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adult-adventure-background-220147Last time I wrote about some of the realities of the divorce process and some of the different ways by which a final divorce decree can be created.  It may have come as a surprise to learn that a couple has enormous legal autonomy to create their own decree, but it’s a fact.

So how does a couple with limited knowledge of tax planning, deferred compensation, and employee stock options figure out what they have and what to do with it?  Is it good for a two-year-old to be parented the same way his eight-year-old brother and 12-year-old sister are?  Where do I find out?  And how do I bring that information into the conversation without increasing the conflict?

In a word, the answer is, “Neutrals.”  Financial neutral, neutral child specialist, neutral coach.  Why neutral?  Because a neutral works for both of you.  If you’re fighting about financial issues, the odds are pretty high each spouse will want to hire their own expert to tell the judge what’s REALLY going on with the parties’ assets and debts.  Would you be shocked to learn that two such financial experts with very similar training and experience can offer opinions that are many thousands of dollars apart?  Would it surprise you to know that husband’s financial expert could care less whether wife can meet her monthly budget?  Or whether wife’s expert cares that husband is going in the hole every month after paying guidelines child support?  Would it make more sense to handle the children’s expenses so that the family’s income covers as many of their needs as possible?  Would you prefer to be able to choose whether your property division emphasizes cash, or retirement?  Are you comfortable with risk, or do you need maximum security, and what combination of assets best achieves either goal?

And always, there’s the same question:  If goal X is crucial to achieve, what are you willing to give up in order to get it?

How about parenting?  Do you “want the kids 50/50?”  What would that look like?  Are their parents driving them between homes every day?  What’s that feel like to those children?  To your 12-year-old?  To her two-year-old sister?  Is it okay for them both to sleep in your home for five nights straight?  Why or why not?  Is there an impact on the youngest if she does?  Is their other parent only a parent 50% of the time?  Are you?  Do you envy their relationship with their other parent?  Does it show?  Or do they know you are genuinely happy that they had a good weekend/week/Christmas vacation with Mom/Dad?  Do any of these questions really matter?

Short answer:  Yes, they’re at the heart of your divorce.

Although you changed the diapers, nursed, fed, bathed, dressed, played, vacationed, listened, lectured, or just . . . beheld, you may not know everything you need–or want–to.  How does the mind develop?  What is a child’s sense of the world?  How do they see others?  Or you?  And when does that start?  When does it change?  When do they conceive of themselves as “other?”  What gives them comfort?  Makes them feel safe?  Are those the same things that reassure their parents?  What makes them anxious?  Should you find these things out?  Can you make up for lost time or hurtful words?  Can they forgive you?  Can you forgive yourself?  Most importantly, can your lawyer give you the best answer to these questions?

Or would you rather learn them from a child psychologist with decades of experience?  A neutral child psychologist.  Someone whose role is to be the voice of your children, a conduit from their heart to yours.  An information source whose information comes directly from your kids, with their permission. A safe person for them to tell.

[Intermission]

Can you talk to the person you married?  You know–that someone that you used to love.  Can they hear you when you do?

That’s why you need a neutral coach.

If you and your spouse decide to divorce in a Collaborative process where you have to make the decisions, where you have to talk to each other, don’t you need to be heard?  Even if you’re not in a Collaborative process, 95 percent of the cases settle without a trial.  In most of those, lawyers discourage clients from direct communication with their spouse.  In fairness to my colleagues, that’s usually because the clients don’t know how to do it constructively.  They’re hurt.  They’re pissed.  They want to be real clear on that point to anyone within earshot.

But if you approach the divorce process as a problem-solving exercise, are you going to let your “mouthpiece” tell your spouse about your priorities?  Will it mean as much, will it be as believable, as if you say it yourself?  If you’re going to acknowledge their good parenting, aren’t you the only one who can say it?

If you have to revise your concept of what would be “fair,” would you like to be able to hold on to as much of it as possible?  Or will you blow up, throw the baby out with the bath water?  A coach can help you find the words, and the room in your heart to say them; can hand you the towel to dry the baby off.

Coaches constantly remind us that a “good divorce” is not a zero sum game.  Yes, he had an affair!  Yes, he failed to acknowledge you at every turn.  Yes, she constantly criticized the way you did things, things she never would have attempted.  Yes, “too much” was never “enough” for her.  And, and, and . . . But, are you going to save for college?  Can you send your daughter to language immersion camp?  How do you talk to him about this shoplifting arrest?  Can you count on her to take the kids if you’re called out of town on business?  If the chemo knocks you out, will he be able to get them to school and their games?  They cut his overtime; can you cover their lunches this month?

Think it won’t happen to you?  Think this was settled in the Decree?  Guess what?  Life happens.  My clients have asked all those questions of their Ex’s, and many others besides.  How will you ask?  How will you answer when you are asked?  Coach.  Coach.  Coach.

Did I mention a Coach?

Four’s a crowd

So why all these people?

Simple:  More bang for the buck!

 What do I mean?  Just this:  When you have a job to do, who do you ask, someone who specializes in it, or someone who dabbles?   If the dabbler costs twice as much, what then?  You ask the best person qualified to do the job!  You shouldn’t ask your lawyer to be your psychologist.  You shouldn’t ask your therapist to be your lawyer (although it sure would be nice to find an experienced lawyer who charges $180 an hour, right?).  For every hour your coach helps you find answers, you saved yourself $100 over having your lawyer do it, give or take.  Put another way, if you expect your lawyer to help you find those answers, you will have overspent and perhaps gotten an inferior product into the bargain.  Yes, this is the lawyer speaking.

Next time:  The Power of Neutrality

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I am a Counselor at Law. I have been for more than 37 years, although I’m not sure how valuable my counsel would have been then. Today, most of the questions I’m asked center around divorce. -My wife/husband wants a divorce.pexels-photo-258510 -How long will this take? -How much will it cost? -I want full custody of my kids. -Will I lose the house if I move out? -She/he had an affair! -I had no idea! I hear these comments hundreds of times a year. And then I’m asked, “So, what happens now? How does this work?” The answer is perhaps not what you expected, and it sounds like this: “Not the way you think; kind of like you think; and, it depends on what you’re trying to do.” Here’s what I mean. Last things first. What are you trying to do? A divorce is an “official” determination that two people aren’t married any more. That’s an element of every divorce. It’s the minimum definition. The determination takes the form of a court order, which is required to talk about certain subjects, which I’ll get to in a moment. The question of what you’re trying to do is directed toward how that order affects your life after you’re divorced: For example: Do you have kids? Who do they live with? How often? Who supports them? How? When do they see his family? When do they see hers? How do they experience Christmas/ Hanukkah/Kwanza/Easter/Passover/Thanksgiving/Halloween/July 4th/and other significant times? What happens if their parents start a new relationship? Or two? Will their parents divorce them, too? That court order I mentioned can address all those questions, or very few of them. It might incorporate a 15-page Parenting Plan that discusses all these things. It might have two paragraphs that says one of the parents has legal and physical custody of the children, and the other parent will pay the custodian $1500 every month. And the parents will alternate having the children on major holidays. And that’s it. A divorce is ‘kind of like you think,’ in the sense that a judge has to sign that order, even if the couple doesn’t agree on what should be in it. Maybe they never agree. Maybe they come to an agreement eventually. If they never agree, a judge will tell them how it’s going to be. Period. Does someone win while someone loses? Often, both of them feel as if they’ve lost. How is it ‘not like you think?’ People are often surprised to learn the judge who signs the decree doesn’t have to make all the decisions. In fact, the only decision the judge really has to make is whether to sign the document a couple says they want as their decree. It’s true! Before that decision is made, the judge will need to be satisfied that the document includes everything it should–all those ‘certain subjects’ I referred to. But it’s much less work for a judge to agree with a couple’s decisions than it is to make the decisions for them. Every couple who gets a divorce in Minnesota has the absolute right to make their own decisions about those ‘certain subjects.’ I can repeat that, or you can read that last sentence over again. And one couple’s decisions may not look like any other couple’s in the history of the state. Which is okay. I am asked, “Well, what does the law say?” I answer as best I can, but often the question results from a misunderstanding of the law’s role. That role is not so much “You MUST do this,” and closer to “If you can’t work it out, this is what’ll happen.” Think of the written law as a safety net that keeps one spouse from taking serious advantage of the other. What it means is, if a couple can reach their own agreement on those ‘certain subjects,’ the court will usually honor that agreement. Yes, there are conditions. You can’t agree to something that violates public policy. An example: a couple can’t agree that neither parent will ever pay child support to the other. Why? Lots of reasons, mostly having to do with reimbursing the government if you need government assistance. What you CAN agree to is what’s called a “reservation” of child support. When the court reserves support, it means no money changes hands. Usually, I see that in families where both parents earn enough to support their children independently of the other parent’s financial assistance. Another condition: the court would like to know the couple got some legal advice, and legal representation is better. The ‘certain subjects’ include the marriage, real property, personal property, children, support of the family, which includes the children and either parent, financial assets, and debts. But divorce decrees can include conversations that disclose why the couple reached the agreements they did, and how those met the goals they have for their family, now and in the future. Those decrees may read much less like a fight and more like a strategic planning document. How do you create that kind of divorce decree? It helps if you can bring a little different perspective to the task, what some lawyers call a “paradigm shift.” The original paradigm, the impression we had when we left law school, was that a divorce was first and foremost a legal dispute, like any other. Sure, it had overtones of emotion and psychology and money and relationship, but if we could get the legalities straight, we’d be doing our job. Decades and cases later, many of us have realized that a divorce is more accurately described as an emotional, psychological, financial, and relational matter that has some legal overtones. We realized that by shifting the model of what we were doing, focusing on the realities and not the theories of the matter, our clients and their families got results that fit better, lasted longer, and let them experience the benefit of their family structure, which changed, but didn’t disappear. Not everyone is independent enough to do this. Some folks have been so hurt before and during their marriage, that their own pain is all they can see. Working with someone they hold responsible is an impossibility. For couples–people–who need someone to decide, the judge can and will make those decisions. It would be a different and arguably a better world if a divorcing couple had resolved their personal issues before starting their divorce, but it only rarely happens. But for couples who have enough insight to know divorce is not a substitute for therapy, control of the divorce outcome can be very much in their hands. Next time, I’ll discuss how couples can get the information and the perspective they need to make those often complicated decisions. Spoiler alert: it takes a village–or a team.
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Most of my work as a lawyer involves representing clients in Collaborative divorces, and most of those cases involve the use of neutral experts to advise the couple on finances, child development, and communication/relationship dynamics. The idea is to provide them the best professional information in a non-adversarial setting so that they can make well-informed choices when resolving their divorce issues. Very often, the first of these professionals a couple visits will be their neutral coach/facilitator, whose responsibility, if hired, (among many others) will be to help couples appreciate where their communication styles get in the way of decision-making. I’m fortunate to have some wonderful professionals available to serve my clients in that role. In recent years, the coach I work with most often is Lee Eddison, someone who embodies the art of compassionate listening, but who doesn’t hesitate to call a spade a shovel after more nuanced attempts at guidance have been unavailing. One of the assessment tools she uses is to ask each member of the couple to say three positive things about their spouse’s parenting ability. “He doesn’t suck,” doesn’t count, either. She knows that if someone can appreciate a positive contribution to the family made by someone they dislike, there’s an excellent chance they can have an interest-based conversation en route to a resolution. That’s not to say there aren’t other bumps in the road, or good reasons to end the intimate partnership. But the ability to appreciate that duality in their partner at a time when it counts–when you’d least like to–gives that appreciation a power and a significance it won’t have later. It has proven to be a fair bellwether of success in a Collaborative process. Very few individuals who go through a divorce are all good or all bad. There’s a saying in the court system that “In criminal cases, we see bad people at their best, and in family cases we see good people at their worst.” It’s a sound bite, of course, but it’s often true. For divorcing couples who can appreciate the good things their partner has contributed, the chances of escaping the not-so-good parts without making it worse are much higher.
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102284768As a confirmed New Yorker subscriber, I enjoy the cartoons as much as the writing. Indeed, the cartoons alone would justify my subscription. Earlier this year, there was a drawing of a customer addressing a florist. “I want some flowers that say, ‘Here! Have some frickin’ flowers!'” For a lot of couples about to enter into a dissolution of their marriage, the holidays are a time of high anxiety. Often, both spouses know it’s coming–soon–but call a truce in order not to wreck the children’s Christmas. According to some of my former clients who have done that, the whole holiday season felt like, “Here! Have a frickin’ truce!” Tense, hollow, sarcastic. Anxiety-ridden, courtesy of the Unknown. A close friend who knows about my practice once asked me, “What’s the most important thing you can tell someone who comes in to see you about a divorce?” “Well, it will depend on what’s most important to that person at that moment, but, generally speaking, I’d want them to know it’s going to be all right,” I said. “Isn’t that a little misleading? I mean, you don’t know anything about who they’re married to, or who that person’s lawyer is, or anything.” “Well, I know this: when they talk to me, they’re living in a situation that’s become unbearable, a situation they know very well. And it’s bad enough that they’re talking to me about an Unknown–the divorce–that they’d rather deal with. I actually did once ask a client who was complaining about how long it was taking and how much it was costing whether he’d like to dismiss the action and stay married. He looked at me like I had two heads. ‘Not on the longest day you live,’ he said.” So the goal was not an issue. By the way, that was before I began doing Collaborative cases. But my point is that the divorce itself will end some day, and probably in less than a year. And after it’s over, that person will go on with their life. Most of the time, the people who come to me know that I do mostly Collaborative cases, where the couples have to agree on what happens before anything can happen, and where the goal is to agree on all the terms of the divorce. So they each have to give their spouse a reason to agree to what they’re seeking. More importantly, they have many opportunities over the weeks of that case to refine the conversation, discover what’s at the heart of their goals, and explore different ways of satisfying their spouse’s interests. The upshot is that by the time they do reach all their agreements, they have talked everything through–usually multiple times–and they have a set of agreements they can live with. And things going forward are going to be all right! They can take some reassurance in that because their discussions were all based on their actual situation, not what they wish their situation was. They’ve spoken with their lawyers and they understand what the courts can do and what they won’t do. In the Decree, under “real estate,” the court simply can’t award to the spouse who had an affair “the hottest corner of Hell.” For one thing, there’s no legal description. But if their husband or wife insists that this is the only appropriate residence for them, post-decree, I know that person will never succeed in a Collaborative case. I also know that person won’t “succeed” in court, either. And, finally, I know that person could care less if things turn out “all right,” because their highest priority is to give back the pain they feel to the person who, they believe, caused it. They almost certainly will get more help from a therapist than a lawyer. But for the potential client who is most interested in ending their marriage, attending to their affairs, and starting a new life, history teaches us, time and again, that, really, it will be all right. At least, that’s what my clients tell me.
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186765081As I listened to the appalling news out of Ferguson, MO, last week, I was especially struck by two things: First, a veteran police officer, a retired chief of a municipal department, shared an observation that his officers made during unrest in his city, that when they were deployed in riot gear, officers invariably discovered that the situation became riotous.  But when they met protestors wearing only their regular uniforms, they were able to talk to them and defuse many situations. Secondly, early last week, Missouri Governor Jay Nixon put State Troopers under the command of Capt. Ronald S. Johnson, who grew up in the area, in charge of the police effort in Ferguson.  Capt. Johnson, as pictured on the front page of the August 15th N.Y. Times, wore only his regular Summer uniform.  He walked with protestors in the streets; he listened to them explain long-standing grievances.  And the temperature in Ferguson cooled perceptibly–before additional tear gas and rubber bullets reignited passions. I am not a cop.  But the retired police chief–and Capt. Johnson–and I–all know from long experience that you will find trouble if you go looking for it. Fortunately, my experiences as a divorce lawyer lack both rubber bullets and tear gas, but they are accompanied by strong emotions, usually expressed in the denigration of my client’s spouse.  My client recites how dishonest, abusive, or uncaring the spouse is; how neglectful or clueless he or she is.  It’s the opposite of the old lyric, “lookin’ for gold in a silver mine.”  If those negative emotions bubble over, they’re invariably met with–SURPRISE!–the same feelings on the other side! And the case becomes even more contentious.  The bigger waste, overall, is that the couple seems to believe that the family court system cares about this emotion.  Apparently they believe that if the fight becomes bitter enough, someone will “win”.  These folks could have been the inspiration for Elton John’s lyrics in “Honky Cat”:          “It’s like trying to find gold in a silver mine. It’s like trying to drink whiskey from a bottle of wine.” Collaborative Process was conceived as a problem-solving exercise, based on a belief that husbands and wives might put their children’s welfare before their own.  When I can get my client to take that leap of faith, s/he is often astounded to discover that, because they’re not spending the time fighting, both of them are able to make decisions that directly benefit the entire family.  When my client starts out believing that their spouse also wants to complete the process and care for their children, they discover–SURPRISE!–that the spouses do.  And when that happens, they’re more willing to listen to the variety of ways in which that could occur.  Time and energy  are now spent devising productive ways to reorganize their family. If you’re looking for peace by waging war, don’t expect to find it.  If, on the other hand, you start out waging peace . . .
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144313218It was actually my wife’s idea. Lose the clunky stand-alone bookshelf on the second floor landing and build in a bookcase that wraps around the stairwell. Four years ago, her father called a buddy with a sawmill up north. The buddy sold us an oak tree. Then he quarter-sawed it into planks, delivered it to my father-in-law’s shop, and in a matter of months, we had a stack of lumber that was milled to provide tops, bottoms, sides, and shelves of a bookcase. Some assembly required. “I’ll do the finishing,” I said. “I don’t want this to be a slap-dash job.” It wasn’t. Weeks turned into months. Months turned into years. The rift and quarter-sawn white oak was sanded. It was filled and sanded again. It was stained. It was varnished.  Multiple times. The varnish was sanded down to even it and provide a smooth base for the next coat.  And the next. And the next. “Are you ever going to finish those bookshelves?” my wife asked. “No sense paying someone to do something I can do myself,” I responded. This week, as her uncle and I measured, re-measured, plumbed and leveled and trimmed out and touched up the enormous room elephant that this project had become, I shared my frustration with a colleague. “I swear that’s the last time I volunteer on a home project!” I told him. “It’s not like I couldn’t do it. The finish work is gorgeous, if I do say so myself. But the time! I swear I would have been way ahead of the game if we had just hired someone to begin with.” “Kind of like a pro se divorce, isn’t it?” he quipped, referring to the 80% of divorces where the couples don’t use any lawyers to assist them. “As I recall, you don’t do a lot of wood finishing, do ya?” “Some” “Ya learned a lot ya didn’t know before, sounds like.” “The understatement of the year!” “Like I said, sounds like a pro se divorce!  Hey, I know ya got “skills,” but how much time did ya give up, and how much of it did ya have to do over ’cause ya didn’t get it right the first time?” “Don’t ask!” It’s not that I don’t know why those 80% try to do it themselves.  I get that!  Last week I helped a woman who did it herself.  She also transferred part of her retirement to her Ex.  But she made a mistake and had to do it over.  This time, the Ex had a lawyer handle the transfer order.  And she had me look it over to be sure it was all in order, which it was. I probably should have hired you in the first place,” she said when we were done.  “Thanks so much!” It had a familiar ring.
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I seem to be going through a “mourner phase,” these days.  Last month, I attended four funerals.  This month, a couple.  Frequently, these events were labeled “a celebration of life.”  Sometimes they were; other times, not so much. It’s not unusual for children or close relatives to speak at these events, describing the bond between themselves and the deceased, and how it was created.  Often, the speaker can bring that person to life, figuratively speaking, with their words.  The last thing in the world we ever expect to hear is that Joe was a mean, abusive so-and-so; he denigrated his wife, beat his kids, and has as much chance of getting into Heaven as Osama bin Laden.  Admittedly, none of the services I attended included such a speaker.  Although . . . One of them included an out-of-town relative who was a member of the clergy.  His memories of the dead individual brought to mind a temperance revival meeting, and really turned into a rant about how this relative had saved the decedent’s soul at the last minute.  To many in attendance, and this was NOT an evangelical group, it appeared the funeral in those moments had ceased to be a celebration of the dead man’s life and had instead become all about the relative. As I struggled with how inappropriate the funeral hijacking felt, my deja vu detector went off.  It took me a while to realize why.  As a divorce lawyer, I get to help officiate at the death of a marriage.  In the best cases, when a couple sees the wisdom of planning their family’s future together, those divorces can include a large measure of honoring that marriage, even if it stops short of an outright celebration.  The relationship that brought the children into the world can be buttressed and supported going forward.  The good things can be retained.  The bad parts . . . well, the bad parts are why they’re in my conference room. And then there are those who, oblivious of the relational aspects of the marriage that died, just want to go on and on, like the prodigal clergyman, and make the divorce all about them.  Their “rights,” their money, their property, even “their” children.  Losing sight of the Big Picture is an uncomfortable thing to witness, whether it accompanies the death of a person, or the death of a marriage.  When couples keep that Big Picture in mind, they can create a fitting memorial to the marriage that used to be, and honor the family that still is.
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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.
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6207-000165 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.
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Jenny McCarthy 2012Recently, I was watching The View on ABC. The panel was discussing forgiveness when co-host Jenny McCarthy brought up how her views about her Ex had changed. She and her husband, John Asher, had a son, but apparently there were plenty of hard feelings attending the 2005 divorce. McCarthy described a change she recently went through concerning her child’s father. “I think when you have a child,” McCarthy said, “you create a soul contract.” She went on to explain the concept in terms of being there to provide what your child needs. And recently, she said she had started to view the man she had been married to much more as the father of their son, and much less as the former husband with whom she had been in conflict. She was able to love him again, in that parent role, because their son needed his parents to have regard for one another. What was even more impressive was that their son picked up on the change right away, and clearly appreciated it. That concept, that the relationship roles shift during and after divorce, is a hard one to internalize. It can be excruciating to cease regarding a person as an intimate partner (with its attendant pressure to run in the opposite direction) and simply regard a former spouse–and appreciate them–as the Other Parent of your children, but that’s often exactly what your children need.