Divorce is a painful process. Often both spouses are disappointed with the marriage. One or both may feel betrayed. The time when spouses decide to divorce is the time when they likely feel at their lowest – about one another and perhaps about themselves. And yet, this is the time spouses are called upon to make decisions that will affect them and their children for the rest of their lives.
A natural instinct in this circumstance is for self-preservation. One thinks of oneself and one’s own needs – something by the way which is vitally important to do. You want to continue parenting your children effectively, be able to live the lifestyle you became accustomed to, and have long term financial security. It is common at such a time to fear that if your spouse’s needs are met, your own needs suffer. And so one fights – fight in hopes that this in turn will enable one’s own needs to be met and prevail.
But this is where one can go wrong. Listening to your spouse, really listening and simply acknowledging his or her needs is powerful. Recall the last time you felt heard, and how that affected you. By hearing your spouse, you increase the opportunity for your spouse to hear you. Solutions to issues emerge in such an environment which could not surface when one is in fighting mode.
Do not sacrifice your goals and interests. Instead, clearly and deeply identify them, and at the same time listen deeply to those expressed by your spouse. You will open doors to solutions that were previously closed.
The Collaborative Law process fosters such an approach for divorcing spouses. I encourage you to consider learning more about the Collaborative process if you are contemplating divorce.
Now that Minnesota has passed the Same-Sex Marriage Bill, there is much to figure out with regard to how laws will apply to same-sex couples and how laws will need to be amended to include same-sex couples. Now that same-sex couples can marry, they will also be subject to the laws for dissolving the marriage. The costs to the couples for going through the process might change because there will be a legal structure in place that now answers questions about division of assets and liabilities, as well as custody and parenting issue. As noted in the article in CNN Money about the cost of same-sex divorce, the cost for a “divorce” in states that have not recognized same-sex marriage has proven to be higher than states where same-sex marriage is recognized.
The article notes that, “For an out-of-court settlement in states where same-sex marriage isn’t recognized, a same-sex divorce typically costs around $20,000, versus $10,000 for an opposite-sex couple, said Randall Kessler, a partner at Kessler & Solomiany Family Law Attorneys in Atlanta.” When children are involved, it further states that, “Same-sex couples who negotiate property division on their own but bring the custody issue to court are usually looking at $40,000, compared to $20,000 for opposite-sex couples, Kessler said. And a long, drawn-out court battle over custody could lead costs to jump to $100,000 or more for a same-sex couple, twice what it costs for an opposite-sex couple.”
In my Collaborative practice, I have previously worked with same-sex couples dissolving their relationship with children. We did have to navigate the legal system with some creativity to address the issues of property division and parenting issues because they did not fit into the opposite-sex dissolution system. But the Collaborative process allowed them to be treated as a family system and reach a settlement that worked for everyone involved and it was less expensive than if it had been done through traditional legal system. Now that we have legalized same-sex marriage in Minnesota, we will have a system in place that will provide answers to the legal questions that arise in same-sex divorce. And the Collaborative Process will continue to be a responsive process to help manage costs, keep the decision making power within the family, and enable healthy transitions.
Compromise is a necessary part of life. Differences inevitably arise in our personal and work lives. Resolution of these differences generally takes place through negotiation. The goal of negotiation is to reach an understanding, which means compromise.
Is Calvin right? How would you describe a good compromise? Does it leave everybody mad? Is a compromise that leaves anybody mad really a good one? I don’t thinks so.
Generally speaking, there are two recognized methods of negotiation:
Is Calvin right? How would you describe a good compromise? Does it leave everybody mad? Is a compromise that leaves anybody mad really a good one? I don’t thinks so.
Generally speaking, there are two recognized methods of negotiation:
- Distributive bargaining, also known as “win-lose,” “zero-sum,” and “divide-the-pie” negotiation, assumes that resources are fixed and that future relationship between the parties is unimportant. Everyday examples include buying a house or car.
- Integrative bargaining, also known as “win-win,” “interest-based,” and “expand-the-pie” negotiation, can lead to better outcomes when issues are complex and the parties value their future relationship.
There is such a thing as a Do-It-Yourself Divorce. Not that I recommend it, but it’s out there. As an attorney who focuses on Family Law, Mediation and Collaborative Practice, I discourage this route to end a marriage, mainly because of details that can be missed. My definition of a Do-It-Yourself divorce is one in which you and your spouse are handling the entire legal process without any attorney help. This includes gathering information, making decisions, and completing the legal paperwork and processing that paperwork with the court. This is not something you should be doing without help!
Perhaps surprisingly, there are many people who do indeed choose this path: to divorce without the help of an attorney. Especially for those with no children and little to no assets or debts, and likely a shorter marriage, it’s not uncommon. There are free forms available on the Minnesota Supreme Court website that can be printed and used. However, in the following circumstances, clearly an attorney would be helpful: if you have children; significant assets or debts; if you own a house and/or land; if you have been married for many years; if one spouse earns a lot more money than the other.
So, after you determine it is a good idea to procure an attorney to ensure the specifics of your divorce, what next? Are you looking for a courtroom battle? No, of course not. Then why not consider a Collaborative Divorce?
What is a Collaborative Practice divorce, anyway? The most basic definition requires that both spouses have attorneys and everyone signs an agreement not to go to court. The idea is to settle the matter without ever setting foot in a courthouse. Even in a Collaborative Practice divorce the paperwork would be filed at the courthouse, but the attorneys and the clients would never need to have a hearing or even go to the courthouse. The paperwork would just be filed by mail.
Collaborative Practice divorce is an out-of-court settlement process where the attorneys are hired to settle the case and not to go to court and where other neutral professionals often help on the case to provide neutral meeting facilitation, child-focused input or special financial expertise.
Collaborative Practice means more than just the technical completion of the divorce process. It means a commitment to settling the case out of court. It means using neutral experts help educate clients about the unique emotional, child-related and financial circumstances of their particular case and to explore potential settlement options.
For Collaborative Practice professionals, being a member of the Collaborative Law Institute of Minnesota means regularly participating in additional training above and beyond their underlying professional continuing educational requirements. We do this in order to focus specifically on the client experience and out-of-court negotiation and settlement.
As with most things, of course, you get what you pay for. While a do-it-yourself divorce is possible, if instead you are looking for a cost-effective, quality process, take a look at Collaborative Practice divorce. You will be rewarded with a high-quality method that includes professionals that take extra care and training to learn ways to resolve cases outside of court and neutral professionals that will help educate you about your specific circumstances and help you explore your options, all while agreeing not to set foot in a courtroom.
How do you say good-bye to someone who is still there? A person who has been an integral part of your daily life, shared your adventures and your routine is now gone… and not gone.
Last week I attended a conference by Pauline Boss on Ambiguous Loss. She reminded me that divorce is an example of loss that is indefinite and messy. Signing the final decree ends the divorce process and defines your new legal status. You are divorced now but the person is still there; at events, through friends, extended family, work connections, and/or, of course, children.
We don’t like ambiguity. We prefer control and certainty. We seek a beginning and an end. We crave closure.
In the divorce process it is helpful to find the certainties where possible, and thank goodness there are some. People move into separate homes, disentangle finances, start to plan their own schedules and make independent decisions.
I think it is more difficult to prepare for the many uncertainties; how will you communicate, when will you see each other – intentionally or unintentionally, how do you cope with feeling relieved one minute and anxious the next? It is essential to take time and make space for the emotional challenge of saying a complicated good-bye to someone who is still there.
Remember, in reality we handle ambiguity every day, we just don’t think about it; traffic, weather, other people’s reactions, unexpected phone calls. We survive this by processing what we can and can’t control. When life feels too uncertain do something concrete, something you can control; read a book, do a puzzle, clean the kitchen, talk to a friend.
In the difficult process of divorce recognize that this good-bye is conditional and complicated. Allow time to grieve, to feel confused, and to adjust. Look for opportunities to set personal goals, celebrate independence, affirm inner strengths, spend time with people who are supportive, do things you enjoy and, above all, take good care of yourself.
Almost every potential client I meet with wants to minimize the negative effects of divorce on the children. So many couples want to consciously have a healthy co-parenting relationship. And as parents, we know our kids better than anyone and should be able to make decisions about what our children need.
Over my years of practicing family law, I have also learned that children benefit from having a voice in the process and an opportunity to feel heard. And they need a safe place to talk about what they are struggling with during the divorce. Not surprisingly, kids do not want to tell mom or dad things they think will hurt their feelings yet, they can feel torn, even with the best of intentions by both parents. What we know is that kids have undivided loyalty to both parents. They can say very conflicting things to each parent (if the parents compared notes between them) yet, it was their truth each time they said it. They are afraid sometimes to speak about what they need, because they don’t want to “make waves” or cause sadness.
When I went through my divorce, my former spouse and I worked with a Neutral Child Specialist in the Collaborative process. After meeting with the specialist and talking about our kids’ temperaments, developmental needs, sibling dynamics and our concerns, the specialist met with our kids once together and then individually. We then had a feedback session that provided us with some great insights by and about our kids that we used to create our parenting plan. We learned what we were doing well, where our kids were struggling, what they worried about and how we could better help them. We knew some things already, but also learned a lot while hearing things framed in a positive and constructive manner from the neutral.
Then, about a year and a half later, my son (then almost 10) asked when he could go back and talk to that woman who helped us with our divorce. Rather than pressing him about what prompted the request, his dad and I set up an appointment with him to check in with the Neutral Child Specialist. Low and behold, he was feeling a lot of stress each week because there were too many transitions between houses. We thought that our kids needed to see us each regularly but learned that the number of transitions was really hard on him. So when we met together with the specialist, we created a new plan that kept us regularly involved in the kids’ lives, but decreased the number of transitions from 7 to 4 every two weeks. Our son was worried that one of us would think that he didn’t like spending time with us if the time changed and that he was choosing one parent over the other despite having a great relationship with each of us.
We were so glad that he had someone he felt safe with in voicing what wasn’t working for him and he could ask for help. It was so much easier for him to talk to a neutral person, rather than worrying about how we might take what he was saying wrong. It was so helpful to hear from the specialist and have a safe place for us to problem solve. This is how the collaborative process helps keep children in the center, but not in the middle.
An attorney representing a client going through collaborative divorce is much more than a legal adviser. The attorney is often a confidant, emotional support system, sounding board, voice of reason, teacher, and financial adviser. Indeed, a collaborative divorce attorney is a “guide.”
The Sherpa people in Nepal inhabit the area surrounding Mount Everest. They have become natural guides up the mountain due to their native knowledge, experience in the region, and superior genetic disposition to function in high altitudes. Like lawyers in divorce – they have gone through this before and they are skilled in the tools necessary for success. Most individuals only experience divorce once. A good collaborative attorney has experienced divorce many times – as a guide. They have honed their skills and can “sherpa” or guide clients through this process in an efficient and successful manner.
I often ask my clients to think back about their wedding. How much of the wedding was legal? It is often a spiritual, emotional, familial, and sometimes a financial endeavor. The legal piece, however, is more minimal. Perhaps you signed some papers a day or two later and mailed them into the state? A divorce is not all that different. Attorneys should advocate and guide their clients to make decisions in their own best interest. However, the attorney role, much like the wedding itself, is multi-faceted and often not solely focused on legal advocacy. A divorce may feel like a long uphill road, like climbing a mountain. A client needs to find an attorney who they trust in all the roles that attorney will play. A good collaborative attorney should be with you on that journey – guiding you up that path to resolution and peace. 
I had a familiar conversation recently, this time on the golf course. As with life, golf is both precise and random: precise because there are exactly 18 holes to play, and random because a golfer never quite knows how the ball will fly from time to time nor with whom the starter will pair you up to play. We were paired with two great golfers who both happened to be named Sean.
Sean #1 asked what I did for a living. I gave him my elevator speech about being a Neutral Child Specialist in Collaborative Team Practice and he said, “Wow, that sounds awesome…..it must be really hard work.” My response is always that sometimes it’s hard work, but mostly it’s very rewarding to help families make the difficult transition from married to unmarried with less acrimony and stress for kids. Sean got a faraway look in his eyes and said, “I can sure see that.”
What he was seeing in his mind’s eye, I can only imagine. But often I will hear from young adults with whom I share my work that they wished Collaborative Team Practice had been available to their family when their parents were getting divorced. I have yet to meet anyone who said, “Well, I for one am very grateful that my parents’ divorce was highly acrimonious and adversarial because it was so character-building for me.”
We can’t pretend that ending a marriage will be a pain-free proposition, especially if there are children involved. Divorce is a life crisis for all family members. Collaborative Team Practice is designed to help keep the crisis of divorce from ever becoming a trauma for a child, because there is a profound difference how each impacts the child’s resilience and sense of hope.
If you are a golfer, here’s another way to think about it. Collaborative Team Practice is both precise and random: precise because there is a structured, supportive format for the process and random because of unique family circumstances and unpredictable challenges that arise from time to time. But the pairing of a family with a Collaborative team has great potential value. Collaborative Team Practice helps parents keep their eye on the ball and the ball on the fairway, away from hazards and deep rough where it could easily get lost.
When someone mentions divorce, where does your mind go? Do the words “fight,” “bitter,” or “vicious” come up? How about terms like, “teamwork,” “goals,” or “considerate?” It’s interesting to an experienced divorce lawyer how often the expectations include the former terms, and how often, in Collaborative Divorce, the reality includes the latter concepts.
I was reminded of this recently when a client I represented in a Collaborative divorce five years ago sent me a note. I have always remembered him because of the great shift in his attitude toward his wife by the time the case was over. When we began his divorce, he stated in an early meeting that the couple’s property should be divided in his favor, since he had always earned more than his wife (which is NOT the way the law looks at it). The statement was not well-received, either by his wife OR her attorney.
The couple had been married more than 30 years. As the case drew to a close, it became obvious that her job at a prominent Minnesota corporation, her debt-free house, and the even division of their property and substantial retirement assets would provide for her just fine. The only question left was spousal maintenance. We often see a spouse who doesn’t need financial assistance waiving maintenance—in fact, often the couple mutually agree to take jurisdiction over maintenance away from the court altogether, for all time. When I asked whether she had given any thought to waiving maintenance, she glanced at her veteran lawyer, then shyly said she would waive it. In the next instant, we were all stunned to hear my nuts-and-bolts, cut-and-dried, professional engineer client say, in a voice of genuine warmth, “I don’t think you should do that. You never know. You might need it some day.”
Approaching the end of their marriage as a family-centered problem-solving exercise, rather than a combat, allowed this wife to give up a claim I would have assumed she would keep. And it allowed her husband to decline her offer, in the interest of her potential long-term welfare, a gesture no one would have predicted. Their mutual trust of each other, reaffirmed during their weeks of working together, ultimately allowed them both to make decisions that considered each other’s welfare as much as their own.
Have you found yourself repeating to your children a phrase your mom or dad said to you when you were young? It is true that we are most influenced by the parenting models and family dynamics we grew up with.
If you are going through a divorce, how you divorce will have a huge impact on your children. In collaborative divorce practice, your children can experience your better parenting practices even in times of stress and conflict. There are resources for parents to help their children through the divorce process. Vicki Lansky’s The Divorce Book for Parents and Constance Ahron’s The Good Divorce provide practical tips and guides for parents.
In addition to helping them cope with your divorce, you can model for you children a way to handle difficulties in their future relationships by choosing the collaborative divorce process. In a collaborative divorce, your children’s interests will be heard with the help of a collaborative child specialist. Instead of fighting over custody, you will focus on what parenting schedule is in the best interests of your children.
This is a gift to your children, not only for their present well-being but also for their future relationships and parenting.