ireland no longer has the legal status of Civil Partnership available.  However, couples who became civil partners before that date, are able to avail of the tax provisions applicable to married couples.  There are three tax options available to married couples and they are:
Single: i.e., taxed as two single people and that option is available to a couple post separation or divorce. Please note that choosing to be taxed as a single person when you are married is not favorable in many circumstances and advise should definitely be taken on this.
Separate Assessment: The tax affairs of the spouses are independent except that some tax credits can be divided equally, for example, the married tax credit, age tax credit, blind person tax credit, and incapacitated child tax credit.  People who are separately assessed will on separation/divorce be assessed up to the date of separation in the normal way and can transfer any unused tax credits and rate bands to each other.
Joint Assessment: Under this one spouse is accountable for tax purposes and he/she is called the Accessible Spouse (AS).  The AS is entitled to married person tax credit and double bands for the full year in which the parties separate.  This can be a tremendous financial boost for a couple at a very difficult time.  The year of separation throws up a unique anomaly i.e., the credits and bands available to a separating couple can actually work out higher than would otherwise apply to a married couple.  The accessible spouse receives the married tax bands and the tax credits for the entire year with the alternate spouse benefiting from their own single person’s bands and credits.  The couple must advise the Revenue in writing of their separation before the end of the tax year if they are opting for joint assessment and they must be resident in the jurisdiction, there must be a legally enforceable agreement in place.  In addition, they must not have remarried. Advise on timing may be very important quite apart from tax advise per se.
Separated or Divorced spouses may choose to be taxed either as a married couple or single persons after the year in which they separate i.e. Single or Joint Assessment.  The payment of maintenance and the type of maintenance will have a large bearing on which should apply and again advise is crucial.
Quite often people are caught out by voluntary maintenance and when they find out that they could have claimed tax relief think that they might be eligible for a refund.  Note that voluntary maintenance is ignored for Income Tax purposes.   Spousal maintenance is taxable in the hands of the receiving spouse.  It is paid out of the payers’ gross income and is accordingly, taxable in the hands of the receiving spouse.
Apart from Income Tax, there is no CGT (Capital Gains Tax) on disposals between spouses which are made on foot of a separation agreement court order or a divorce.  Capital Gains tax arises on gifts or sales. It is worth noting however that the transfer of assets after the granting of a decree that is not ordered by the court are not exempt.  Another tax applicable is CAT (Capital Acquisitions Tax) and this applies to gifts or inheritances.  The value of the gift or inheritance is its open market value and between spouses or civil partners, there is an exemption.  Capital Acquisition tax will not apply to a property transfer made by the court on foot of a separation or divorce.
In addition to the above transfers between spouses and transfers between spouses on foot of agreement for separation, an order of the court or divorce, are exempt from stamp duty.  Finally, for the purposes of this article which is not meant to be exhaustive in any sense, parties who are separated or divorced post 15-6-2000 and who arising of said separation purchase another house and the other spouse remains in the family home may qualify for a first- time house buyers’ grant.
CGT provisions and CAT are similar in California cf article of Hogan Injury referenced above.
One other matter arises since it was also mentioned in the US article referenced above, and that is what is known here as SPCCC(Single Person Child Carer Credit) which is a tax credit in favor of a person caring for children on his/her own.  From January 2014 this only applies to one spouse.  Previously it had the potential of being claimed by both depending on the custody/child residency arrangements. This is an allowance if you have children residing with you and you are the primary custodian/parental residence.  It can, however, be waived and given to the other spouse.
Foreign divorces are recognized in Ireland and therefore a foreign maintenance order can be recognized for tax purposes.
Dry stuff, but death and taxes- what can I say, hardly amusing subjects!

Monday, January 15, 2018

I’ve made my bed and now I must lie on it..

Many people still feel that parents should stay together for the sake of their children putting them first and their own needs second.  A growing body of research, however, indicates that the opposite may well be true.  A recent study conducted by the University of York has found that the children of divorced parents are more damaged by the arguments that occurred in the marriage itself than by the split afterwords.  Having disagreements is perceived and is, of course, normal but it is when those disagreements remain unresolved that the children tend to have long term problems. You would be astonished by the number of divorcing or separating parents who believe or convince themselves, that their children have no true idea of what is going on.  Children are like aerials when it comes to their parents, they are completely attuned to how the parents are relating to one another and highly perceptive.   Even when the parents do acknowledge that the children must have sensed the atmosphere or overheard the arguments, they still think that they can contain any damage to the relationship between them as parents and their children.  However, that is not true.  A Dad who is having frequent difficulties in his relationship is more likely to filter this into how he relates to his children and how he parents than the mother of the children.  Mums seems to be better at insulating their children from this kind of spill over effect which does not, however, exempt Mums as every lawyer knows Mums can and do consciously and usually unconsciously alienate their children from the other parent.
Parents need help to change behavioural patterns to enable them to stop conflict.   It is unlikely they can do this by themselves particularly as in my experience, so few of them want to accept that their children are affected by their behaviour.  It is true that all human relationships have disagreements and conflicts but if those conflicts are frequent, hostile and heated, this is a problem and if there is withdrawal and silence between the couple, or verbal insults, raised voices and physical aggression, we have major issues.
Among other things, children need love and a safe environment.   In order for children to feel safe they must know what conditions to expect from their living arrangements and the significant adults caring for them.  Where there is constant arguing, periodical withdrawal, unbearable silences, or physical abuse to name a few, children will feel entirely unsafe and such feelings will impact on their physical and mental health significantly.  As well as potentially suffering from depression, hostility and acting out, they can also take on the role of the super good child who becomes parent to the parents.  Parents will often overlook unusual behaviour particularly, if it assists them in their lifestyle e.g., the saint like child.  Children need their time to be children so being saint like or having an overdeveloped sense of responsibility is not good and is not a sign that your child or children are doing well quite the contrary in fact.
The simple truth is that children find unresolved marital conflict deeply disturbing.  Study after study has shown that children react to parental arguments physiologically as well as mentally by showing increased heart rate and blood pressure.  Such physiological reactions have been detected in children as young as 6 months.
Parents who are in the process of separating seldom have good communication.   Some do, but it is rare.  Most parents need help with their communication as parents since their communication as spouses/partners has broken down.  The first step is recognizing that civilised communication will make for less stressful and ultimately good parenting.  Good communication will go a long way to ensure that your children have good outcomes long term.   The good news is that with willingness and work on both sides, it is possible to have a very civilised post relationship parenting relationship.  Once you have recognized the communication issue the next step is to look for a civilized and resolution orientated way of sorting out your separation or divorce.  Not only will this take your children out of the centre of the battlefield, it will also reduce conflict between you and your ex, demonstrate new ways of communicating and also model good conflict resolution for your children.  It takes time, commitment, focus and work but it is absolutely worth it if you place a high value on your children’s welfare.
Uniquely, the collaboration process as a one stop shop can offer most of what you will need to achieve the above.   The process works by combining a number of different professionals in one location to advise the team rather than any particular person in the team. In addition, there are two aligned professional namely the lawyers.  One or two of those professionals depending on the couple’s specific needs are what we loosely call mental health professionals, meaning counsellors, psychotherapists etc., whose specific job it is to help the separating couple to establish a new pattern of communication by helping them to become aware of their patterns of communication and to practise and demonstrate other ways to re-communicate given their stated goals. We call such people collaborative coaches.  Lawyers, as I said, also form part of the professional team and their job is to represent their individual client in this process which means they operate only within the integrity of the process to seek resolution because you have opted for this process and that is what honours your instructions.  Within that context and only within that context, you will be independently legally advised at all times should you request same.  Within the process it is the lawyers job to advise on legal issues, create options for you, and generally help you to reach agreement while feeling safe and protected.  The lawyers will also draft your agreement and rule it in court as a consent agreement when that time comes. The process also allows for other professionals such as accountants and child specialists.  It is important to note, however, that everyone in the room must have, as well as their personal professional training, collaborative training and mediation training.  No one is equipped to do this work unless they have training.

Protection for abused spouses and partners.

Have you been told not to sign things without reading them?  Have you signed documents without reading them despite this advice?  Were any of those documents legal documents or forms or documents with a Harp on top or the name of a well-known establishment or Bank emblazoned at the head on the top of what you are signing?  Were they presented to you by your partner/spouse with another document covering them or half his or her arm obscuring the document from your view or did you even look or check to see if there was another piece of paper sitting on top of what you were signing? Were you told what they were, did you ask or did you just sign? Were you told that your signature was required immediately as they had to go in the post straight away?  You would not be alone if you did sign in such circumstances and, of course, as a general rule, we should be able to trust our partners and spouses.  Experience, however, teaches otherwise.  Few people would have much sympathy for you if you did sign in those circumstances.  The above kind of situations happens more to women than men in my experience since men usually do the business side of a couple’s affairs and are the ones engaging with banks, solicitors, and revenue.  Not always but generally speaking.  Those people with little or no sympathy are generally the same people who discourage prenups or any form of financial inquiry prior to marriage and would argue that there should be complete trust in those relationships.  Double standards? You betcha.  Cosmetically, this is a brave new world of equality and fairness but many of the old double standards lie underneath. In some ways, we were better off when we knew they were there because the term political correctness had not been invented and so people articulated their prejudices freely.   In short, we knew the enemy then for what they were.

Why would a woman, in particular, sign forms without asking questions in a marriage or relationship?  It depends on what the marriage is like, in that many women are bullied within marriages or relationships, suffer domestic violence or cruelty and often live with depressed and mentally ill partners as well as alcoholics, drug addicts etc.  Of course, all of this could apply to men too and I am not denying that.  It just so happens, however, that it mainly applies to women and the statistics bear that out.  When women live in those circumstances and many do for quite some time, they have usually hit rock bottom in the self-esteem stakes or are completely cowed or both.  Many of these relationships have settled into a survival mode which is quite often based on “I won’t ask any questions and I won’t rock the boat”.  Such women know from long experience the outcome of asking too many questions or thwarting their partner or spouse in any way.

The question is – what, if anything, can be done to help such women i.e., the kind of woman that consents to the sale of property or to a re-mortgage of a house or family home without knowing what she is signing or why? Where should the onus lie to ensure that such women are fully informed and independently advised of their rights?  The current legislation governing some of these situations is The Family Home Protection Act 1976 and that Act says that a spouse cannot convey i.e., transfer (that includes a mortgage) a family home without the prior written consent of the spouse even if that spouse is not an owner.  A family home is defined as a house in which a married couple ordinarily reside and can include a residence in which they previously resided. It does not include a marital asset in which they never resided and which is in one party’s sole name.  It is also important to note that while a bank or building society giving a mortgage is obliged to seek your consent prior to granting the mortgage, they have no obligation to meet with you or to ensure that you get independent legal advice.  In addition, people to whom your partner or spouse owes money and who as a result of not being paid the full or any of the amount owing, seek to register a judgment debt against your home, do not have to have your prior consent and can register without your knowledge.  Assuming for the purposes of this discussion that the property in question is a family home then your prior written consent is required but you now know that it can be given on the kitchen table, it does not have to be given in a formal setting.  Should such an important signature only be given in a proper and formal setting?  Absolutely.  It should also be given privately in as congenial but formal circumstances as possible to ensure that you really are in agreement and know what you are doing.  There should be a legal obligation on the Mortgagor to ensure that he or she not only had that interview with the spouse or partner but furthermore, that advice was given and rejected to seek independent legal advice.   The consequences of these requirements should be sufficiently onerous to ensure compliance and not just lip service to providing more elbow blocking documents to be signed. Who should cover the cost of independent legal advice to the non- owning partner or spouse – the person seeking the mortgage and it should form part of the application for the mortgage?  The Application for the mortgage should be kept on file and be available to a spouse or partner or request from their solicitor.  The Application should ask if the person applying is married or in a cohabiting or civil partnership relationship?  The Application should ask the Respondent to consent to an independent interview with spouse or partner in the context of this application and to agree to discharge cost of legal consultation.

We are paying a lot of lip service to domestic violence and it is about time that discussion became serious and real but we need to think outside the box on these matters.  In practice, I have come across far too many situations where I genuinely feel that the Banks, in particular, are way too casual in these matters.

What happens if one spouse is in charge of paying the mortgage on the family home or one spouse is responsible for monitoring the banking finances and cancels a standing order without the knowledge of the other.  Again, is the Bank’s obligation in this matter satisfied if they simply write a letter to the two of them sending it to the husband/wife’s business address without asking any questions or to the family home without knowing if the wife might see such correspondence or the husband as the case may be?  Is it even satisfied if they write to both of them separately at the home address but it is obvious from the envelopes that it is the same letter?  In common with all family law solicitors, I have been told by wives, husbands, and partners of never seeing any such letters or being told about them and not knowing about failures to pay and arrears on the mortgage as well as debts being run up.  Here again, we need to think outside the box and ensure that the Banks have obligations which go beyond just writing letters without thinking about what might be going on.  God Knows they make enough money so giving them some responsibility is hardly out of the question.  Of course, they will resist it, everyone resists new responsibilities but they will adapt.  Fear not.  Even if their only obligation was to ensure that the wife or husband in such situations had to take legal advice and that they could not give the loan, the mortgage, cancel direct debits or clear joint accounts (regardless of the terms on which the said account was held) without the consent in writing from the spouse or partner accompanied by a letter from a solicitor on headed notepaper confirming having met the party and been satisfied that the person wanted to consent or knew what was going on or as the case may be.  Some people will feel that is going too far, I am wondering if it is far enough.

For the rest of you, not bullied, not abused in any way, whose husbands or wives have no known addictions and who can check everything financial and property wise with no difficulties, and who still sign without knowing what they are signing – what can I say?  There is one born every minute.

Friday, December 22, 2017

Grandparents – the force that binds.

Grandparents can be the glue that binds families together or they can be a divisive and destructive force.  No where does this apply more poignantly than where there is breakdown or strife in their children’s matrimonial or family relationship.  In my experience when grandparents take up the cudgels for their individual adult children or take sides in a family dispute, it never ends well for the grandparents particularly.  After the dust has settled the vast majority of parents have to rub together somehow for the sake of their children, but estranged spouses specifically if the estranged non-relative spouse is the custodial parent can retain animosity for a very long time towards their in laws now outlaws so to speak.
Just as tact and diplomacy is required in negotiating the parenting relationship from a grandparenting perspective so to is it required in the breakdown of such relationships.  Being supportive of your son or daughter in such situations is not something that should include alienating the other party to the point where you will not have contact with your grandchildren.  Reaching out to the grandchildren through the parent with whom they reside whether that be your adult child or not, is key to maintaining those vital relationships.   Of course, you should do so with your adult child’s full knowledge and consent. 
When a relationship breaks down, children can be forgotten in the conflict.  Of course, everyone pays lip service to the importance of the children but reality is somewhat different 9 times out of 10.  Parents argue in front of their children or in earshot of them.  Parents have inappropriate conversations about the other party with friends and relatives in the children’s presence or in earshot.  Parents deny access for no good reason or are in mean and spiteful to each other for no good reason.  They refuse to give one another passports to take the children on holidays and play brinkmanship up to the last minute all but ruining the holiday for all concerned.  They play hurtful games with each other not responding to texts about where they are taking the children on holidays, allowing the children to have phone contact and not advising of their plans on time or at all.  These are only some of the behaviours I can name – there many more.  Whether or not such parents have any conscious awareness that in seeking to hurt one another, they are also hurting and wounding their children is not entirely clear but the grandparents being a little more distant can see it clearly. Parents locked into this sort of dynamic often view the world through a black and white lense, you are either on their side or not.  The children sit on the sidelines watching getting upset and confused.  It is in this situation that the grandparents both paternal and maternal particularly if they have been close to their grandchildren, can play a vital emotionally supportive role for their grandchildren. 
Research here and abroad shows that grandparents of the noncustodial parent can often be sidelined post divorce/separation. It is important not to allow this to happy for the sake of the grandchildren as well as your own.  A willingness to help will go a long way.  Being a single parent is very difficult even if that is all you have ever been however, growing into that role when you have had another parent is very hard indeed so help with child care enabling parents to continue to work at a vulnerable time, taking children after school or collecting them from school, having them for some of the holidays so that a parent can get a break, would all be most welcome. Having an open door policy for the grandchildren themselves particularly if you live close by or are on the way home from school, would give the children much needed continuity in a changing environment and provide them with the unconditional consistent love they need.  Grandparents who develop early emotional bonds with grandchildren will find they last.  The middle generation is of vital importance in determining closeness.  When grandparents and their adult children are close then closeness with grandchildren comes naturally and easily.
One of the things that I have found most interesting in my reading on the role of grandparents and reflection on it, is that there is a whole language around this that I was not aware of.  The Grandmother Hypothesis for example is a fascinating theory that women often live a lengthy live post menopause because of the important nurturing role they play in grandchildren’s lives.  Another one is Intergenerational Solidarity which refers to the broad reasons why some grandparents manage to get close to their grandchildren and others do not – things such as geographical closeness, flexibility when it comes to technology and using it for communication, frequency of contact and grandparents function within the extended family.  It is important to note however, that caring for your grandchildren as a childminder does not determine closeness.  In this area, it is the relationship itself that determines the closeness rather than any function as such.  Another great phrase is “Ex-Kin Keeper Role”.  This refers to the non-relative custodial parent.  Grandparents can be a conciliatory and stabilising force if they have the wellbeing of their grandchildren to the fore and the wish to stay in contact with them.  Their role can be summed up in Distract and Reassure. 

I have long thought that in collaborative family law practise we should extend our role to provide a communication forum for grandparents with the separating parents and indeed extended family (ie aunts uncles etc) as to how they can help and be a bridge for future communication ensuring the transition for all the family to the benefit of the children.  

Monday, December 11, 2017

Homelessness and Relationship breakdown

I am all in favour of long term strategies to get to the root of a social problem.  On the other hand, when I see an immediate and pressing need, it seems to me that I have to respond to what is in front of me albeit not a long term or satisfactory response.  This pragmatic streak has always caused me to have theoretic difficulties with many of my more idealistic reforming friends who see me as shoring up a tired and unworkable system with this approach. Rationally, I know they are right but when an individual need presses itself upon you, are you supposed to turn away because it does not fit with long term strategies?  I am prepared to live with my inconsistencies!
Such a difficulty is presented with homelessness.  Focus Ireland say we have a broken housing system. Trying to get your head around that is very difficult especially when the complexities which give rise to the problem are so many and so intricate.  As the crisis seems to just get worse and worse, I get overcome with the enormity of it and a feeling of hopelessness.  I think a lot of people feel like this about national and international crises and we assuage our feelings of helplessness by throwing some money at the problem, particularly, around Christmas.  Don’t get me wrong, I am not at all adverse to helping people with a donation for a coffee or sandwich though I have heard people say “Oh they will just spend it on drink”.  So judgemental as if everyone homeless including the 3194 children were all drunks and drug addicts.  However, we cannot just sit on our hands wondering what we might do and then doing nothing really because it is all too big.  We cannot allow more people to die on the streets while our government sits idly by doing what seems to be way too little way too slowly and making inhumane comments like our problem is small compared to other countries.  When have we not seen ourselves as special?  We Irish might be idiotic in our self-regard but we have never seen ourselves as the same as everyone else.  We see ourselves as the most welcoming, the most-friendly, the best educated young population, the best place to raise children, the funniest, the most intelligent, the most literary, the most charitable and I could go on and on.  It must be because Leo Vradkar does not understand this about us that he made such an insensitive comment!  Yesterday, a Cork woman died on our streets who was 40 years old.  She was homeless and I do not know her story.  I do know that 40 is too young to die and the circumstances of her death might have been avoidable as they might have been for all the other people who have died on our streets in the last few years.  Since I heard this I am trying to find an angle for me to establish a foothold within this problem so that I can have a perspective on it which is not just about throwing money at the odd homeless person who crosses my path.
I work in the area of marital and relationship breakdown.  A large number of organisations working with homelessness, identify homelessness and family or relationship breakdown as connecting factors.  Few enough identify divorce/separation or breakdown as the only cause but as one of the contributing causes leading to homelessness. Post marital or relationship breakdown many people find themselves on the private rental market.    In Cork as in most other areas of the country the rental market is rapidly growing out of people’s financial reach and these are people who are working, let alone those who find themselves newly poor or those on welfare.  We can rant about greed and the lack of regulation of the private rental sector and we would probably be right on both counts but that does not solve the immediate difficulty for the person suddenly homeless.   Right now, it is true that the biggest increase in the homeless statistics are families as opposed to single adults with a rising number of children.  Of those families the majority are single parent led and of those the majority are led by women.  How did those women get into this situation?  Many by virtue of domestic violence.  At this time the powers that be do not count the women who are in refuges as homeless which has resulted in such women being discriminated against when it comes to housing. Abuse victims can find it hard to be put on the housing list and they can also have a difficulty showing they are homeless as they are sometimes joint owners of a home or renters of property.  That is something that we can rectify easily.  Family Lawyers can lobby to change this and to ensure that all national agencies involved with families compile statistics on domestic violence which will help us form realistic policies.  Traveller and migrant women face particular difficulties that place them in risk situations that can easily be identified and catered for once recognised as present.
There is little doubt that increased investment in social housing is vital but that takes time.  We also need provision of short term accommodation spaces to include provision for women only particularly women who have been subjected to domestic violence and rape.  We need a referendum which would put the right to housing in the Constitution thereby making sure that Governments cannot ignore this issue despite their term of office being only 4 years.
Research in Canada shows that post separation/divorce/breakdown 40% of women are in a worse economic situation than previously and are three times more likely to live in poverty.  Women leaving marriages often face challenges that are most common to them as women such as a broken career pattern, children living with them and their needs, care of elderly, unequal labour market particularly in the lower paid sector, refusal of landlords in Ireland to accept social welfare rental supplement and so on.  In addition, the trauma caused by relationship breakdown can bring on a mental crisis.
Settlements in marital breakdown or relationship breakdown do not have to virtually pro forma.   We can tailor them to your needs.  It is important that people understand that the family home does not have to be sold post separation or divorce.  There is no legal requirement to do so.  It is also not true that the wife gets to stay in the family home and the man must inevitably leave.  Courts will look at individual circumstances and needs which is why there are no hard and fast rules in the legislation governing these areas but Judges do have to be guided by case law (court hearings in higher courts) and what the family law statutes indicate the should take into account.  It is possible, however, to reach settlement agreements and happily there ae now a range of ways to achieve that.  Collaboration is one of them and it combines lawyers who have mediation skills, collaborative skills per se and lawyer skills in one package working in a team.  Mediation is another method which is a very adaptable style of working and can be reconfigured to suit individual family needs.  We also offer Managed Negotiation, lawyer assisted mediation and settlement talks as ways of coming to solutions without going to court.  A calm approach which takes advice at an early stage is key and keeps legal costs down.  The Legal Aid Board has many trained mediators and collaborators and people availing of their services should ask about them.  Private lawyers also offer this service but clearly at a cost, however, that cost is a lot less than going to court and the emotional cost is considerably less

Tuesday, November 28, 2017


We associate Christmas for the most part with families and most especially children. Being a parent in a recent divorce or separation can be particularly challenging at this time of the year. Children look forward to Christmas for months in advance and depriving them of this joy by making them dread this time of year is something no parent would want. 
It is particularly important to have the conversation about time over Christmas early. Early is not two weeks before, it is 3 months before. Unfortunately, many people leave it until December to talk about this and by then it is way too late. Arrangements have been made and if there is a profound disagreement, the courts will not entertain you at this point as their lists are already full. 
Too often the conversation about Christmas happens flush with Christmas when emotions are running high and it is difficult for that conversation to take place in an even handed way. If you have the conversation earlier when the days are not so cold and no Christmas decorations have appeared, it is an easier talk. 
How should you start the conversation? Before embarking on this, however, ask yourself – what kind of relationship do I have with my ex? Is it civil or do we fight at the drop of a hat, maybe we have not spoken in years and maybe all our communication is by text? Depending on the answer to these questions, you might, if the relationship is civil, for instance, ask him or her for coffee to discuss a child related matter. On the other hand, if you are ‘daggers drawn’ then such a conversation might not be feasible but perhaps a well-crafted letter might be considered or alternatively the assistance of some mediators or collaborators to help you both to work out an agreement. The benefit of using mediation or collaboration to assist with such a discussion is that it could lead to an overall improvement in your communication as parents which can only benefit your children. I am a mediator and a collaborative lawyer and I sometimes ask my clients to let me review their written communications before they send them, not so that I can change them, but so that I can, with an objective eye, remove anything likely to inflame rather than calm. I always say to my clients, whether they are writing a text or a letter, that they should not write anything they could not imagine a Judge reading or they would not want a Judge reading. 
If you are lucky enough to have a civil relationship with your ex or to be on speaking terms at least, then you might well want guidance on how to broach this conversation once you have got them to the cafĂ©. A mediation trick is to use what we call the commonality to open the subject.  Commonality is what we i.e. you and ex have in common and given the topic here, that is your children. So, you start each and every conversation with your children. Why would you do that?  People soften when they talk about their children and that will make the conversation flow better on both sides. Having talked about school, sports or recent achievements, it is a very good idea to emphasize what a good job you think the other parent has done with the children and that you know how much he or she loves them. It is then a good idea to say how much you love your children and try and get an explicit acknowledgement from the other parent that they know that is so. You may have to travel around the houses a bit in this conversation. Once you have that acknowledgement you might then say how much you miss your children and how much you would like to spend some time with them over Christmas. It is never helpful in this type of conversation to talk about rights. No matter how tempting, do not approach this from a rights perspective. The only rights that a Judge is likely to take seriously in this context, are the children’s rights. Women have no difficulty showing emotion generally, but many men do however, when men show emotion around their children and express themselves from their heart, it can be the breakthrough that is needed between parents at loggerheads. Now obviously if you and your ex are ‘daggers drawn’ or have not communicated in any form for a long time or only by text, then such a conversation might prove too difficult, so I suggest that you seek help early i.e. early September at the latest and see if mediation or collaboration might be an option. When you do reach agreement by whatever means whether you and your ex do it together or with the assistance of a mediator or collaborator, the agreement needs to be written up signed and witnessed. Collaborators will do this automatically since lawyers are involved in collaboration and generally speaking mediators will also send their clients to solicitors to draft the agreement. There is a danger, however, that if you sort things out yourselves that you might not write it up and that would be a mistake. 

While I say that September is the optimum time for this conversation, I would still encourage you to try and get something sorted even if you have not tended to it until now – at least try and use whatever assistance you can get by way of collaborators or mediators.  

Hurricane Harvey

 Reading the news in the last few days, I note that the reality for many people caught up in Hurricane Harvey is that they will never again be able to go back to their homes which will, it seems, have to be demolished.  Of course, there are far worse things that can happen but it is still pretty devastating.  When we hear about something like a flood, earthquake or a tornado and the destruction that follows natural disasters, we are brought face to face with the human price of such terrible events.  But people lose their homes as a normal part of life every day of the week.  Marital or relationship breakdown is a normal part of life.  Sometimes, the consequences of relationship breakdown can be avoidable with a little bit of forward thinking or as we, alternative dispute resolution practitioners (mediators, collaborators etc) like to say future planning.
One of the questions family lawyers get asked all the time is what will happen to our house or will our house have to be sold?  It is not inevitable that the house would have to be sold and it is not inevitable that it should go to one or other of the parties, leaving the other with nothing.  In fact, that latter scenario rarely happens these days in any situation.  However, with rents spiraling out of control and some marital or family houses still in negative equity, it can be a rough ride to figure out what to do when the relationship breaks down? 

Experienced family lawyers will discuss a menu of options with their respective clients.  Collaboration is one such option amongst several which works with you and your partner/spouse to calmly review all the options available and select what makes sense for the family as a whole. Everyone is part of the discussion at the same time and everyone is resolution focussed.  We call it the synergy of team and it can be transformative.  Difficult life decisions and hard choices are best handled sensitively with a dedicated team.   Don’t despair when presented with such a situation, take some time and get the right advice.