In a recent collaborative divorce case, we learned from the clients that a tax liability of about $60,000 would be owed if they did not get their divorce by the end of the year. It was only a few days before Christmas and past the informal deadline set by the court for submitting final documents for a 2013 divorce. Adding to the challenge, my client had just changed her mind about a key provision in the financial settlement. I had already prepared and circulated a draft of the agreement which had been reviewed by our clients and an expert who had helped them with planning and financial issues concerning their special needs child. Now it all seemed to be unraveling and I fought against the urge to find someone to blame and prove it wasn’t me (I bet these thoughts crossed the minds of the clients and others on the team). Instead, we got to work on the problems as a team. The attorneys met with the expert concerning the special needs child and reviewed her suggested changes, made phone calls to our clients for approval, and drafted the new changes into the agreement. The child specialist who had worked with the clients during the collaborative process reviewed the suggested changes and made adjustments in the parenting plan which would be part of the final legal document. We also had some preliminary conversations with our clients about the proposed change my client wanted in the financial settlement and shared our clients’ views. The proposed change concerned the timing of the sale of real estate and the neutral financial expert who had worked with us during the collaborative process had been contacted about this issue. We checked calendars with the clients and the financial neutral and scheduled a meeting–unfortunately, the husband’s attorney was not available at the only time which worked for the rest of the team and the clients. We agreed to meet and the attorney for the husband would be available during the meeting by phone and email. We also needed to get a judge assigned to our case. The Joint Petition, which had been prepared in the beginning of the collaborative process, was filed with the court, which got us an assigned judge. The attorneys discussed strategy and we agreed that the husband’s attorney would take the lead in the calls requesting an expedited court process. There were a number of complications, including the fact that the judge was leaving on vacation that day. I listened in on the calls and was happy to hear that the judge’s clerk, after consulting with the judge, agreed to email the agreement to the judge once it was filed and the judge agreed to review it while on vacation. We still needed a final agreement on the financial settlement. At the meeting the next day, the financial neutral took the lead and discussed the consequences of the proposed change, which would also affect the funding for education for their children. Options were considered and discussed. I was present at the meeting but had agreed on a ground rule with the other attorney that I would refer to her all questions of substance from her client. As we developed the terms of the final agreement, the substance was shared with that attorney in phone calls and emails. I prepared the final draft of the agreement with the new terms, the clients and attorneys (one by email) signed, and it was filed with the court that day after an all morning meeting. The judge signed the final document and the clients were divorced in 2013. The key reasons for our success in working through the challenges: 1) The clients and professionals focused on solving the problems rather than assigning blame for the problems. 2) Clients and professionals relied on the strengths and expertise of different members of the team. 3) Trust among professionals allowed for flexibility and candor in the process. 4) Clients kept uppermost in mind the big picture goals for the family as a whole.
Stu Webb, who thought about collaborative divorce first in the early 1990’s, and is considered the founder of collaborative law, loves jazz. So do I. I listened to my 9th year of fabulous jazz music at the Detroit International Jazz Festival over Labor Day weekend, and also listen to jazz at the Dakota Jazz Club in Minneapolis. I have also been healed by a medical team at the Mayo Clinic in the 1980’s. I see a link between these practices –it’s collaboration. What makes collaborative team divorce like jazz and team medical practice? 1) Specialized trained professionals who bring unique skills to the team. In collaborative practice, the mental health professionals, financial professionals, and attorneys all have received unique training and experience. Jazz musicians–singers, sax players, trumpeters, drummers and others have all been trained in their own instruments. In the medical model, doctors specialize in different areas, nurses, and technicians have unique expertise. 2) The added value of collaboration by a team. Their unique skills and voices coming together give an added value, advice and music that could not happen without all of them together. For me, the Mayo medical model diagnosed a problem that required a detailed history of my several generation’s family medical history, plus specialists’ expertise and brainstorming together. Also, creative experiment with my diet (this was the 1980’s when diet and nutrition were not generally regarded as a mainstream medical approach). 3) Improvisation and creativity. Jazz musicians improvise, connect and play off each other in ways that could not happen with orchestrated works or solo compositions. Collaborative practitioners improvise based upon the immediate needs and realities of the families and children, and listen to the other professionals, connect with them, and create new options for the family. Medical teams creatively experiment, in my case with my diet, and find new solutions to medical issues. This is the power and music of collaborative practice.
I recently saw the new Woody Allen film, Blue Jasmine. It stars Cate Blanchett and Alec Baldwin as a couple who live the high life and then the low life following divorce. The story line and themes in this movie seemed true to me based on my work with many divorcing couples, not just those who are wealthy. There were the underlying issues in the marriage–the husband’s cheating, both with sexual affairs and financial fraud, and the wife’s complicity through passivity and claimed ignorance (although she knows more than appears). There was denial by both of the problems, which included mental health and drinking issues. For the wife in this movie, her loss of self and identity following the separation and divorce was shattering and, in the end, her emotional choice to revenge resulted in enormous cost and loss to both of them. I am not saying that all divorces follow all of these themes in this movie. Like an opera, the movie highlights some dramatic truths about human nature and patterns in relationships. One pattern is that problems during the marriage which have not been addressed can pop up and control the divorce process, sabotaging efforts to reach a settlement. This doesn’t mean that a couple has to “fix” all the troubles leading up to the divorce, but could require acknowledgement of the problems and work toward a future that addresses the realities of their situation. So, for the couple in Blue Jasmine, it would be addressing the mental health needs and possible alcoholism treatment for one or both, college education for wife, and a top notch criminal defense attorney for husband. The instinct for revenge, which often causes hurt to both in the divorce, can be defused in a collaborative divorce process which focuses on the collective outcome for the family as a whole. In Blue Jasmine, that would include the outcome for their son, who was hurt by the divorce, and for the parents.
I recently viewed a TED video about the impact of divorce on children. Professor Tamara Afifi, a professor at the University of California Santa Barbara, presented the results of her research. Here are some of her findings: CONFLICT BETWEEN PARENTS, NOT DIVORCE, HARMS KIDS Conflict between parents during marriage can be more harmful to children than a divorce. The differences between children of divorced parents and parents who are still married are not that great. What makes a difference is whether the conflict between parents continues, whether they are divorced or still married. Children are hurt most by parents in conflict. DIFFERENCES IN DECADES The impact on children of divorce in the 70’s, 80’s and 90’s has been different. In the 1970’s, there was a higher impact on children, which she attributes to the fact that divorces then were the result of bad marriages and more conflict. In the 1980’s, the impact was lower because people were divorcing for reasons having more to do with personal growth and self actualization. There may have been less conflict and better communication. In the 1990’s, the impact has been higher which she suggests was due to the closer relationship children had with their parents, communicating daily, and more involved in each other’s lives. Children became more involved in the divorce because they were generally more involved in their parents’ lives. NEED BOUNDARIES WITH YOUR CHILDREN There is a danger with this closer, more involved relationship between parents and their children. Children should not be burdened with their parents’ hurt or anger at the other parent or put into the role of messenger. One child described her mother as her “best friend” who asked her daughter for advice about an affair. Kids shouldn’t have to deal with this. A child shouldn’t be asked to “remind your mom” or asked “why doesn’t your dad tell me” about something. This puts them in the middle of the conflict or forces them to align with one parent. Establish boundaries about what is the adult conversation and what is the conversation with children about the divorce. AVOID HURTING YOUR CHILDREN DURING DIVORCE What can divorcing parents do to lessen the impact on their children? Work together on a co-parenting plan which redefines your roles following the divorce, work with a child specialist to establish the boundaries between adult and child issues in the divorce, improve your communication with each other, defuse emotions, and refuse to engage in bad mouthing the other parent. In the collaborative divorce process, child specialists and coaches can help you in all of these areas.
A recent article, “For gay couples, divorce comes with extra costs” describes the difficulties some people have faced in getting a same-sex divorce. Some of the difficulties identified have been addressed in Minnesota’s recent same-sex civil marriage legislation and others are not unique to same-sex couples. Here are the problems identified in that article and my thoughts. Problem: Courts haven’t figured out how to handle these new same-sex marriage divorce cases. The recent legislation in Minnesota addresses this issue by making it clear that all existing laws dealing with “marriage” now apply to the new same-sex marriages. This includes all laws concerning divorce which have been in effect for decades. The courts in Minnesota will apply the same divorce rules and procedures for divorcing same-sex marriages. Problem: Location, location, location. Many couples travelled to a state recognizing same-sex marriages in order to be married but now reside elsewhere, in a state where same-sex marriages are not legal. States that don’t recognize same-sex marriages won’t grant a divorce to a couple whose marriage is viewed as unlawful. Can the couple return to the state where they married to get divorced? Most states have a residency requirement, typically residing for six months in that state, before a divorce proceeding may be initiated in that state. The Minnesota legislation addresses this problem. It allows a divorce action in Minnesota even if neither party resides in Minnesota if the civil marriage was performed in Minnesota and neither party resides in a state which recognizes same-sex marriage and allows divorce actions for such marriages. So, if a same-sex couple married in Minnesota and later moved to Wisconsin where same-sex marriages are not legal, they can be divorced in Minnesota. Problem: Time together: Reality vs. legality. Many same-sex couples lived together for years before being able to legally marry. During the years or decades before marriage, they acquired assets, bought homes together, shared expenses, acquired debt, and commingled their finances. Yet, under traditional divorce law, it is only assets and debts acquired during the marriage that are considered. This is also a problem for straight couples who live together for years before marrying or who never marry. When their relationships end and they need to divide their assets and debts, divorce laws don’t help them. Unless they entered into a prenuptial agreement addressing how these assets and debts acquired before the marriage would be divided, or if never married – a contract addressing these issues, they would have a difficult time finding an efficient legal remedy for their situation. Litigating these issues in court will be expensive. These issues can be addressed in the collaborative process, which is not limited to divorces, and where people with unique problems and issues not adequately addressed in traditional law forums can reach agreements. Once agreements have been reached, these agreements can be filed with the court and made into enforceable court orders.
The myths and misunderstandings about divorce could make you act in ways that would hurt you in your divorce. Here are some of the most common myths and how actions based on those myths could impact the final divorce terms. 1. LEAVE THE HOUSE, YOU LOSE IT. A home purchased during the marriage is a marital asset whether or not you are living in the home at the time of the divorce. Its value is included in the final property division. You don’t lose that value by leaving the home. In fact, most couples have a hard time living in the same residence during the divorce and many people need to separate during this time. However, who is living in the home at the time of a court hearing on the issue of temporary occupancy of the home will have an advantage. While the divorce is going on, it will be harder to get a court order transferring temporary occupancy away from the spouse then residing in the home. 2. EMPTY OUT THE BANK ACCOUNTS. What you owned before the divorce started is what will be included in the marital estate to be divided in the divorce. You and your spouse will most likely get one half of your marital assets in your divorce. If you fear that your spouse will empty out your accounts, it is acceptable for you to take out one-half and deposit these funds in a new account in your name alone. Taking all of the funds will be negatively viewed by the court. 3. QUIT YOUR JOB, LOWER YOUR INCOME. If you have earned income during the marriage, your income history will be the bench mark for any court orders on financial support, including child support and spousal support. If you have a job, don’t quit it or take action to reduce your earnings. The court can impute income you would have earned if you had not taken those actions. Both of your potential earnings are considered in any court decision on support, so even if you have not been earning income recently, your potential earnings are relevant. If you apply for jobs and show recent history of efforts to seek employment, the court has a basis for a finding on whether or not you could earn potential income. If the result of your efforts is obtaining employment, that is a good result. For most families facing the increased costs of two households, extra income will be needed after the divorce. You should be maximizing, not minimizing income. 4. TAKE THE KIDS AND RUN. Unless you or your children’s physical safety is at risk, hiding them from your spouse can actually hurt you in a custody dispute. You can move out with your children but, unless their safety is at risk if they have contact with your spouse, you should make sure your spouse has contact and parenting time with them after the separation. In a disputed custody case, an important issue will be how each parent supports the children’s relationship with the other parent. If you have kept the children away from your spouse and denied parenting time, that could hurt you in a custody case. 5. SPEND A LOT. Your standard of living and spending during the marriage is what the court will look at, not inflated spending after the divorce starts. If spending around the time of the divorce is unusually high, the court has the power to call that spending a dissipation of marital assets and can reduce the property settlement awarded to the spouse found to have dissipated assets. Again, most families have more expenses for two households after a divorce and so you should be reducing, not increasing your spending. Your friends and relatives may have advice about what you should do if you are thinking about divorce. Get some advice from a professional experienced in divorce issues before you take action.
Prenuptial agreements – “What’s Love Got to Do With It?” For people planning their wedding, the thought of entering into a prenuptial agreement may seem unromantic and pessimistic. It addresses what would happen if your marriage doesn’t work out. But a well thought out prenuptial agreement can give you and your spouse control over the terms of your divorce, if that should happen, helping you avoid future litigation, and it also can be a process for discovering your expectations and views about financial issues. In Minnesota, to enter into a valid and enforceable prenuptial agreement, you must sign a written agreement before two witnesses and a notary public before you are married. The agreement must include a full disclosure of each person’s income and property and a statement that each has had an opportunity to consult with legal counsel of their choice before signing the agreement. The better practice is to enter into such an agreement well before the wedding date so each of you has an opportunity to consult with their own attorney. The issues which are most often addressed in prenuptial agreements are deciding how property and debts existing at the time of marriage and acquired during the marriage will be divided in the event of divorce. Some agreements address whether there will be spousal support (alimony) awarded in a divorce and how much will be awarded. These agreements are generally enforced by Minnesota courts unless there are extreme inequities resulting from enforcement at the time of the divorce. Agreements on child custody and child support are not enforceable as part of prenuptial agreements in Minnesota. The court in a divorce examines the best interests of the children at the time of the divorce in deciding who should have custody, what the parenting time should be, and how much child support should be paid. Couples who have acquired substantial assets before the marriage, who have been married before and have children, or who want to preserve their estate plans for their adult children from previous marriages, enter into prenuptial agreements to ensure that their goals and financial expectations are followed in the event of a divorce. These are not the only couples who may need prenuptial agreements. For example, with the recent legalization of same-sex marriages in Minnesota, some-same sex couples contemplating marriage may need to consult with legal counsel to learn the differences in how their income and property will be treated once married under Minnesota law and whether a prenuptial agreement may be appropriate. Professionals are available for consultations on these issues. The collaborative process gives couples (not the court) the power to shape their future financial destiny. The collaborative process also ensures that the needs and interests of each person are addressed, with full disclosure of financial information, advocacy for each person and neutral professional financial and other advice. Making sure each of you have the information you need is what love has to do with it.
Disagreements about finances, spending and debt are leading causes of divorce. How to pay for or divide the marital debt has been a major issue for divorcing couples during the recent recession. Here are seven tips on how to deal with debt in a divorce: 1. IDENTIFY YOUR DEBTS. Review your credit report which you can obtain for free once per year from each of the major credit reporting agencies: Experian, Transunion and Equifax. You need to make sure you know what debts are in your name and your spouse’s name. 2. ARE THE DEBTS JOINT OR INDIVIDUAL. You and your spouse’s credit reports will tell you which debts are joint with your spouse and which ones are yours alone or spouse’s alone. 3. PAY OFF JOINT DEBTS. As much as possible, pay off debts which are joint. If a debt continues as a joint debt after the divorce, you can each be pursued by the creditor even if your divorce agreement makes one of you responsible for payment of the joint debt. 4. CONSULT WITH A DEBT COUNSELING SERVICE. If you and your spouse are unable to make the monthly payments on your debt, a reputable debt counseling service may be able to help you negotiate a payment plan with your creditors. Some recommended debt counseling services are The Village and Family Means. 5. BANKRUPTCY OPTION. If you have substantial debt and not many assets, consulting with a bankruptcy attorney may give you another option for dealing with debt. 6. PLAN TO END JOINT DEBT LIABILITY. If you can’t pay off all your joint debts, develop a plan to end your joint liability including credit cards, mortgage, lines of credit and other debt. 7. ESTABLISH AND MAINTAIN YOUR CREDIT. If one spouse has no individual credit card, explore ways to allocate resources to that spouse to obtain an individual credit card. If one spouse is planning to buy a new home and assume a new mortgage, make sure that actions like closing credit card accounts do not result in a lower credit score for that spouse which could jeopardize the purchase of a new home. In a collaborative divorce, couples work with neutral financial specialists like Dave Jamison who has helped couples who are refinancing mortgages or obtaining new mortgages during the divorce process.Working with a neutral financial specialist, both spouse’s interests are addressed. This avoids the problems caused when one spouse makes a unilateral decision or action which adversely affects one or both of their credit scores or abilities to secure financing in the future. Even if debt was a problem during your marriage, there are ways to “part” your debt in divorce.
Debra Messing recently expressed guilt over her divorce and the fact that she and her husband couldn’t give her son “the fantasy” that her parents gave her in a marriage that was now ending. She said she and her husband both wanted to make it work and last forever but weren’t able to make it “go the course.” If you and your spouse are uncertain about whether you want to end your marriage, there are resources for you to use before making the final decision about a divorce. This is not marriage counseling for people who already know they want to continue their marriage and need help in making that happen, but ambivalence counseling which helps couples figure out whether they really want a divorce. Some trained mental health professionals who do this work in the collaborative divorce community are Brian Burns and Karen Haase. If you ultimately decide to get divorced, this ambivalence counseling work may help you understand each other’s perspectives about what happened during the marriage and the differences that led to your decision to divorce. Ambivalence counseling could also result in your decision to stay married or hold off the divorce. If, after counseling on your uncertainty about whether or not to be divorced, you decide that you do want to be divorced, don’t dwell too much on guilt or past mistakes in your marriage. Yes, you can learn from mistakes made, but assigning guilt made for past mistakes won’t be a strong foundation for final agreement in your divorce. You may have different memories and perspectives about why the marriage ended and may not reach agreement on these issues. Instead, you should focus on the present and future issues you face – where you will live, what your parenting schedule will be, how you will pay for your living expenses in two households and how you will divide your assets and debts. Focussing on the future and problem solving about these issues will be more productive for your family than attempting to assign blame or allow guilt to guide your decisions in a divorce. During the collaborative divorce process, these feelings of guilt or anger are acknowledged and addressed but don’t drive the process. A couple who had these feelings of guilt and anger during their collaborative divorce have shared their experience in a video which follows the steps in their divorce process.
My parents are 87 years old and I have recently had to face their realities which include limited mobility, increased health problems, and questions about whether they should stay in their home, go to an assisted living facility, or get in home care. It has been hard to talk to them about these issues in part because they are still mentally sound , happily living independently at the end of a dirt road at the edge of the Superior National Forest and enjoying the birds and wildlife which they can only see there. It was hard to make the phone call to them last winter suggesting that a drive at night to a special event one and a half hours from their home was not a good idea. Recently, after my mother suffered several falls resulting in hospital stays, it was hard to talk to her about the assisted care options . I found a good resource with the Minnesota Senior Link at 1-800-333-2433. I talked to someone who gave me a list of resources in their area. These are decisions made by families every day. My family includes my parents, sister and brother, and extended family. Luckily, we seem to be able to communicate and agree on what needs to be done. But there are some families where there are substantial disagreements and conflicts, or no communication at all. For those with disagreements, the collaborative process offers a way to resolve disputes. See www.collaborativelaw.org for professionals who can help you resolve these disagreements.