Indiana Cooperative Divorce

I have taken “some ribbing” by other family lawyers because, a few years ago, I vowed to take on a cooperative approach in my family law practice. This change in philosophy came about several years ago after I attended an AFCC (Association of Family and Conciliation Courts) conference in Chicago. One of the breakout sessions entitled “Cooperative Lawyering” caught my attention. I attended that session, and soon thereafter, invited the presenters, attorney Sheldon Finman and Judge Hugh Starnes from Ft. Myers, Florida to teach a full-day seminar on Cooperative Lawyering in Hamilton County, Indiana.

My colleagues around Indianapolis, Carmel and Fishers Indiana believe that “playing nice” and agreeing to informal discovery is being cooperative, so no formal declaration via “Cooperation Track Orders” are necessary (see Agreement and Guidelines below). However, it is not just a philosophy, but a new way of practicing. Sheldon Finman and Gregg Herman describe the cooperative divorce model as follows:

The cooperative track requires the parties to understand and follow the Agreement to Proceed Under Alternate Cooperation Track which is signed by the parties and their attorneys and approved by the Court.  Under the cooperative track, the parties agree to work together to solve issues and perform informal discovery and disclosure of relevant information.  The parties and the attorneys agree to the following:

(1)       the attorneys must promptly communicate with each other on all issues arising in the case and may not file a motion for any relief without first speaking to the opposing counsel and attempting a resolution of the problem;

(2)       the attorneys will also discuss the need for any experts, such as mental health professionals, financial experts, vocational rehabilitationists and others.  If they agree that an expert is needed, they shall agree on one expert in the particular discipline and the expert shall be a neutral source for both parties.  The expert shall be able to communicate with both parties’ attorneys and the attorneys may also be able to communicate with the expert.  However, there should be no ex-parte communications between the attorney and an expert unless agreed or stipulated by the attorneys and the expert;

(3)       the attorneys will also discuss early mediation to resolve any and all issues and agree to attempt several mediation conferences, if needed, before requesting the case be set for trial or final hearing; and

(4)             legal counsel must also cooperate to gather and share information and comply with the rules related to discovery.

The parties further agree to:

Mental Health Professionals and home studies.         Any mental health professional expert engaged by the parties to prepare a custody or parenting time evaluation shall be skilled and experienced in shared parenting issues.  Should an evaluation be required, the parties shall choose one mental health professional person, who shall be court-appointed by a stipulation signed by the parties.  The mental health professional may, with the agreement of the parties, their lawyers and the professional, assist the parties by mediation of any of the issues; however, if the expert acts as a mediator or in the mediator role for the parties, the expert may not then testify at trial or hearing or perform a custody or parenting time evaluation.  The mental health professional doing an evaluation may not perform any other role, such as counselor or parenting coordinator, unless specifically consented to in writing by both the parties, the attorneys and the professional, waiving any potential conflict of interest resulting from the dual professional relationship.  Compensation for the expert shall be stated in the stipulation of the parties and order of appointment, which shall allocate the responsibility of the parties for payment.  Upon written stipulation, the expert may give testimony but may not testify to anything discussed in mediation.

Financial Expert.        Should both attorneys agree that a neutral financial expert should be involved, the parties and the lawyers shall stipulate and a court order shall be entered, appointing a qualified Certified Public Accountant or any other professional person agreed upon by the parties.  The particular scope and responsibility of the neutral financial expert can involve fact gathering, financial analysis and the preparation of work sheets setting forth assets, liabilities and incomes of the parties.  The neutral financial expert may, with the agreement of the parties, their lawyers and the professional, assist the parties by mediation of any of the issues; however, if the expert acts as a mediator or in the mediator role for the parties, the expert may not then testify at trial or hearing or perform an evaluation.  Compensation of the expert shall be stated in the stipulation and order of appointment which shall allocate the responsibility of the parties for payment.

Second Opinions.       Either party may request a second opinion after any court appointed expert has rendered his or her opinion.  In any case involving two experts giving opinions on the same issue, the parties must agree that the Court will require the experts to communicate with each other and attempt to determine any differences of opinion and whether or not those differences can be defined, if not resolved.

Case Management Conferences.        The attorneys may schedule case management conferences with the judge at any time to seek preliminary rulings upon any issue related to discovery or an expert about which the parties are in disagreement, as a means to enhance the possibility of a settlement, or to discuss any issue in the case.

Communication.         The attorneys shall not communicate with each other or anyone in the case intemperately or insultingly.  Attorneys shall communicate personally with each other by telephone or in person if a problem exists before filing a motion.  Talking to the other lawyer’s secretary, paralegal or other office staff may be deemed necessary based on the unavailability of either attorney.  The attorneys, appointed experts and the parties shall be courteous and respectful of everyone in the process.  Conferences with the attorneys and parties are encouraged, as are conferences with the attorneys, parties and other professionals engaged as experts.   Both parties and attorneys shall share documentary information in such a manner as to avoid duplication of work.  Both attorneys shall promptly return all phone calls and respond to correspondence from the other attorney and any experts.  When setting hearings, conferences or depositions, an attorney may not schedule any matter without first coordinating the date and time with the opposing counsel’s office.

Alternative Dispute Resolution.         Mediation or alternative dispute resolution is encouraged early in the proceedings and prior to setting the case for trial or final hearing.  Several mediation conferences should be held in all cases when required and in order to accomplish a result that both parties fully understand and with which they are both comfortable, without any coercion or need to accomplish a result due to the pressure of an upcoming hearing.

Litigation.       Litigation may take place on the “cooperation track”, but it must be conducted courteously and cooperatively.  The Courts recommend to all parties and attorneys engaged in family litigation to utilize all the “cooperation track” procedures, even if this track is not elected.  The Courts can sanction unprofessional and uncooperative behavior in any case, on either the “cooperation track” or “litigation track”, and will award attorney’s fees as allowed by law if either party or their counsel is found to have been unduly uncooperative, resulting in prolonged or needless litigation.

In my opinion, the most important benefit is the use of the judicial officer in a “case management conference” as described above.  This allows the attorneys to present to the judicial officer the issues involved in the dissolution in an informal and summary style.  The attorneys may advocate for their clients, yet manage the case in a cooperative fashion.