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Special Master Services

January 16, 2015 | Staff | Blog

What is a Special Master?

A Special Master is an expert appointed by the Court.  A Special Master has the legal authority to make prompt recommendations to parents and the Court in high conflict, crisis situations.  A Special Master may also monitor compliance with existing court orders, as well as make recommendations regarding new issues that arise.  Although a Special Master may initially attempt to reduce conflict by mediating the issues, clarifying methods of communication between parents, or by providing educational/legal input, a Special Master will make a formal recommendation when these mediation techniques do not bring closure in a timely manner. The goal of a Special Master’s involvement is conflict resolution instead of litigation. The process is based on flexible and informal data collection. A Special Master's role can be considered that of a "traffic cop" who has the authority to quickly intervene when the situation warrants immediate action.  If a parent does not like the recommendations made by a Special Master, that parent may file a formal objection with the Court under the same process used to object to the recommendations of a Court Commissioner.

How does a Special Master compare to a “Parent-Time Coordinator”?

A Parent-Time Coordinator is a Special Master with an extremely limited scope of authority.  A Parent-Time Coordinator only address issues related to the implementation of an existing Parent-Time Order.  A Parent-Time Coordinator does not address financial issues or make recommendations regarding new issues that may arise between the parents.

How does a Special Master compare with a “Custodian”?

A Custodian is another type of expert appointed by the Court to address financial issues between parents when one parent is a business owner or business professional in private practice, such as an accountant, doctor, attorney or engineer.  A Custodian is either appointed to operate the business in question or to oversee the operation of the business by the parent.  A Custodian usually has a particular set of financial skills such as an accounting degree, a finance degree or an economics degree.  It is especially helpful if the Custodian is also an attorney as well, as this can reduce the overall costs associated with the Custodian.

What is the overall focus of a Special Master?

The focus of a Special Master's involvement is as follows:

·  Reduce reliance on court system

·  Provide timely, cost effective conflict resolution

·  Reduce conflict between parents

·  Improve communication and problem‑solving skills between parents

·  Refocus parents on children's needs

·  Provide a stabilizing presence for families and children

·  Provide a channel of communication for children

·  Monitor of compliance with existing court order

What type of cases can benefit from the appointment of a Special Master?

Special Master are appointed by the Court in cases where there is a high degree of conflict between the parents or where there are a unique set of marital assets such as a business, professional practice or assets which are hard to value.

What are the overall benefits of using a Special Master?

Speedier Access: Instead of waiting for an opening on the Judge’s or Court Commissioner’s often over‑crowded calendar which may take six to eight weeks, the parents can call their Special Master as easily as they can reach any other professional. The Special Master can respond expeditiously.

Avoidance of Litigation: In addition to its costs, litigation is also tremendously draining emotionally for all concerned. With a Special Master in place, parents can quickly meet in a low‑key setting and feel as though their positions are thoroughly understood.

Relevant Expertise: A Special Master's domestic litigation experience and understanding of family dynamics is of great value for families in this sort of upheaval. Further, a Special Master usually has an appointment for a significant length of time (anywhere from a few months to two years) and thus, has the opportunity to really get to know the individuals involved and the history behind the important issues. Contrast this position with that of a Judge or Court Commissioner, who may have only 15 to 30 minutes to review dozens of pages of pleadings and exhibits and hear the arguments of legal counsel. (It should be noted that the limited term gives both the Special Master and the parents an opportunity to terminate the relationship gracefully; conversely if it is working well, it may be renewed.)

Lower Cost: Special Master costs are generally far less than that of an attorney and/or litigation, and the Special Master cost is generally  divided between the parents.  As an example, let’s say parents each have an attorney who charges $250 an hour. If they find themselves at odds, they will each pay $250 an hour plus filing fees (a total that can easily reach thousands of dollars) or they can meet with their Special Master and split the Special Master’s fee (which is generally $150 per hour).

Opportunity for Personal Growth: Parents may ultimately gain a more pragmatic perspective regarding the realities of being a post‑divorce parent. For instance, Mom may think the parties’ child should be in bed on school nights by 8 p.m. without exception, whereas Dad is more willing to be flexible and allow an occasional late night. After a few instances of bringing this issue to the Special Master's attention, and having the Special Master point out that the child’s grades and health have remained fine, Mom may more easily come to see value in Dad's more relaxed approach, and that in any case, Dad is entitled to parent as he chooses during his parent-time with the child as long as the child’s health and well‑being are not endangered. Mom may be more willing to be flexible. The Special Master will probably point out that post‑divorce parenting is not just another way to mutually parent; it is parallel parenting with two people acting as separate entities, where each is in charge of his or her own household.

How Important is experience in selecting a Special Master?

The experience of a Special Master is key.  By selecting a Special Master (or having a Special Master appointed by the Court over your objection) your assets and/or the lives of your children are placed in the hands of a third-party.   You do not want a Special Master, who does not have substantial domestic litigation experience, in charge of your children and the assets that have taken you a life time to accumulate.  If you are looking for a Special Master, ask each person you contact the following questions: How many years of experience do you have in domestic litigation?  How many cases have you taken to trial?  Have you worked with other professionals such as custody evaluators or mental health therapists? Do you have a college degree in accounting, finance or economics? Do you have other skills you can bring to the table if you are appointed by the Court as the Special Master?

How do I Obtain the Services of  a Special Master?

The services of a Special Master can be acquired in two ways:  First, the parents may sign a written stipulation under which the parents agree to the appointment of a Special Master by the Court.  Alternatively, one parent can file a Motion with the Court seeking the appointment of a Special Master.  If the second route is used, attorneys and their clients will have an opportunity to suggest their choices for Special Master, or at least to review the Special Master's qualifications and fees before the Court makes the appointment. The Court and the parents should be clear on what expertise the parents need, such as domestic litigation experience, mediation experience, arbitration experience, and/or other relevant skills for the particular case.

What is a Special Master Order?

In short, a Special Master Order spells out the authority of the Special Master and the time period (such as one year) over which the Special Master will perform his or her functions.  The parents and their attorneys should work with the Judge (or Court Commissioner) and the Special Master in crafting the Special Master Order. Ensure that the order includes appropriate details pertaining to: (a) the responsibilities and authority of the Special Master; (b) the hierarchy of decision making (Special Master vis‑a‑vis the Judge or Court Commissioner); (c) ground rules for communication (verbal and written) with the Special Master and the Special Master’s communication with the Court; (d) frequency and distribution of written reports; and (e) how disputes will be handled between the Special Master and the parents.

What is the Cost of a Special Master?

The Special Master will have his or her own separate contract with each of the parents, spelling out what is expected and what procedures will be followed for things such as after‑hours problems, etc. It is really, a very simple process. In Utah, the Special Master is also given limited quasi‑judicial immunity, since they are acting on behalf of the Court in those matters identified in the Special Master Order.  Most Special Masters ask for at least a $1,500 retainer, half paid by each parent. As fees are incurred, hourly charges per hour (billed at one-half against each parent’s individual retainer) are deducted. When the retainer is depleted, each parent is required to replace his or her share of the retainer. It is important to note that both parents are charged for any services, not only the parent who brought the issue to the Special Master's attention. This practice reinforces the idea that this is a joint endeavor and that the issues at hand is to be dealt with by both parents.

Dr. Terry R. Spencer, an experienced Special Master and domestic litigation attorney, contends that the first order of business is for the Special Master to develop a bond of trust between himself or herself and each of the parents. This is a task which is inhibited by the feeling of many parents that the Court system has not been responsive to their needs. Dr. Spencer recommends an individual, face‑to‑face meeting with each parent where the parent has the opportunity to express his or her feelings and where the Special Master can reiterate that all decisions made will be in the best interests of the children, not in the interests of the parents. The Special Master should stress that decisions will be made expeditiously.

How do I get started once the Special Master Order is in place?

The Special Master should meet separately with each parent as soon as possible, after the appointment by the Court, to determine positions and interests, as well as to solicit initial strategies to resolve the dispute. Parents should encourage their attorneys to be co‑spokespersons, rather than advocates speaking solely for them. Mediated approaches work best when negotiating directly with the parents, whether it be alone with the Special Master, among all the parents, and/or in public sessions.

How can I expect the Special Master to Solve Problems?

A Special Master will normally attempt to resolve problems between parents through a mediation type process. In this type of process, the Special Master will gather information from both parents and then determine if there is some middle ground which will meet the needs of both parents and/or their children.  This type of process tends to result in agreements which are followed by both parents because each had a hand in crafting the resolution.

If parents are unable to agree to a process predicated on interest based/mutual gains bargaining, then staunch and unrelenting advocacy on the part of counsel and the parents is often the result.  This requires the Special Master to make recommendations to the Court in the same vein as a Court Commissioner. Often one parent or the other is unhappy with the outcome and resists the enforcement of the recommendation.  This type of process can undermine the Special Master’s apparent authority (from the vantage point of one or both parents) and, in the short run, can make the communication between worse.

Both parents will experience a learning curve as they attempt to adjust to a new communication regiment.  Both parents will be required to learn to be flexible with each other or the “emotional beating will continue until morale improves.”

Example of how a Special Master may assist the parents

Let's say the parents are arguing about how to transport their child to and from parent-time visits with the non‑custodial parent. Discussions between them have only resulted in further arguments and increased tension, all of which cannot help but harm the children emotionally. If a Special Master had been assigned to the case and this issue was covered by the Special Master Order (which describes the scope of a Special Master’s authority), the parents would call the Special Master. Each would express his or her position orally or by email. The Special Master would then attempt to facilitate a compromise between the parents, such as a neutral pick-up and drop-off location. If an agreement can not be facilitated, the Special Master would then issue a written “recommendation” which becomes the Order of the Court.  This written recommendation would have the same force and effect as a recommendation by a Court Commissioner.  Like the recommendation of a Court Commissioner, either parent may file a written objection with the Court to the Special Master’s recommendation within ten business days of its issuance.

 

 

Things to Consider During a Divorce

Things to Consider During a Divorce

September 04, 2014 | Staff | Blog
Things to consider before hiring an Attorney
1. Your willingness to “Put it All Out There”;
2. Be Prepared to experience a higher level of stress;
3. Impact on Family and friends;
4. Impact on your employer.
 
Your willingness to “Put it All Out There.” is very important. If you as the client withhold information from your attorney, you may end up paying for it in the end. An attorney takes the information you provide, good and bad, and then formulates a strategy. If information is withheld, the strategy employed may be defective. When you hire an attorney a confidential relationship is created. Which means that the attorney will not disclose the information you tell him, unless it is necessary for your case or if he must in order to comply with state ethics rules. Therefore, you should tell your attorney the pros and the cons, so that he can best prepare your case. 
 
Divorce is a very stressful part of many marriages unfortunately. The process can bring out very strong feelings of resentment, animosity, and sometimes even hatred. Be prepared to ask questions, so that your attorney can help you manage your expectations. An attorney can answer questions that may be causing a lot of the stress you are feeling. The unknowns felt by most during divorce can easily be answered. Just ask!
 
Your divorce will have an impact on your entire family. You should expect that your divorce may not only end your relationship with your wife, but also may end many other relationships as a result. Be prepared for unexpected change as best you can. 
 
Your divorce may impact your employer. During the divorce process, the parties’ embark on the procedural process known as “Discovery.” Discovery requires that the parties disclose certain information initially without being asked. Later, more information may be sought that your employer may be required to provide. Through the tool of the subpoena, your employer may be required by law to provide your payroll information. Furthermore, the court may require that your retirement accounts be divided, which could impact your employer as well. 
 
TR Spencer & Associates, P.C. can help you with your divorce. Give us a call and mention this article: 801-566-1884. 

Parentage a.k.a. Custody General Information

May 19, 2014 | Staff | Blog
A parentage relationship is established when you are the parent of a child whether biological or by a Court (i.e., adoption).  You only have a parentage relationship when the relationship is legal.  In other words, if the child is a result of a non-consensual relationship (i.e., rape) then the one forcing the relationship will not generally have any legal rights to the child. 
 
Custody generally refers to the control over decisions made for the child and/or the place where the child lives, if the parents do not live in the same household.  However, both parents have equal custodial rights until a Court order exists which establishes custody. 
 
There are 2 different kinds of custody which may be shared in 3 main ways here in Utah.  The two types of custody are:
 
Legal custody which goes to who has the ability to make important decisions concerning the children, and
Physical custody which goes to where the children will live.
As mentioned, each of the two types of custody may be shared in 3 different ways.  This may be done differently for each type of custody:
 
Sole.  Legal and/or physical custody may be given to one parent alone (with rights of visitation to the other).
Joint.  In joint custody arrangements, both parents are involved.  For instance, with joint legal custody, both parents would have a right to make the important decisions regarding the children such as education, religion and non-emergency medical care. This type of arrangement will only work where the parties get along very well and may communicate with each other often.  Joint physical custody would entail moving the kids from one parent to the other for some amount of time as decided between the parties or the judge.  However, the children must spend more than 110 nights each year in each home to call the arrangement “joint”.
Split.  This situation involves more than one child and the children are split between the parents.  For example, one will live with the mother and one will live with the father.  This type of arrangement is advised only in rare circumstances, as it is rare that this would be in the children’s best interests.
 
Note, remember that an attorney will be able to answer the questions specific to your case. The information provided here is merely basic in nature and is no substitute for an actual attorney. If you have questions about your case, call TR Spencer & Associates, P.C. and speak with one of our experienced attorney's at: (801)-566-1884.