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I'd be interested to see if other lawyers differ, but I can't see how a sex change could have any effect on alimony.
(1) Alimony laws are gender-neutral.
(2) Grounds for ending alimony include death and remarriage, which many courts and some legislatures interpret to include cohabitation that is economically similar to married life. A sex change does not necessarily have anything to do with that.
A Utah divorce lawyer and legislator has sponsored legislation requiring divorcing couples with children, and allowing those without children, to attend "a divorce orientation class ... to help them understand the impacts of divorce, provide resources for strengthening their marriage, and resources to go through the divorce and deal with post-divorce issues with less pain, if they proceed." It also lets couples file for temporary separation instead of divorce. More information is on the Smart Marriages site.
I've now read through the Ethics Opinion, responding as I went. You can click on the link below for the full critique including quotes of key passages and my responses to them.
Basically, it approves of Collaborative Law so long as people who are having lawyers sign the Participation Agreements stop doing that, and change over to agreements signed only by the parties. In doing so, however, it makes many disturbing arguments that are dismissive of clients' autonomy, their key roles in their own cases, and their freedom of contract. And it very inaccurately portrays some aspects of what actually happens in collaborative cases.
Half of the Opinion is about another practice called "Cooperative Law," but that part actually has a lot of helpful advice about many of the distinctive things we do in Collaborative practice.
Continue reading "Critique of Colorado Ethics Opinion on Collaborative Law" »
Copies of the Colorado opinion have been circulating although I don't know of it being posted on the web yet.
One major concern in the opinion is the four-way contract that clients in most parts of the U.S. use to commit to the collaborative process -- does it create rights and duties directly between a client and her spouse's lawyer?
If that is the major stumbling block, then perhaps the Opinion's disapproval of collaborative law is not so absolute. In my cases I always try to have the collaboration agreement be signed only by the clients, with the lawyers signing a separate stipulation that is only about their disqualification from representing the clients in contested litigation. There are some of us in Virginia who follow this model -- I don't know if we're a majority within Virginia.
Although I don't think there's any substance to the concerns about the 4-way agreements, it seemed easier to steer clear of any implication, however far-fetched, that there were lawyer-client duties or liabilities between a lawyer and the other lawyer's client; or that there were any duties to the other party that were not consistent with the attorney-client relationship as defined in the collaborative retainer agreement nor with the lawyers' duties to other parties under the ethics rules.
More importantly, we do it this way because is is the clients' agreement, and the clients' decision, to collaborate. The lawyers' and clients' individual collaborative lawyer retainer agreements keep the lawyers from ever being involved in contested litigation between the parties, and the clients' agreement with each other guarantees that they are each hiring their own lawyer with that limitation.
One form of the attorney stipulation is at the end of the client-client contract. It just says,
"THE ATTORNEYS, WHO ARE NOT PARTIES TO THE CONTRACT ABOVE, HEREBY WITNESS IT, AND ACKNOWLEDGE THAT THEY ARE EACH IRREVOCABLY DISQUALIFIED FROM PARTICIPATING IN CONTESTED LITIGATION BETWEEN THESE PARTIES."
[signature lines and dates]
Another is not attached to the parties' contract at all, and is titled "COLLABORATIVE LAW STIPULATION".
This is a breaking story so my treatment of it will be preliminary. Reportedly, the Colorado Bar
Association Ethics committee has issued a formal opinion saying Collaborative Law --
which means both parties to a case making a binding agreement to hire lawyers only to negotiate and advise, not to litigate -- is per se unethical, and that a client cannot validly consent to the withdrawal of his/her
lawyer in the event the matter goes to court. (which is part of what all clients do in Collaborative Law).
There have been several other state-level legal ethics opinions around the country in recent years, all approving of Collaborative Law. This is the first one to disapprove.
Just to clarify, collaborative clients do not give up the right to litigate. They only give up the right to litigate with the particular lawyers they hired. And in return for that agreement, they get the same agreement from the other side, and a process with a whole lot more trust and openness on both sides than in most divorces or other legal cases.
In my opinion, if it actually does ban CL, this ruling violates clients' right to hire the counsel of their choosing, and their freedom of contract. It treats clients like children. In the long run, it cannot stand. Divorce is a dismal business for most divorce clients, and collaborative law is the single biggest thing that has come along to offer serious hope of making divorce less harmful.
I may have more collaborative things to say once I've actually read it.
Meanwhile, there will probably be much more information soon on Pauline Tesler's Collaborative Divorce Newsblog at http://collaborativedivorcenewsblog.blogspot.com/
Every real thought on every real subject knocks the wind out of somebody or other. As soon as his breath comes back, he very probably begins to expend it in hard words. These are the best evidence a man can have that he has said something it was time to say.
Oliver Wendell Holmes, Sr., M.D., in The Autocrat of the Breakfast Table
(This is the "Legal Quotation of the Quarter" from the Winter issue of the Virginia State Bar's Family Law News.)
