May 2014 | Collaborative Law Institute

May 27, 2014

With so much at stake in a divorce, it is tempting to think about how to “win”. Yet, the grim irony of divorce is that “winning” often leads to poor results. I know that seems like a contradiction, but most divorce lawyers who, like me, have spoken with “winning” clients after a divorce, know that it is true. Almost every “winning” client I have known during the past 30 years of divorce practice has expressed severe disappointment with their “winning” outcome. The real “cost” of a litigated divorce (or even a divorce that settles on the courthouse steps) is so great financially, emotionally and, particularly for children, psychologically, that there truly are no winners. Does that mean that, when facing divorce, you should simply “give up” and let your spouse have whatever he or she wants? Of course not. Because there is so much that matters, you need to get the best possible outcome for you and your family. So, how can you achieve that, without trying to “win” in the traditional sense? By finding a smarter way to get your spouse “to yes”. Getting To Yes is the whole essence of divorce. More than 95% of all divorces end in an agreement (and not a trial), so your divorce is likely to end in an agreement of some kind. Therefore, the entire divorce process is one of seeking ways to get your spouse to say “yes” to the things that really matter. So, how do you get your spouse to eventually “say yes” to the things that are important to you? It is tempting to think that you will get your spouse to “say yes” by hiring an aggressive lawyer to make bold arguments in your favor. Tempting, maybe, but does that really work? Is your spouse the kind of person who will respond to arguments by giving in? Probably not. On the other hand, if you are like the rest of the world, you will need to be much more strategic. The chances are quite good that the best way to get your spouse to say yes is to help them see that saying yes meets their interests. This notion of ”interest based bargaining” is a way to truly “win” without having to make anyone lose. This method of truly “winning” without creating losers is rapidly growing in popularity and is commonly used by Collaborative Divorce lawyers. To find a Collaborative Divorce Lawyer in Minnesota who can explain this to you go to www.collabortivelaw.org.

May 22, 2014

In the list of life’s most stressful events, divorce is near the top of the list. Divorce can cause health concerns, sleeplessness, job performance problems, distraction, and short tempers. It can damage relationships with others and, obviously, can be very hard on children. People going through divorce often exert great energy trying to keep things together, while also trying to make decisions with long-lasting implications. It is important to find ways to lessen stress during divorce and keep calm. Here are four tips to managing stress during divorce:

Find a professional team that makes you feel comfortable and you trust. A supportive team, starting with an attorney, will help you feel supported and more comfortable with the decisions you are making. Your attorney will be with you along the journey. Often your attorney will see you cry, get angry, and express fear. Other team members, like a financial neutral or child specialist, can also help you feel supported and help the process move forward in a positive manner. Your team should not cause you stress. Just the opposite – it should help you feel safe and lower anxiety.
Focus on your own well-being. It is important to make sure you exercise self-care. Take care of yourself. Get sleep, exercise regularly, and reach out to friends for enjoyment and relaxation. The better you are personally, the better outcomes you will find in the divorce process.
Be mindful of your future. Not knowing what the future holds can be stressful. Learn all that you can during this process about your future so you can alleviate this concern. Make sure you grasp the financial implications and parenting decisions being made. Ask lots of questions and keep your long-term goals in mind. The more you know, the more comfortable you will be moving forward.
Consider a collaborative divorce. A litigation process – leaving decisions up to a third party – is inherently stressful. The adversarial nature of that process can add to the anxiety. On the other hand, negotiating outside of the courts and using a collaborative process can help you maintain control of the outcomes and help build a more positive co-parenting relationship. You can learn more about collaborative divorce here.

May 21, 2014

After the service was over, my friend, Larry, came up to me and said, “When I die, I want you to do my eulogy!” “Then he’s going to have to spend a lot more time with you,” my wife chimed in. “He’ll have to learn a lot more about you.” “Oh, God, no!” said Larry. “I don’t want THAT. I want him to lie his head off about what a great guy I was.” For my father-in-law, one of the Greatest Generation’s Navy veterans, there were many amazing accomplishments to remind his friends and family of. There was his status in the family, and the endless help he provided. There was comedy and quirkiness. There was love. It all begged the question, as I put the remembrance together, of what could be said of anyone? How do you sum up someone’s life? What did they like? What drove them crazy? I thought about some of the divorce clients I’ve had over a 34-year career, about the ones who just wanted to know “what my rights are.” About others who’d never missed a school play all the way through public school, and were terrified they might, if communications broke down. I wondered what eulogies their children might deliver. What would those epitaphs be? “I just want to know what my rights are”? “Daddy! You came!”? “You were always there for me, Mom!”? It’s said the Past can inform the Present. It might be a good thing if the Future could, as well.

May 20, 2014

During and after a divorce, tax matters take on new importance since your financial circumstances have probably changed, as has your filing status. If you were in charge of tax returns during your marriage — and especially if you were not — keep these tips in mind to support the best possible outcome when filing your annual returns. Some legal fees are deductible. While most court costs and legal fees for obtaining a divorce are not deductible, some are, including:

Fees paid for tax advice related to a divorce
Fees paid to determine or collect spousal maintenance
Fees paid to determine estate tax consequences of a property settlement
Fees paid to professionals if the services were completed to verify the accurate amount of tax or to assist in obtaining spousal maintenance (appraiser, actuary, etc.)

These deductible costs are usually claimed as a miscellaneous itemized deduction on Schedule A of your income tax forms, but are subject to the 2 percent of adjusted gross income floor. Talk to your tax advisor to see if you qualify. You may be held liable for past unfiled joint tax returns or audited returns. Even if you were not involved in the preparation of your taxes during your marriage, you may still be held liable for unfiled returns or inaccurate returns. You can request copies of past federal and Minnesota state tax returns from your tax advisor or from the IRS and Minnesota Department of Revenue (Federal Form 4506-T and Minnesota Form M100). Plan ahead for filing of future tax returns. Your marital status on December 31 of a calendar year determines your filing status for that year. If you were married most of the year, but your divorce is finalized on December 31, you cannot file as married joint, but would instead file as either head of household or single. If you are in the process of getting divorced, consider working with your spouse, your attorney and a tax professional to determine which filing status would best suit your financial situation. Also, keep in mind during the divorce process that it helps to spell out the following in the divorce decree:

Who will itemize mortgage interest, real estate tax, charitable contributions and other itemized deductions?
Who will claim any dependent children’s exemption and tax credit?
Who will take any long-term capital loss carryover?
Who will claim any quarterly estimated tax payments made during the year?
Who will report investment income from joint accounts?

If this is not clearly spelled out in your divorce decree, consult with your tax professional or attorney for guidance. Review your tax situation to determine withholding, estimated tax payments, cost basis of assets and taxable retirement benefit distributions. Your W-4 withholding may need adjustment after your divorce to ensure that enough tax is deducted from your wages — or less tax, depending on your situation. You should also determine if you need to make additional estimated quarterly tax payments to cover spousal maintenance or personal investment income (which does not have taxes withheld like wages). You’ll need to know the cost basis of your personal investments, real estate and any life insurance with a cash value. If you sell these assets in the future, the cost basis will determine if you have taxable income from the sale. Finally, if you take a distribution from a retirement account during the divorce process, you may have to pay taxes on that income. Plan ahead for your taxes during the divorce process and prior to filing that first post-divorce return. You’ll reduce the time, cost and potential frustration of this necessary part of your new life.

May 19, 2014

Many years ago when I had recently moved and was looking for a new dentist, I simply looked through the phone book and found a dentist that was located nearby and set up an appointment. Later, when I arrived at the dentist’s office for my appointment, the receptionist asked how I had heard of them and I responded, “I just found you in the phone book”. She said “Oh, that’s too bad. That’s a risky way to find a good dentist.” I often remember that memory when potential clients come to my office in Northfield, Minnesota to have a free initial consultation. I think, “Did they just find me in the phone book?” I ask potential clients how they have heard of me and they often respond that they were referred by their therapist or their attorney (who may not practice Family Law or Mediation). Sometimes they say that they found me in the phone book or through my website or they simply say they found me “online”. I think to myself, “That’s too bad. That’s a risky way to find a good attorney or mediator.” I don’t actually say that to them, but that’s what I’m thinking. If I were in their shoes and was looking for an attorney, I would ask a therapist or other local attorneys for their recommendations. Often these professionals have personal relationships with various attorneys in the community and even if they don’t have a specific recommendation they would know who would be able to point you in the right direction. When looking for an attorney, be aware that legal “ranking” of attorneys is a dark art. When I get emails or letters asking me to “rank” other attorneys, I simply delete the email or recycle the letter. I don’t trust these ranking systems and neither should you. I would look for professionals who focus their practice in Family Law. Like any other profession, people get really good at what they do often. So, I figure it’s more likely that an attorney who does a lot of Family Law will be more likely to be effective and efficient in that area of law. I would look for someone who has training, and who keeps up their continuing education requirements, in mediation. I say this because mediation training helps people see all sides of a disagreement and helps give professionals the tools to effectively diffuse conflict and work towards constructive solutions. You want effective conflict resolution to be a focus of every professional in your case. Beware of attorneys that tell you that you “deserve” a certain outcome or that assures you that a court would view your case a certain way. I’ve been to court many times where the spouses attorney has promised their client that the judge would rule a certain way, only to have the judge decide the case in a totally different way. Then I wonder what those attorneys tell their clients afterward about why their guarantees were wrong in the end. I specifically tell clients that there are no guarantees when it comes to court. I do this because I’m in court for over 200 court hearings a year and, because of that extensive court experience, I know that I can’t fully predict what the judge will do. So, never trust an attorney who tells you that a certain judge always rules a certain way or assures you that a court will view your case a certain way. A good place to start looking for a Collaborative Professional is on the Collaborative Law Institute of Minnesota website. There you can search by geographic area and by profession. If your primary concern is about mental health or how to approach your partner about using the Collaborative process, you may want to search for and speak with a “Coach”. A Coach is a mental health professional who has training in the divorce process and mediation and can help you understand your options. If your primary concern is financial, you may want to search for an speak with a “Financial Professional”. They can help you understand how financial issues can be understood and resolved. If your primary concern is your children, you may want to search for a “Child Specialist”. They are trained mental health professionals who have special experience working with kids and families and they can help you understand how to speak with your children about what is happening and how you and your partner can be there for your children during this difficult time. If you are concerned about any or all of these issues you can always speak with an attorney about the legal issues involved and they can help you understand how these other professionals can help you.

May 15, 2014

For Minnesota families, summer feels different than other times of the year in more ways than just the warmer weather. Because most kids don’t attend school year round, the summer months can present unique scheduling challenges. This is especially true for families headed by two wage earners, and even more so when parents have gotten unmarried. For a school-age child, the summer routine often includes a mix of camps, classes and lessons, latchkey programs, vacations and sporting activities, with many logistical issues to be resolved. This is “times 3” if there are three kids in the family! The start and end times of kids’ activities vary week to week, and tend to not conveniently coincide with the work hours of the parent on duty. That’s a lot of moving parts for families in which parents are getting unmarried. Managing complicated logistics is especially stressful if kids move from Mom Island to Dad Island without a safe and reliable bridge between the two. This is one reason why Collaborative Team Practice is designed to help parents establish the best possible co-parenting relationship after a divorce or break up. This always makes it easier on kids, but it can also be a huge benefit for time-challenged parents, and for the support network of extended family, baby sitters and carpool parents who can be resources for kids without having to be in the middle. Here’s the rub: establishing an effective co-parenting relationship isn’t easy. An effective co-parenting relationship relies on clear communication, cooperation, reasonable flexibility and courtesy, and these elements can be in short supply during the painful end of a marriage or partnership. The Collaborative guidance and support of a neutral child specialist to create a Parenting Plan and a neutral coach to create a Relationship Plan are important resources toward the goal of effective co-parenting. We know this hard work can be invaluable for your family in the future. You and your kids deserve to enjoy all the summers to come.

May 14, 2014

Sometimes Life’s lessons are subtle and elusive. Other times, they’re less so. In mid-March, my granddaughter arrived “in the usual way”, big dark eyes and a head full of dark hair that had all the nurses exclaiming. My stepson was beside himself with joy and tenderness. My wife’s feelings radiated from her face like a beacon. That was Thursday night. On Monday, the new parents brought the baby to St. Johns Hospital to visit Grampa, who was failing, and in and out of awareness. Grampa was able to sit up and hold his great-granddaughter. “Sweet baby!” he murmured repeatedly, smiling down at her. The next day, Grampa returned to his assisted living apartment under a hospice arrangement. The last weekend of March saw my wife and I camped at his bedside from Friday on. Relatives came and went, and as the significance of the moment registered, I expressed my feelings in poetry. Monday morning he slipped away. The funeral was three days later. In each case, I was reminded of the majesty and grandeur of Life’s primal events; of how great is the illusion of human control over the most important matters of our lives. I wondered at the ability of a tiny baby to cement two young people together, and suddenly found myself thinking how insane is the notion that anything could ever separate her parents. Yet, as a divorce lawyer, I see it every day. And I was humbled once again recalling my clients who reconnected with the joy of their children’s births at the same time they were witnessing the death of their marriages; who saved what they could and grieved the loss of what they couldn’t. Occasionally, I hear from them, reporting that the Great Wheel of Life did, in fact, continue to turn; that sometimes the lessons they learned were not realized until months or even years later. It made them, they report, much more sensitive to the teachings of any given moment. It made them participants, rather than mere spectators, in their own lives. It made them think.

May 13, 2014

I just read a Forbes magazine article about the four methods of divorce: Do it yourself Divorce; Mediation; Collaborative Divorce and Litigated Divorce and it reminded of how lucky we are to live in Minnesota. Collaborative Divorce started in Minnesota in 1990 and is now recognized throughout the world as one of the four options. Collaborative Divorce is now being practiced in 24 different countries, on four continents and may be the world’s fastest growing alternative. Last week, I spoke to two divorce attorneys from Capetown, South Africa who will be coming to Minnesota for the entire month of May to study this new, groundbreaking method. Collaborative divorce is growing so rapidly for a reason; it works. During my 30 years of practicing family law, I have handled thousands of divorces using every method available. Today, I spend most of my time doing Collaborative cases because it gives my clients better results for less money; particularly when there are children involved. While I applaud the Forbes article for helping raise awareness about Collaborative Divorce, I do need to suggest one correction. The author suggests that Collaborative may not work as well when there are complicated financial situations or significant assets. In fact, that is actually where Collaborative Divorce works best. I have handled many multi-million dollar Collaborative cases and those clients have generally obtained the best outcomes. Because Collaborative Divorce has a rule of full transparency and invites creative structuring of settlement, people with large amount of assets generally get even better outcomes. The rules of disclosure in a Collaborative case are more thorough than in other types of cases. The author of the article is correct in saying that Collaborative Divorce is not right for every case and that each person facing divorce should investigate each option before they choose. I completely agree with that advice and I would add one other critical element. In weighing each option, make sure that you speak with professionals who have substantial experience in each area. Getting information about Collaborative Divorce, or any divorce, from someone without training and experience in this area, can be reckless. To find an experience Collaborative attorney in your community who will fully explain Collaborative Divorce to you; go to www.collaborativelaw.org.

May 9, 2014

Divorce is one of life’s most stressful events. In fact, research shows that ending a marriage is second only to the death of a spouse as a predictor of illness. So in order to stay healthy, it makes sense to incorporate stress-reduction techniques early and often throughout the process. Here are three suggestions:

Find an emotional outlet. It is common to focus on the loss you feel at the end of a relationship. While you may be tempted to suppress these unpleasant feelings, doing so will prevent you from moving past them. Make an effort to confront your negative emotions by talking them out with supportive friends or a therapist. It is normal to want to isolate yourself, but relationships are important. The end of your marriage does not mean that you must go through life alone. Putting your thoughts and fears on paper can also help you articulate your feelings and gain some clarity about your past, present and future.
Practice self-care. Stressful times require that you become more intentional about taking care of yourself. Eating nourishing, nutrient-rich foods will give your body the fuel it needs to maintain your energy levels. Regular exercise can lower your stress levels and provide a healthy distraction from your worries. Treating yourself to something you love, such as a round of golf or massage, can alleviate stress. Creating space for relaxation is essential also, whether it’s reading a good book, doing yoga or mediation, or taking a nap. Self-care is essential to the healing process.
Feel gratitude. A breakup is painful and can make it difficult to look past your immediate feelings of pain and loss. Taking the time at the beginning and end of each day to recognize the many gifts you have been given can increase your sense of well-being. Try pausing at various times during the day to remind yourself, “I am grateful.” Some people find it helpful to keep a gratitude journal. Consciously choosing to be grateful on a regular basis can brighten your outlook on life.

Establishing these three healthy habits can help anyone reduce stress. They can be particularly helpful if you are experiencing the disruption of divorce.

May 7, 2014

Recently I received a LinkedIn endorsement from Christa, a client I represented in 2008 in her collaborative divorce. In thanking her for her endorsement, I took the opportunity to ask her how she was doing. With her permission, her response is reproduced below. At the time of her divorce, Christa’s two (2) daughters were 16 and 17, and Christa only worked part-time. Hello Tonda, How nice to hear from you! Life has been good on my end. I’ve move forward professionally and personally–continued to work in psychiatric research, first part-time and then, for the past 4 years full-time. In addition, I’ve been building my private counseling practice, which led to 60+ work hours per week. The practice is going well enough that I was able to resign my salaried position effective this November. It’s not easy leaving a place that feels like a curious and lovable community, but for the sake of living a full life, choices needed to be made. In October 2008, a mutual friend introduced me to a man who is now my husband. He was married before and has 2 children–his son is the same age as my oldest daughter (23), and his daughter is 15. We were married February last year (2013) on Key West. Almost my entire family came over to be there for us–including some nieces and nephews. It was lovely. Two weeks later, my former husband got married as well to a woman he had been dating since our separation. The girls are doing very well. My oldest daughter will be graduating this coming spring with a major in education and mathematics. My youngest daughter will graduate next December, and then plans to get her MA degree in child psychology. After struggling with grades and transitions the first year, they have both become straight-A students. My youngest daughter said something interesting the other day while we were driving. She said, “Mom, I can’t even imagine you and dad being together anymore; it’s not like I don’t remember, but you guys are so different, and all my friends can’t even believe the two of you were ever married. I mean, how did you make it work for so long?” Today, both my daughters see the benefit of their parents having divorced and moved on. My former husband seems happy, has a good relationship with his daughters and brought a great woman into his life. I’m happy as well, and likewise have a wonderful connection with my daughters. Both daughters are relieved they don’t have to worry about either one of us, and both of them like our choice of new partners. Everyone is well and happy. I’m very grateful for the part you played in giving me the information and support I needed to take the step toward divorce that had frightened me so much. Not once did I regret this transition. I appreciate the divorce process was not hostile. You were calm, wise and nurturing when I was in the grips of anxiety. Sure, there were hurt feelings and it’s very stressful going through this process. However, it left two people free to move forward and build a meaningful life. It also freed our children from the worry they had for parents who just could not be happy together. So: thank you, thank you, thank you!!! All the best, Christa