A Nashville Law Firm

phone icon615.321.5659
divider

Archive



5 Benefits of Choosing Collaborative Law to Resolve Divorce

/ 0 Comments

When a marriage ends, anger and hurt is a natural response. No matter who’s to blame or what factors contributed to the divorce, it’s normal to lash out—but this is one situation where you should take a deep breath, take a step back from the situation, and think about what really matters to you. For many divorcing couples, a collaborative divorce is much more peaceful and respectful than a traditionally litigated divorce. Read on to learn how.

1. Maintains Decision-Making Power

When you and your spouse choose to collaborate, you decide to treat your divorce more like a business deal than a battle to be won. You and your spouse decide what give and take makes the most sense for the two of you. If you go through the litigation process and end up in trial, the judge decides how you’ll divide property, how parenting time will be split, and which financial obligations each party absorbs. When you choose to resolve things through the collaborative process, you and your spouse maintain control. Your collaborative lawyers will guide you to make sure your agreements meets the requirements of the law.

2. Lays the Groundwork for a Healthy Co-Parenting Relationship

Life goes on after divorce, and the hurtful decisions made in the heat of litigation can damage your co-parenting relationship for years. If you and your ex-partner have children together, you owe it to them to get along as much as possible. Setting aside your hurt feelings and deciding to work together during divorce can help you learn to work together as co-parents.

3. Minimizes Animosity

The focus of the traditional divorce process is the day of trial. Lawyers want to be prepared for the court battle, even if the vast majority of cases never reach that point. That usually means getting ready to make the other side look as bad as possible. That is a process with a great chance of permanently damaging the relationship between people who, no matter what, will be a part of each other’s lives until death do they part. Going to court is off the table in the collaborative process so the focus is on finding solutions that work best for both parties. The level of animosity and future stress declines when both parties are treated with dignity and respect.

4. Protects Your Privacy

If privacy is a top concern for you, collaborative divorce is a good choice. Business people, professional athletes, entertainers, other with high profiles, and just ordinary couples who value their privacy have chosen the collaborative route to keep their private business out of the public spotlight. In a collaborative case, the only documents in the public file are the bare minimum required by law, a divorce request on no-fault grounds, routine notices, and the divorce agreement made by the parties.

5. Can Reduce Expenses

Perhaps one of the main benefits of a collaborative divorce is the fact that it is efficient and because of that is often much less expensive than lengthy litigation. When a divorce case moves toward trial, pretrial motions, lengthy written discovery, document production, and depositions coupled with lots of back and forth between layers can draw out the case and add thousands to your legal bill. In a collaborative case, the parties often together hire a neutral financial expert to gather all the essential information needed to help them and their attorneys make decisions about dividing their assets and liabilities. Both parties are expected by court rule to make “full, candid, and informal disclosure of information without formal discovery” That information is put together for both parties by the financial neutral rather than two teams of lawyers and paralegals in separate offices. It saves lots of time and money in that way.

Divorce is never easy, but the right legal support can make it as stress-free as possible. If you’re ready to explore your options, call Irwin Kuhn of Venick, Kuhn, Byassee, Austin & Rosen, PLLC and set up a consultation. We’ll help you compare your options and prepare you for a smooth transition to your post-divorce life.

Read More
separator

Understanding the Difference Between Conservatorships and Guardianships

/ 0 Comments

Tennessee law strives to provide for vulnerable individuals through conservatorships and guardianships. In a conservatorship or guardianship agreement, the court takes away some of the individual’s rights and awards them to a capable conservator or guardian. Depending on the individual’s age and needs, the court may award control of finances, healthcare decisions, living arrangements, and daily care decisions. Although these care arrangements are similar, there are significant differences between guardianships and conservatorships.

Age of the Individual

The primary difference between a guardianship and conservatorship is the age of the individual protected. Guardianships are used for individuals under the age of 18. Conservatorships serve adults who the courts have determined to need assistance in life choices or health or finances.

Who Can File?

The process for initiating the process is the same for guardianships and conservatorships. Anyone who knows the circumstances of the individual can file a petition asking the court to assign a guardian or conservator. Family members are preferred. Paperwork must be filed in the county where the individual in need of care lives. 

Assessment

Once the process has started, the court goes through slightly different assessment processes for guardianships and conservatorships. If someone has requested a conservatorship, the ward must be medically evaluated by a physician or mental care practitioner, depending on the circumstances leading to the request for a conservator. In both cases, the court looks at the facts presented in the petition and may appoint a temporary guardian ad litem to act in the individual’s best interests.

Assigning a Guardian or Conservator

In both cases, a hearing will take place to determine whether or not the person in question needs a guardian or conservator. In a conservatorship case, the court determines whether or not the individual is considered disabled and if a conservatorship will protect the person’s health and assets.

If the court decides that a guardianship or conservatorship is necessary, they will appoint a responsible person or agency to act in that role. In a conservatorship case, preference is given to a person named by the individual, the individual’s spouse, or the person’s child. In a guardianship, preference is often given to one or both parents, someone designated by the parents, or adult siblings of the child.

Termination of the Guardianship or Conservatorship

In many cases, conservatorships last for the duration of the ward’s life. If the ward has a temporary disability, the conservatorship may be terminated once a medical exam indicates that the individual is capable of making their own decisions. A guardianship terminates when the child turns 18 years old. If the child is disabled, the guardian may request to become a conservator.

If someone you love needs a conservatorship, working with a lawyer can help you preserve the individual’s rights and get a conservator who can act in the ward’s best interests. Reach out to our team today to schedule a time to discuss your legal needs.

Read More
separator

Irwin Kuhn CLE for Lawyers on Prenuptial and Postnuptial Agreements

/ 0 Comments

Irwin Kuhn, along with Michael Sontag, a partner in the Nashville office of Bass Berry & Sims, presented a continuing legal education program on prenuptial and postnuptial agreements for the Nashville Bar Association on Valentines Day 2019. The title of the CLE was Prenuptials and Postnuptials, They’re Like a Box of Chocolates; You Never Know What You’re Going to Get. The presentation focused on current case  law and best practices in crafting pre and postnuptial agreements in Tennessee.

Read More
separator

Meet the Mediator

/ 0 Comments

VKBAR’s Irwin Kuhn recently was selected as Mediator of the Month by the Tennessee Association of Professional Mediators (TAPM). This interview was featured in TAPM’s newsletter:

irwin-kuhn-featured-mediator-venick-kuhn-byassee-austin-rosen-nashvilleIrwin Kuhn is a member of Venick Kuhn &  Byassee, Austin and Rosen, PLLC where he practices and mediates primarily in the area of family law. He was first certified as a Tennessee Supreme Court Rule 31 mediator in January of 1998 in general civil cases. In 1999, he received additional certification in family law cases. Irwin is First Vice President of the Nashville Bar Associate, immediate past President of the Middle Tennessee Collaborative Alliance, a Founding Member of the Tennessee Association of Professional Mediators, and a Fellow of the Nashville Bar Association.

In finding your niche what area do you practice in?  How did you get started in this?

I am a family lawyer and that is the area in which I mediate. Divorce and family legal issues are among the most stressful life events a person can go through. When I mediate a family law matter or represent a client in a family law matter, I always try to keep in mind how difficult this time is in their life. I am probably not seeing them at their best, but I can help make the situation better for them, and that gives me a great deal of satisfaction.

 

What is in your mediator tool kit?  What is your favorite or most used tool?

You always have to use the tool that is right for the case you are mediating. Flexibility is important. For example, I know I cannot always do it, but sometimes we forget the efficiency and benefit of letting the parties meet face to face. For example, if you know the mother and father are close to agreement on a parenting plan, let them work out the details together. It builds momentum, creates some trust and good will, and lets the attorneys see the other side as a human rather than the enemy.

 

Once you have been selected as the mediator, what do you do to prepare the attorneys and their clients for the mediation?

I usually send a letter to the attorneys confirming time and place for the mediation and send a copy of the mediation agreement I ask their clients to sign. Mediation statements from attorneys are always helpful, but I respect that attorneys cannot always devote the time needed to give as much detail as possible.

Phone calls with attorneys can be extremely helpful. It is a time before mediation when attorneys feel more freedom to be candid about the case than in a writing their client will be reading.

What is your pet peeve in mediation?

I suspect every mediator’s pet peeve is attorneys who get in the way of their client agreeing to a deal that works for them and the other side because they think they might get more in court.

 

Are you married/do you have kids/pets etc?

My wife, Diane, and I met in law school. She is at Baker Donelson. She has this great ability to help me see complex situation more clearly and that is an immense help in my practice. We have three great, interesting children, who are good friends, and good people. Our sheepdog/wolfhound mix, Maggie, keeps us smiling.  

 

Why did you become a mediator?

I became a mediator because I think people need to avoid the financial and emotional costs of litigation. I am a good listener and I enjoy helping people work through tough problems.

 

What is your favorite mediation read and why?

Challenging Conflict: Mediation Through Understanding. By Gary Freidman and Jack Himmelstein. It is about discovering what is really important to people. They write not just about helping people state their goals but getting a deeper understanding of why their goals are what they are. That understanding is essential, and an often-overlooked part of interest based negotiation, and perhaps the most important impasse breaking tool.

 

What are you most afraid of in mediation?

I am always on guard to not lose my neutrality, or my patience.

 

How do you debrief yourself after a mediation?

Pinot noir in the winter, white burgundy in the summer. Seriously, while I am in the shower the next morning.

 

Personal or professional accomplishments you are particularly proud of:

I am most proud of my role in helping to introduce collaborative family law to Nashville.

 

“If I could have a 30-minute conversation with anyone (alive or otherwise, famous or not), I would want to speak with _____________________________.”

If I am picking one person, I would say my father. He died young, after my first year in law school, when I was young. I truly miss having not known him as an adult.

 

What do you see for the future of mediation?

In my area of family law, and maybe other areas, I think we will see much more integration of non-legal neutrals into the mediation process as co-mediators, particularly financial neutrals. In the area of collaborative family law, we typically use financial neutrals, and mental health professionals, as neutral facilitators, with great success. As more couples begin to view divorce as transactional rather than as litigation, the role of attorneys may well become more secondary. For my lawyer colleagues, do not worry, the law as frame work will always remain vital.

Knowing what you now know about life etc., would you choose the same career path?  If not, what would you like to do?

What I know about life is that you do not get to do it over. I like what I do.

Read More
separator

The Cost of Divorce

/ 0 Comments

A very wealthy Dallas couple decided on the collaborative approach to divorce after they spent $7.4 million in litigation. The litigation attorney called it a marathon case. The collaborative attorney suggested it should have been a 5K. Here is the story from D Magazine September 2012.

Read More
separator

Collaborative Divorce: A Case Study

/ 0 Comments

DVKB Family Lawyer Irwin Kuhn and Nashville attorney Marlene Moses wrote this article outlining the steps of a hypothetical collaborative divorce. Collaborative divorce problem solving settlement approach to divorce. The article was originally published in the Nashville Bar Journal.

Download Article

Read More
separator

Family Business and Divorce

/ 0 Comments

Kevin Fuller, a top Texas divorce lawyer, discusses why collaborative divorce makes sense for people trying to preserve family businesses. Among the reasons:

  • Negotiations are conducted in a private arena.
  • Legal fees are used more efficiently.
  • Settlement discussions can be scheduled to fit business needs rather than the court’s calendar.
  • The collaborative process is less disruptive for the business’ staff.
  • Results are often quicker.

Kevin’s full article is here: http://www.koonsfuller.com/dividing-the-family-business-without-destroying-it

Irwin Kuhn and Dot Dobbins are divorce and family lawyers who practice collaboratively at Dobbins Venick Kuhn & Byassee, PLLC.

Read More
separator

Frist Collaborative Divorce: Irwin Kuhn’s Tennessean Comment

/ 0 Comments

Irwin Kuhn recently authored an article in the Nashville Tennessean concerning the divorce of former Senator Bill Frist and his wife Karyn. The Frist chose the collaborative divorce approach. Irwin Kuhn is a collaborative divorce lawyer in Nashville and commented on that choice.

Frists Work to Make Divorce Less Painful

 Sep 18, 2012 Nashville Tennesseanpage1image4064

Irwin J. Kuhn

Former Sen. Bill Frist and his wife, Karyn, recently announced their divorce. It appears they did something very difficult, very well.

The Frist divorce is notable in a number of ways that will benefit the senator and the soon-to-be former Mrs. Frist greatly in future. It was about as private as can be. There is a minimum of public filings. Mrs. Frist submitted a bare-bones petition asking for Tennessee’s version of no-fault divorce. It was dignified. Sen. Frist simultaneously answered, admitting with sadness that their differences are beyond repair.

One prominent feature is probably unnoticed by most. Sen. Frist announced that he and his wife reached a divorce agreement “through a collaborative law process.” Collaborative divorce is the

newest alternative to a painful, long, expensive and public divorce.

How people get divorced makes a difference. Some may accept aggressive tactics as routine. But they only make a difficult situation worse. For example, elevated levels of discord during divorce significantly increase the chances children will come out of divorce with anxiety and depression.

When parties choose to proceed collaboratively, they decide from the beginning that they want something better, a negotiated settlement. So much so that they enter an agreement that the lawyers they hire will not go to court with them if they cannot come to terms. A premium is put on reaching consensus. For the lawyers, the mark of success is reaching a working, negotiated lasting settlement.

In a collaborative session, the parties meet face to face. It can be hard work. Often a neutral third party, trained to keep difficult discussions under control, meets with the couple and their lawyers in an effort to identify goals. Later, the parties propose and discuss options. Neutral financial advisers are often key members of the team.

Working with such a team may sound like an expensive process fit only for the wealthy. Seasoned collaborative attorneys disagree. Kevin Fuller, a top Dallas matrimonial lawyer, says he had 56 collaborative cases in a three-year period. Concurrently, he had three cases he described as “go-get-’ems.” He calculated that the fees from the three go-get-’ems exceeded the fees in all 56 collaborative cases combined. Collaborative efficiency is the key.

Collaborative divorce is new to Nashville. The Middle Tennessee Collaborative Alliance (www.mtcollab.com), of which I am vice president, has a number of collaboratively trained lawyers, mental health professionals and financial consultants. Each is committed to high standards. Others hold themselves out as collaborative, but the distinguishing characteristic of a real collaborative divorce is the agreement to not go to court.

Bill and Karyn Frist may have untied the knot. But they will always be connected through their children and grandchildren and common loved ones. The way they chose to divorce will give them a much better chance of putting aside their differences, perhaps long enough one day to dance together at a child’s wedding.

Irwin J. Kuhn, an attorney and mediator, is a member of Dobbins Venick Kuhn & Byassee PLLC. 

 

Read More
separator

Nashville Bar Journal Article on Collaborative Divorce

/ 0 Comments

(Originally published by The Nashville Bar Journal, December 2011-January 2012)

The stage for a workable post marriage relationship between two people whose lives will always connected through children or family or friends is not set well by a divorce complaint dramatically setting out the gory details of one party’s “inappropriate marital conduct” followed by interrogatories requiring each side to commit to writing “with specificity” all complaints they have about the other and to list “with specificity” all acts of misconduct, and to “identify each witness thereto”. But this is often how the divorce process begins. And, then there is “Have you had any intimate physical contact, including …” Come let us reason together?

As have many celebrities and high profile business executives and politicians, the comedian Robin Williams and his Marsha chose an alternative path to a traditionally litigated divorce, collaborative divorce. Said Williams, “I’m lucky, you know, with someone like Marsha, we have amazing kids and it’s not a slash and burn. But the idea that it’s going with love, I think, is important. And for me it’s been… a good thing.”

The collaborative path to divorce is being chosen nationally and now in Tennessee, not only by people with high profiles concerned about personal privacy. Those who chose collaborative divorce do so to preserve civil relationship with someone they once loved and may well have to continue working with in the future as parents. For some there is little hope or need for a future relationship but they want to end their marriage without the added stress of litigation.

FACING THE STRESS

Divorce and separation are the most stressful life events for American adults trailing only the death of a child or spouse. For children, elevated levels of discord during divorce increase the chances of psychological problems such as depression, anxiety, aggression and other disorders. In the worst cases, where one parent in the process alienates their children from the other parent, studies show that when those children become adults 70% suffer depression, 35% battle chemical dependency, and are frequently estranged from their own children.

Traditional litigation based divorce cannot be blamed for problems that may have their genesis well before the divorce process began. But, tales of the divorce process making a bad situation worse are familiar. Too often aggressive tactics designed to present parties in their worst light to gain a larger share of the pie and battles over children create lasting fissures.

COLLABORATIVE FAMILY LAW IS …

Collaborative family law is the newest tool in the alternative dispute resolution toolbox. Collaborative traces its roots to Minnesota in the 1980s. But, it began to take off in the first years of the new millennium. The International Academy of Collaborative Professionals (IACP), the ABA of the collaborative world, had just 200 members in 2001. Last year it topped 4000.

North Carolina attorneys led the first collaborative training held at Vanderbilt Law School in Tennessee in the summer of 2009. Additional training was offered in 2010 and again last September.

The Middle Tennessee Collaborative Alliance (MTCA) was formed by a group of lawyers, mental health professionals, and financial planners interested in a divorce process more likely to preserve relationships.

The collaborative process begins when husband and wife hire lawyers who enter into a participation agreement with them and each other that they will work to help the clients reach a negotiated settlement. They will not go to court with them except to file a complaint on the grounds of irreconcilable differences, and then to have the judge enter a final decree.

COLLABORATIVE IS NOT …

The agreement to not go to court with clients is the essence of the collaborative process. If the attorneys do not make such a commitment, it is not a collaborative case.

The agreement to forego court puts a premium on settlement for clients who will have to spend more money and more time if they must hire litigation counsel. The collaborative divorce attorney is transformed from litigator to transactional lawyer. The measure of success is reaching a negotiated settlement that endures the test of time. There is no financial or other incentive to let a court decide the outcome of a case.

GOALS V. POSITIONS

The emphasis on a negotiated settlement encourages clients to pursue their goals and interests rather than their positions.

Dad may demand “50-50” parenting time, or “joint custody”. Mom may insist on “standard parenting time.” Those are positions.

In collaborative negotiations, the focus is on the “why” behind the position. Dad needs to know he will have an important, active role in his children’s lives. Mom is concerned about the amount of time the kids will spend with caregivers in the 50-50 model since Dad works long hours as a busy professional. Creating a parenting plan that addresses those needs and concerns is possible without excluding any. The result is a win-win for Mom and Dad, and a win for the children.

DISCOVERY

Discovery? Of course there is, but form interrogatories and requests for production focusing on past defalcations are jettisoned. The parties from the start make a commitment to what the MTCA calls in its participation agreement “full and honest disclosure of all information pertinent to the resolution of [the] case.” This is hardly a radical idea. Judge Philip Smith, who handles the bulk of Nashville’s family law cases, states in his chamber rules, “[i]nformal discovery will save the parties significant cost in attorney fees and may result in less adversarial attitudes toward one another rendering settlement more achievable.”

Will clients be forthcoming? Experienced attorneys have a practiced ability to tell not only if their own client is withholding information but also whether the other side is providing what they should. The collaborative agreement instructs the attorney to withdraw rather than allow a client to act in bad faith.

USE OF OTHER PROFESSIONALS

Collaborative practice is also a major change from traditional family practice in the way other professionals are used. Rather than hire battling experts, such as financial planners and child specialists, parties look to neutral authorities trained in the collaborative process who work by agreement that they will never be called on to testify in court for one side or the other. They also agree they will not represent either party following the divorce.

Since it is usual in collaborative practice for the parties to meet together, with counsel, to identify goals and negotiate settlement, the possibility for highly charged emotions is distinct. It is not uncommon for parties to bring in a neutral to help control the discussion. These neutrals, called coaches , usually have expertise in mental health and relationships. Their role is not to provide counseling, but to use their training to keep difficult conversations civil and focused on goals. Attorneys find that skilled coaches help them understand the subtextual or unspoken goals of parties in a way that profoundly helps them develop settlement options.

The use of coaches varies from jurisdiction to jurisdiction. In some, it is common to use two coaches, one for each party. In others, a single coach facilitates discussion in a manner similar to a mediator in other cases. In still other jurisdictions, coaches are rarely involved.
MEDIATION V. COLLABORATIVE

As effective as mediation is in many cases, too often conciliation efforts come after damage has been done. Many lawyers refuse to go to mediation with clients until completion of discovery that is often meaningless, frequently burdensome, and usually expensive. As well, parties learn little about working together when, as is the common but anomalistic practice in Nashville, parties are separated from the beginning of mediation until the end.

COST

Naturally, the question of expense arises. Multiple meetings with both lawyer; add in mental health professionals, financial experts, and child specialists. It certainly sounds expensive and the perception that collaborative is only for the wealthy persists. But, seasoned collaborative lawyers disagree.

Kevin Fuller addressed the issue. Fuller is a Dallas, Texas, matrimonial lawyer listed in Best Lawyers in America, Top 100 Lawyers in Texas, and chair of the Texas Bar’s collaborative section. Since 2007, Fuller says he has done 56 collaborative cases and three he describes as “go-get-‘em” cases. He calculated that the fees from the three “go-get-‘em” cases exceed the fees in all 56 collaborative cases. So much for the expense fear.

Why were Fuller’s collaborative fees lower despite the meetings and the experts? Paying counsel to propound and answer discovery requests and then spend time in court over the sufficiency of such responses and for other motions is no bargain. Oh yes, and, then one might toss in a motion to have a psychological exam to determine just how crazy their spouse was for being married to them all this time.

On the other hand, collaborative protocols are designed to make meetings efficient and the goal of all is to achieve settlement. Put another way, the cost of war is usually more than the cost of diplomacy.

CONCLUSION

One colleague when first presented with the term “collaborative divorce” joked that it was an oxymoron. Is it pie in the sky? In the late 90‘s when mediation was new in this area, the common refrain was that if couples could mediate their differences they would not be getting divorced. Now, mediation is required by statute in most case involving children or before a case goes to trial.

Certainly collaborative methods of marital transition and post-divorce dispute resolution emphasizing clients working together to craft their own agreements are far less likely to promote alienation, distrust, and bitterness through traditional litigation and more likely to be durable and workable. Privacy is protected. Business disruption is minimized. Collaborative divorce is the next phase.

 

Read More
separator

Mediation Helps Children Maintain Better Relationships With Both Parents

/ 0 Comments

A comparision of outcomes of mediations and going to court was the subject of a 12 year study by Dr. Robert Emery, director of the University of Virginia’s Center for Children, Families, and the Law. Here is a link to a summary of his findings: http://emeryondivorce.com/divorce_mediation_study.php. Dr. Emery found that in the group that mediated, the non-primary residential parent was more likely to spend more time with their children and have more frequent contact, in the long run. The primary residential parents graded the other parent as better parents than did the non-mediating group.

Read More
separator


separator