Legal Representation FAQs

Below we’ve listed brief discussions of several common questions dealing with legal representation which we hope you find helpful and informative. These postings are for general informational purposes and do not constitute legal advice.

Collaborative Divorce FAQs

In a collaborative divorce, the parties agree to not litigate, meaning go to court and have a judge decide their case. The parties and their collaboratively trained attorneys commit to work together in a conference room setting to negotiate and work in good faith to reach an agreement on all issues in the divorce. The lawyers may use other professionals, such as a financial or tax expert and/or a mental health specialist, called the “coach,” to advise the parties in the process.
The important difference between a collaborative divorce and conventional divorce is that in a collaborative divorce, the lawyers and parties are committed to working out the divorce details out without going to court. If a collaborative divorce does not end with an agreement, the lawyers are obligated to not continue to represent the clients in court. Many people don’t want to start over with a new attorney so they are more likely to work very diligently to compromise and to keep control over the case. That is very different from a conventional divorce where the lawyers can go to court with their clients and litigate.
The mediator is the neutral professional whose job it is to help the parties come to an agreement. The mediator is not to provide legal advice or counsel. Many people do not want to use attorneys in the mediation process and consequently they may not understand what they are signing. Even if one or both sides have his or her attorney with them in the mediation, the attorney may not necessarily feel compelled to work out an agreement. In a collaborative matter, having an attorney is required for each side. The collaborative attorneys are pledged to cooperate and keep the matter moving toward a settlement.
It really depends on the local practice for your area. In some states, the lawyers are agreeable to work together without a coach. However it’s the practice in Massachusetts and New Hampshire to use a coach, who basically oversees the process, as well as working closely with the couple to design a parenting schedule if there are kids involved.

Pre-nuptial Agreements FAQs

A pre-nuptial agreement, also called an ante-nuptial agreement, is a contract between two people who are planning to marry. One or both partners may have certain assets he or she would like to protect in the event that the marriage ends in divorce. While it’s a common notion that the person who wants the pre-nuptial agreement is already thinking about divorce before the wedding even happens, this type of agreement can be helpful when this is a second marriage for one or both sides. Many divorced people have children from a first marriage or a prior relationship and they want to protect their assets for the kids.
For a pre-nuptial agreement to be enforceable by a court, certain criteria need to be met. The agreement should be drafted well in advance of the actual wedding so as to avoid either side feeling pressured to sign on the eve of the wedding. Certain states may have specific laws about how far in advance is sufficient. Secondly and very importantly there must be full financial disclosure of all assets and debts of each party. Lastly while it’s not essential that each side have an attorney to represent him or her, one attorney cannot represent both sides. If one person opts not to have legal counsel it is customary for that to be written into the agreement.
While it’s possible to get any legal form on line, the issue is whether or not the agreement will be fully enforceable if it’s challenged in court. So while the up-front cost for an online form may be very reasonable, if it’s not upheld by the court due to some defect in its preparation or its failure to follow the law, a judge may rule that the agreement is not enforceable.

Post-nuptial Agreements FAQs

Similar to a pre-nuptial agreement, a post-nuptial agreement is made after the parties are legally married. These types of agreements follow the same guidelines as a pre-nuptial agreement: both parties must have full financial disclosure and neither party should feel pressured to sign the agreement.
There are circumstances when the couple may not even have considered entering into a pre-nuptial agreement before the marriage, but have second thoughts after the wedding. In other instances, the parties may start down the divorce path, decide to put the divorce on hold, and live separately. They agree to certain rules to determine what will happen financially during their separation or if they eventually are divorced. Occasionally a person comes into an inheritance or other windfall that she or he wants to preserve for his or her children. In those matters and many other circumstances, the parties can enter into a post-nuptial agreement to determine the division of assets upon a divorce and/or death of either party. While these types of agreements are recognized under Massachusetts and New Hampshire law, not all states accept them. So, it’s always best to check with a family law attorney before signing this kind of agreement.