October 2014 - Collaborative Law Institute

October 29, 2014

1. Forcing Your Kids to Take Sides The last thing a parent wants to do during a divorce is to cause more pain for the children. Divorce is a painful time during which many negative emotions can arise, including anger, fear, regret and grief. Often there is a perceived need to blame the other party for one’s unhappiness, together with a desire to hold your children close. However, keep in mind that putting your kids in the middle is harmful to them. Resist the urge to blame and criticize your spouse in your kids’ presence. Don’t force your kids to take sides or to report on the other parent’s activities. No matter how difficult it may seem, the best thing you can do for your kids during a divorce is to remind them that both of their parents love them and will always be there for them. 2. Engaging in an Adversarial Divorce Divorce is a major life event. It is the legal recognition that your marriage is over. Unless your situation is unusually simple (short marriage with no children and few assets and liabilities), each party should have an attorney to provide advice and to make sure that the required documentation is accurate and complete. For most couples, the divorce process can be completed without setting foot in a courthouse. Using skilled neutrals in the Collaborative Process or mediation helps to avoid the polarization that often takes place in more adversarial processes. Better post-divorce communication, lower divorce costs and less resentment are other benefits of no-court divorce processes. 3. Having Unrealistic Financial Expectations Divorce means creating two households in place of one. Most couples are struggling to make ends meet before separation. Creating a plan to support both households can be challenging. Unless income can be increased, down-sizing and belt-tightening are often required. There must also be a plan to pay divorce costs. Understanding these challenges going into divorce can provide both parties with a reality check and allow the divorce process to go more quickly and smoothly. 4. Forgetting to Consider Tax Implications Many of the financial decisions made in divorce have tax consequences, some more obvious than others. When dividing marital assets, it is important to recognize that some assets may actually be worth less than face value due to future income tax liabilities. Most retirement accounts, for example, have been funded with pre-tax earnings, meaning that withdrawals will be taxed and, depending upon the timing, may have early-withdrawal penalties as well. Stock portfolios will likely be subject to capital gains taxes upon liquidation. On the cash flow side, dependency exemptions and characterization of support payments (child support or spousal maintenance) impact the amount of after-tax cash each party has available to meet living expenses. It is essential to get competent advice during the divorce process in order to avoid unexpected surprises down the road.

October 27, 2014

In Part I we learned that advocacy in the “rights-based” Court Model is hard on the people involved because by focusing on the 3^rd-party decision maker, e.g., the judge, the parties care little about each other’s view. As a result, their relationship can become more adversarial. In Part II we learned that by removing the decision maker in the “interest-based” Collaborative Model the parties become the decision makers who resolve mutual problems based on their defined future needs, interests, and goals. But is the removal of the 3^rd party decision maker enough to create a process that is truly “soft” on the people? Most people who have gone through a divorce agree that divorce is much more than a legal event. More importantly divorce is about changing relationships, improving communication, establishing co-parenting, engaging in problem-solving, and securing a stable financial future. But many divorce processes do not adequately address these more important concerns, thus limiting divorce to simply a legal commodity. To gain the added value of improving your relationship with your soon-to-be ex-spouse, of becoming successful co-parents, of mutually planning for the future, and of customizing your financial arrangement to meet the needs of all family members within the resources available, requires the assistance and expertise of NEUTRAL professionals. These neutral professionals include a Neutral Financial Professional, a Neutral Coach, and a Neutral Child Specialist. This team approach is the “secret sauce” used in the Collaborative Model that can transform the experience of this life event into something constructive, affirming, and even peaceful. Obviously, this is of great benefit to children.

Diagram - The Power of Neutrality 082814

In addition to the support and expertise provided, the neutrality of the neutral professionals balances attorney advocacy. This permits the attorney to stay in the problem-solving and interest-based advocacy role for his or her client, while the neutral professionals hold the ground for resolution on behalf of the whole family. This interdisciplinary, holistic approach to advocacy and expertise is what distinguishes the Collaborative Model from any other model out there. Collaborative professionals like to say this model contributes to world peace one family at a time. If this approach makes sense to you, tell your friends, family, and colleagues about the Collaborative Model and contribute to world peace.

October 23, 2014

Money can be a major cause of stress in a marriage, so it should come as little surprise that solving money problems can be even more complicated in divorce. Divorce usually comes at a time of economic strain in a marriage and, of course, adds fuel to the fire by immediately adding additional expenses; the cost of a second home, legal fees and the cost of other divorce professionals. The fear of scarce resources can cause people to “fight for a bigger piece of the pie”. However, it soon becomes clear that, if both sides fight hard for a bigger slice of the pie, the legal fees and other expenses of maintaining the fight will cause the pie to shrink and the fear of having too little to rise. So, how can couples rise above the dilemma of draining resources from a rapidly shrinking pie? Here are a few quick tips:

Recognize that the most expensive part of a divorce is conflict. The desire to “lawyer up” and to focus on “winning” generally just creates economic loss for both parties. Most importantly, there are ways to protect your interests that work better, and put more money in your pocket, than gearing up for a fight.
Look for true “win-win” solutions that can actually make the pie bigger. Believe it or not, there are ways to think creatively in a divorce that will actually help both you and your spouse get more resources; including ways to save on taxes and transaction costs and ways to build in true incentives for both of you to earn more income and/or spend less money.
Improve your money sense. In the end, you will be left with your share of the assets, income and liabilities of the marriage. Your financial future will depend on your ability to manage your share, perhaps more than any other factor. Divorce provides an opportunity to improve your money skills, including your spending habits and earning power.

Collaborative Divorce, because it focuses on reducing conflict and increasing skills, and because it gives you the assistance of a neutral financial expert, provides many opportunities to improve in each of these areas. To learn more about the Collaborative options, and other ways to help address divorce financial issues go to www.collaborativelaw.org or www.divorcechoice.com.

October 21, 2014

Selling a home is stressful. Getting divorced is stressful. Combining the two events can seem extremely daunting, but it doesn’t have to be. Here are five staging tips to ensure quicker, higher offers on your home.

Curb Appeal. The outside of your home is the first impression a buyer will have. Keep the lawn mowed, and shrubs and flower beds cared for. A well maintained lawn and some fresh flowers can go a long way. If the outside maintenance was previously your ex’s responsibility, consider whether this is something you are able to take care of yourself or if you will need to hire out. With winter in the Midwest on the approach take snow removal into consideration as well.
De-clutter. A divorce is a good time to de-clutter all areas of your home. Since you will be splitting up belongings anyhow, now is a great time to de-clutter, sell, donate and start fresh with only the clothing, furniture and decor that you truly utilize. Online garage sales are all the rave right now for selling belongings. A good rule of thumb is if you don’t want to move it, get rid of it now. Going through drawers and storage spaces to get rid of junk is one part of de-cluttering, but also removing items like small appliances and magazines from the countertops creates a cleaner looking spaces.
Remove personal items. You have probably already began to do this as those old family photos might not be as appealing to have on your walls after your spouse has moved out. There are different schools of thought on this and your realtor will likely have their own opinion, but your tasteful, professional photos of the kids don’t necessarily have to go. Removing personal items can also help you begin to detach yourself from the house. Don’t forget to tuck away personal care items in your bathroom, which will simplify your countertops.
Create neutral spaces. Pick up a paintbrush and tone down any bold color choices in favor of a more natural palette. The mustard yellow accent wall in your kitchen or those bubble gum pink walls in your daughter’s room may appeal to you, but toning them down will make your house more palatable for potential buyers and they will be able to envision their decor and taste in the house. Consider rearranging and/or removing some furniture to create more visually open and appealing spaces. If your ex is going to benefit from the sale of your home, be sure to discuss their involvement in the painting and handiwork as well.
Lastly, consider the appeal your home has on the senses. What does it smell like? Avoid spray scents and instead bake bread or cookies. Open the blinds and curtains to let light in. Turn on the lights. Consider the temperature inside of your home. Whether it is summer or winter choose a temperature that is comfortable and invites people to stay and look at your home.

In addition to these staging tips you may want to consider having your home professionally staged. A survey from the National Association of Realtors found that the average staging investment is 1-3 percent of the home’s asking price, which generates a home staging return on investment of 8-10 percent. Discuss with your realtor if professional home staging is something you should consider, but don’t skip out on these five tips which are crucial to home selling!

October 17, 2014

Divorcing parents often wonder how vacations are treated in a parenting plan. There are often three types of vacation options addressed in divorce.

Vacation during parenting time. Often parents are each allowed to take unlimited vacations during their scheduled parenting time. There may be additional requirements to notify the off-duty parent of any travel or certain vacations that are not agreed to generally. But because these vacation do not impact parenting time, they are usually the simplest to address.
Vacation with the children that includes off-duty parenting time. Some parents agree to some amount of time for vacations that are longer than parenting time blocks. One or two weeks a year often fits for families. These vacations may include travel out-of-state or be contiguous time in town. Usually both parents have the same amount of time and there is often a notice requirement – that the parent wanting a vacation informs the other parent of the planned vacation. This time often supersedes regularly scheduled parenting time and is not made up at a later date.
Vacation without the children that includes no-duty parenting time. Sometimes parents agree to include vacation time without the children in a parenting plan. This allows a parent to have time away while the other parent takes on more parenting time. This vacation time is also usually equally provided to both parents and includes a notice requirement.

In all of these options, it is often a good idea to not inform the children of a proposed vacation until it has been agreed-upon by both parents. Obviously, these options address only the parenting time elements of vacation and not the financial significance of vacations. Vacations and travel may be included in budgets and support options or other financial agreements can be reached or discussed in the divorce process.

October 15, 2014

Getting married is about love. Well the tide turns when a couple decides to get unmarried or divorced. Divorce is then about money and kids and hopefully not in that order. Being prepared to have financial discussions with your spouse, financial neutral specialist, or your attorney takes time, effort, and I think introspection, to create the greatest likelihood for a successful outcome. One of the most tedious and time-consuming tasks of getting unmarried is compiling all of the financial information necessary. One way or another you and your spouse need to provide copies of statements for all assets, liabilities, paycheck records, tax returns, deeds to your home, pension and 401k accounts, credit card accounts, bank accounts and more. More than likely you will build a more complete documented financial record than most ever did during their marriage. I think the most important thing you can do to prepare beyond being fully transparent in disclosing and providing all financial documentation is to develop a healthy mindset. While this is challenging it is certainly doable and worthwhile. The hard work it takes to develop a healthy mindset can save you time, money, and headaches. Just what do I mean by a healthy mindset? It helps to put all your focus on the future instead of dwelling on the past. Focus on your interests instead of positions. Interests are the underlying reasons why something may be so important to a person. Let us look at a simple example. Let us say we have one orange and two people who both want the orange. They both draw lines in the sand saying no to the other in terms of giving up the orange. This is a position, something both people decided. It is not until we ask why the orange is so important to them that we determine the underlying interests. What is it that caused each of these people in our example to decide they both want the orange? It turns out one wants the orange to eat and one wants the orange peelings for baking. By getting to the underlying interests, we solve the problem position of one orange wanted by two people. Learn to think, talk, and express yourself in terms of your interests when negotiating with others. You will be amazed at what can happen and how seemingly unsolvable problems can be resolved. Helping you and your spouse speak in interests is something we as professionals do in the collaborative divorce process. Here are four other basic skills you can learn and practice to help you through the divorce process.

Manage your emotions: As I said earlier focus on solutions rather than reacting emotionally. Regardless of what someone else might say do not take it personally.
Flexible thinking: Flexible thinking will help you come up with new ideas and creative solutions. It is important for you and your spouse to maintain flexible thinking during the divorce process.
Moderate behavior: Moderating your behavior will help your spouse be a little more open minded, respectful, and less defensive.
Checking in with yourself: As you are going through divorce process checking in often with self on how you are doing on the above three items especially when under stress can help things go more smoothly.

While I cannot promise you, everything will be smooth sailing in your divorce by following these simple suggestions the seas of divorce can be less intimidating and help you reach your final port destination with a little less wear and tear.

October 14, 2014

People who are facing divorce after many years of marriage, or just later in life, face unique challenges. They are less connected by the need to provide daily care and financial support for their children. They also may be facing other life changes such as upcoming retirement or increasing health concerns (and costs!) as they age. Sometimes this has been called The Graying of Divorce. According to Mayoclinic.org, “Empty nest syndrome isn’t a clinical diagnosis. Instead, empty nest syndrome is a phenomenon in which parents experience feelings of sadness and loss when the last child leaves home.” It is a life transition where spouses can take a step back and look at how their lives are progressing. As part of this process of reflection, they may say to themselves: “I’ve put up with this long enough!” Alternatively, it might be a time when couples take advantage of having more time to explore new interests and activities to share together. A process that can be helpful to those considering divorce or separation is called Discernment Counseling. Discernment Counseling is different than regular couples counseling because–instead of just focusing on helping the marriage relationship–it focuses on deciding whether the marriage should be worked on or whether divorce or separation should be pursued. The University of Minnesota has a Discernment Counseling project has a helpful website that you may want to visit if you want to learn more about Discernment Counseling. If divorce is the path chosen, Collaborative Divorce is often a perfect option as it can help increase communication and mutual respect to the benefit of both spouses (and grown children!). A neutral financial professional can analyze retirement cash flow and budgets, including tax implications of withdrawing retirement funds. Empty Nest divorces have their own unique challenges. They also are an opportune time to be able to enter a process that the older divorcing couple can be proud of in creating a respectful transition to separate living and ending of their marriage.

October 13, 2014

The beginning of a new school year is all about the juxtaposition of continuity and change. We all remember the mix of excitement, anxiety, hope and worry that accompany this time of transition for children. Parents want their kids to settle in safely and achieve success, while kids count on their parents’ support. For many children, the changes marking the new school year are not only teacher, grade, classroom and classmates, but changes in their families because of divorce. Here are seven tips for co-parents to support their children in this situation:

Let your child know that you have contacted trusted adults at school (teacher, social worker, principal) to let them know about the family change, and have done so in a calm and respectful way. Tell your child it is important that trusted adults at school know because they care about your child and will be available to offer empathy and support as needed. Reassure your child that family information will be kept confidential by these trusted adults, and it is your child’s choice about whether and when to share information with classmates.
Explore possible school-based resources for children whose parents are divorced. Many schools offer specialized support groups as well as individual counseling resources for kids.
Participate in beginning of school activities with your child as fully as possible. Express interest, encouragement and enthusiasm for this important part of your child’s life.
Establish routines that will support your child in homework completion, having family meals and getting to bed on time. Be sure to share information with your co-parent regarding school projects and homework assignments that will need to be worked on in both homes so your child experiences continuity of support.
If your child participates in sports or other extracurricular activities and depends on parent involvement, be sure to arrange transportation and other logistics in advance so your child doesn’t worry. If there are multiple children in a family, this often requires co-parent cooperation.
Establish a joint online family calendar for scheduling child-centered events. This is an effective way for co-parents to remain in the loop regarding activities for their children.
If your children are experiencing transitions between homes as part of your parenting plan, be aware that they will benefit from your patience and empathy in this process. Help them get organized, and be supportive rather than critical if they forget something at the other parent’s home. It’s a big learning curve for kids.

A positive and responsive school experience can be an anchor for your child, especially in the midst of family change. I hope this can be the case for every child this year.

October 9, 2014

If you have created an estimated monthly budget for your new household after a divorce, know that it will likely change down the road. You may discover after a few months that your spending estimates were unrealistic in some areas while other areas of spending were surprising or unexpected. Here are some tips for projecting your expenses realistically into the future. Plan for car purchases. Even if you don’t have a car payment now, you’ll need to replace your car at some point. Consider including a figure in your projected expenses for “car savings.” If you usually keep a car for eight to 10 years and think you’ll spend about $25,000 on a new vehicle, save $260 a month to buy a newer car for cash when the time comes. This means no new car payment, but you’ll have a new vehicle! If you purchase cars more often, factor in the sale or trade-in of your existing car when determining how much to save. Keep up with car maintenance. The older the car you have, the more money you should set aside for unexpected repairs as well as maintenance. Maintenance could include oil changes, replacing tires, fixing brakes, tune-ups and other recommended inspections. Regular maintenance will help your car last longer too. Escrow for home repairs. A good rule of thumb for home maintenance costs is to escrow 1 to 2 percent of the value of your home each year. A home valued at $300,000, for example, could have annual maintenance costs of $3,000 to $6,000. Costs will be on the higher end for older homes or maintenance you will hire out. Maintenance could include:

Replacing the roof, siding or windows
Caring for lawn and garden, landscaping, drainage
Fixing and replacing appliances
Repairs to plumbing or electrical
Cleaning and replacing carpets
Painting
Pool maintenance
Small maintenance for light bulbs, furnace filters, etc.

You might not need the full annual budget for maintenance every year, but you may need more than the budget in other years. Start a holiday savings account. December gift giving, let alone birthday and anniversary gifting, are often missed when budgeting. Consider the gifts you give, the decorating costs and entertaining you host as part of a holiday savings account. This is one area that, once budgeted, people often decide to scale down in future years. However, if it’s a priority for you, you’ll have cash to enjoy it instead of worries about the bills later! Vacations should be planned with cash. If you routinely take one family vacation a year or take trips to visit friends and family, add these expenses to your monthly budget and put away cash to cover costs that include airfare, car rentals, lodging, meals, touring and shopping. Don’t forget to budget for “big box” spending. People often create a projected budget for groceries or school shopping expenses, but an easier way to budget is to create a “big box” category to cover shopping at stores like Wal-Mart, Target, Costco or other department/membership stores. If you find yourself shopping at these stores at least twice a month, budget for the trips and bring cash. These are just a few of the ways you can project your future expenses and plan ahead. Other categories to consider include: health care, debt payments, charitable giving, and entertainment. Adjust your amounts as you start to see a pattern month to month, and you’ll have a clearer picture of your cash flow forecast!

October 8, 2014

In Part I we learned that “rights-based” advocacy in the Court Model is hard on the problem but also hard on the people. Advocacy in the “interest-based” Collaborative Model is also hard on the problem, but SOFT on the people. How is this possible? In the Collaborative Model, the parties voluntarily agree to reach a settlement outside of court. Thus the 3^rd party decision-maker, e.g., the judge, is removed from the collaborative process. Instead, the decision-maker is the parties themselves!

In order to reach a settlement, the parties must consider and honor the other party’s perspective. In the Collaborative Model, advocacy is not about the position a client takes on a particular issue, but about meeting the future needs, interests, and goals that are defined by the couple themselves. By framing the problem in terms of needs, interests and goals, parties are likely to see their dispute as a mutual problem that they must work together to solve. They now answer the question: how do we both get our needs and interests met? How does our family get its needs and interests met? Advocacy in the Collaborative Model encourages parties to look behind their opposed positions to determine the motivating interests. In doing so, the parties often find alternative solutions that meet the needs of both sides. Collaborative advocacy pays attention to balance, listening and being creative. Collaborative advocacy creates an incentive to work together, acknowledge the other, to be authentic and realistic. This kind of collaboration can occur only in an atmosphere that is respectful, transparent, and mutual; and one that incentivizes caring about the other party’s point of view with the removal of the 3^rd party decision-maker. While being hard on the problem and soft on the people seems to be a contradiction, it is this contradiction that promotes better settlements and preserves needed relationships. Who knew that removing the 3^rd party decision-maker could make such a difference! In Part III, I will explore how the power of neutrality is the secret sauce to a successful collaborative divorce.