Collaborative Law in Divorce

It is becoming more common than ever for parties to a divorce action to attempt to resolve their dispute prior to filing any paperwork or stepping foot in a courthouse.

Often times parties to a divorce attempt to come to a resolution through the use of a mediator. A mediator is a neutral third party who helps the parties come to an agreement. The mediator does not represent either party, but instead works to guide the parties to a mutual agreement. Typically, clients do not have individual attorneys present at mediation sessions, but may consult with an independent attorney prior to signing off on any agreement.

A less common, but emerging, form of alternative dispute resolution is called Collaborative Law. Collaborative Law is similar to mediation in that the parties to a divorce action attempt to come to a resolution of all matters outside of court through the use of a specially trained lawyer who acts as a neutral third party; however, each party is typically represented by independent counsel, as well. The attorneys representing each spouse in a collaborative divorce agree from the outset to not participate in the litigation of a divorce if collaboration is unsuccessful.

In order to proceed with Collaborative Law, both parties must agree and retain collaboratively trained attorneys. Although each party has independent counsel, the costs of collaboration tend to be lower than the conventional litigated divorce.

Once an agreement is reached, the parties may then proceed with filing a Joint Petition for Divorce. A finalized agreement is submitted to the Court for approval in an uncontested hearing.

 

This blog post was written by Attorney Catherine Taylor and is not intended to be construed as legal advice and does not create an attorney-client relationship.

Padilla v. Kentucky: It’s impact on Criminal & Immigration Law

In 2010, the court held in Padilla v. Kentucky that counsel’s failure to advise a criminal defendant of the deportation consequences of a guilty plea constitutes ineffective assistance of counsel. Therefore if your defense attorney did not advise you of the immigration consequences of your plea, the disposition could be vacated. The problem is that the Supreme Court held that the new rule in Padilla should not apply retroactively to criminal convictions before March 2010.

The good news is that the Massachusetts Supreme Judicial Court didn’t like that, so in Commonwealth v. Clarke, the court held that Padilla v. Kentucky applies retroactively to guilty pleas entered after April 1, 1997. If Padilla applies to you, you still have to prove ineffective assistance of counsel.

There is a two prong test to whether there was an ineffective assistance of counsel. The first prong is found in Commonwealth v. Saferian and states “whether there has been serious incompetency, inefficiency, or inattention of counsel — behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer.”

The second prong is that the consequence of counsel’s serious incompetency must be prejudicial. In Clarke they define prejudice as “a ‘reasonable probability’ that ‘but for counsel’s unprofessional errors, the result of the proceeding would have been different.”

Therefore in order to prove ineffective assistance of counsel you have to prove that your lawyer didn’t act or advise you as a normal lawyer should AND that your criminal proceeding results would have been different if you had received proper advice.

Padilla was significant, because now non-citizens must be advised of immigration consequences if they are in criminal proceedings, but in order to get your case vacated it may still be a long road ahead!

If you have any questions about whether Padilla applies to your current situation, please call our office at 508-438-1198.

THIS POST WAS WRITTEN BY ATTORNEY JAMIE COSME. IT IS INTENDED FOR INFORMATIONAL PURPOSES ONLY. IT IS NOT LEGAL ADVICE.

#criminallaw #immigration #padilla #retroactive #clarke