Collaborative Law Archives | Page 2 of 26 | Collaborative Law Institute

August 22, 2020April 5, 2023

Divorce is never an easy topic, nor should it be an easy answer – but what about during a pandemic? Is disrupting your family’s life to separate into two households the right thing to do when a pandemic is taking place?

There is never going to be a “right” time to divorce. Once a couple figures out either on their own or through counseling[1] that their problems cannot be solved, a constructive divorce is often the next step.

Courts are open and those cases that can be resolved without any court hearings are moving more rapidly than ever through the now virtual court system. The collaborative divorce model has been around for awhile, but using it now during the pandemic can make your divorce more efficient, while still bringing in the professionals as needed for your particular situation, including financial planners, mortgage brokers, child specialists, divorce coaches or mediators.

Collaborative may be the right process for you if you want the following:

To stay out of court,
To work things out on your own,
To make a plan for the future for both parties looking at your family’s interests and needs,
To maintain a private, safe environment to exchange ideas and options,
To put your family first.

Collaborative Divorce is not going to be about winning, revenge or punishment. Rather the collaborative process requires both attorneys and parties to focus on interests and goals instead of positions through a series of joint meetings. Traditionally these meetings were held in person, but the same meetings can now take place virtually and everything can be handled online. Starting the process now may be just as good as any other time.

You can find more detailed information about collaborative practice and look for professionals to help get you started at the Collaborative Law Institute of Minnesota.

[1] Discernment Counseling is a type of limited scope counseling that helps couples or individuals determine whether to work on their marriage or keep moving towards divorce. See University of Minnesota Couples on the Brink project.

Author: Angela Heart, Heart Law, LLC

Angela is a collaborative family law attorney at Heart Law, LLC. Her mission is to enable and empower divorcing couples to have a smooth transition that is family focused during a life changing event. To find more information about Heart Law go to www.heartlaw.net.

August 18, 2020April 5, 2023

Collaborative Divorce is a method of divorce that started in Minnesota in 1990 and has now spread to more than 25 countries. The initial defining principle of Collaborative Divorce was that the lawyers would withdraw if the matter became adversarial and went to court. That focal point rapidly led to an evolution toward Collaborative Team Divorce in which Collaborative lawyers team up with Child Specialists, Neutral Financial Professionals, and Coaches to help clients achieve a deeper resolution of their issues.

While the team approach has been very effective, hiring “full teams” of four to six professionals for each case can put the cost of Collaborative Divorce beyond the reach of many families. Therefore, Collaborative Divorce is now evolving once again to offer families an “a la carte” approach that allows them to design a “Collaborative Approach” that meets their needs.

The Board of the Collaborative Law Institute of Minnesota (CLI), the world’s first Collaborative Law association, wrestled with this issue for more than a year before coming up with a description of this “a la carte” approach that struck a delicate balance between maintaining the integrity of the Collaborative Model and offering affordable alternatives to a broader range of families. Both authors of this article have been on the CLI Board at different times during the maturation of this discussion.

How does collaborative practice work?

In creating these new options, the Board of CLI realized that one of the guiding principles of Collaborative Practice is that it is first and foremost an out-of-court process with a disqualification agreement (meaning that if either person decides to go to court, the lawyers cannot represent the clients in the court process, and the parties will need to find litigation counsel).

This provision allows everyone to focus on problem-solving on behalf of the clients and their children, and reach a settlement that works for both parties and any children. Collaborative Practice is a voluntary process, focused on transparency of information; instead of taking legal positions on issues that draw battle lines in the sand, we use “interest-based negotiation” in which the clients focus on explaining and fleshing out their most important needs and concerns – rather than their theoretical legal rights – so they can reach a deeper resolution.

Generally, we have found that having an interdisciplinary team of professionals, including not only lawyers, but also mental health professionals, financial advisors and more, operating outside the shadow of the courthouse, often provides clients with the best opportunity to achieve these goals and interests. However, we also have come to realize that it is not financially practical for many clients to engage a full team of professionals.

Building a more affordable, accessible model

Therefore, we decided to develop ways in which clients can have many of the benefits of the Collaborative Process (i.e. an out of court focus, interest-based bargaining, and interdisciplinary practice), without having to engage the full “bundle” of collaborative professionals.

The Collaborative Law Institute of Minnesota (CLI) has defined itself as an organization of multidisciplinary family law professionals who value resolving family law matters:

With respect, dignity, and integrity
In a child-centered and family friendly way
Using a customized process based on client needs
With a holistic blend of legal, financial, parenting, and relationship expertise
Focusing on equitable and sustainable solutions
Limiting the scope of services to out-of-court problem solving

Bearing all this in mind, CLI has developed a new website that includes new detailed information about a la carte services that we can provide, grounded in the shared values and skills listed above.

The website includes a variety of examples of how clients can use any of the individual professionals in a limited scope, out-of-court manner, in cases such as the following:

When couples have resolved issues that must be addressed in their divorce, and they would like a settlement-oriented lawyer to draft all the necessary legal paperwork.
When couples are working through a divorce mainly on their own, but would like the assistance of a neutral child specialist – a licensed mental health professional specializing in child-development and family systems, who focuses on helping families craft a child-focused parenting plan.
When individuals completed a divorce some time ago and would like input from a neutral child specialist or neutral coach: a licensed mental health professional specializing in communication, relational and conflict-resolution skills, regarding family issues related to their children, or their co-parenting relationship, or ongoing communication with one another.
One spouse (or both) would like a neutral financial advisor, a professional with strong financial acumen who can run calculations and options without investment in a particular outcome for either person, to assist in determining options for dividing property in a divorce, but are otherwise comfortable handling the divorce on their own.

In addition, families can combine portions of the Collaborative Process so that families can have “mini-teams” to fit their particular situation. Quite often the type of “mini-team” that is hired may depend on the first professional they select in the a la carte system. For example:

Clients who chose to start by working with a neutral financial advisor for a few sessions, may choose to have a child specialist help them on the parenting portions, and simply bring in the lawyers at the end to review and finalize the process.
Similarly, a couple with relatively simple financial issues could work with a child specialist or coach at the beginning and bring in lawyers where needed.
Clients who begin in the more traditional manner of starting with lawyers may either have the lawyers assist through most of the process or have the Lawyers “step back” while other team members assist with the majority of the work.

While all of these options involve some professional assistance, couples can sometimes complete the process for as little as $2000-$4000, and still have the benefit of finding deeper resolution, as well as hopefully developing skills to help them beyond the divorce. Of course, cost always depends on how ready clients are to reach settlement.

Following the uniform standards developed to define and regulate Collaborative Practice by lawyers, we have held to the principle that in order to be defined as a “Collaborative Divorce” there must be lawyers for both spouses involved, who agree to withdraw if the divorce goes to court.

However, couples who choose to be self-represented can still get assistance from other Collaborative Professionals (who work with the parties but will not go to court). Similarly, if a client chooses to work without lawyers in an a la carte manner, it is not technically an unbundled “legal” service, but a version of unbundling with some of the components of a Collaborative Team. Whether it is necessary to find other terms for describing these options is still an unresolved issue.

For the time being, our focus has been on trying to create tools for families that will give them as many options as possible, and to make at least some, if not all, of the benefits of the Collaborative model affordable for a wider range of families. We commend this approach to those seeking affordable expert assistance in the divorce process.

Learn more at www.collaborativelaw.org

ABOUT THE AUTHORS
Louise Livesay
Founder, Livesay Law Office

Louise Livesay, JD is known for her ability to problem-solve on behalf of her clients in a way that maximizes the best outcome for the entire family. Understanding that most families facing divorce or uncoupling want to have effective co-parenting relationships and be treated with respect and feel heard during the process, she has created a practice focused on fostering healthy families as they transition to a new configuration through non-adversarial methods, such as the Collaborative Process and Mediation. For more information about his practice go to www.collaborativelawmn.com

Ron Ousky, JD, is a Collaborative Attorney and mediator who has dedicated his practice to making sure that families facing conflict understand their options. He believes that families facing divorce are in a unique situation to make a better life for their families and he is dedicated to helping them find the resources to build a better future. For more information about his practice go to www.ousky.com

Tagged with: Collaborative Divorce • collaborative divorce process • Collaborative Family Law • Hiring Divorce Attorney • Limited Scope Legal Services • Unbundled Divorce • Unbundled Divorce Services • Unbundled Legal Advice • out of court • Problem Solving • Respectful divorce •Mediation •win-win outcomes

January 23, 2020April 5, 2023

There has been some buzz about the new film on Netflix called Marriage Story about a couple, Charlie and Nicole, with a son, Henry, going through divorce. I decided to watch it since this is my area of practice and a prospective client referenced it last week in a consultation. It started with the couple stating all these things they loved about the other person with pleasant images of life together. I was ready for an uplifting movie, until about 8 minutes in, when I learn that the couple is in a divorce meditation session and Nicole refuses to read her list out loud of what she loves about Charlie.The mediator says he likes to start mediation with a “note of positivity” to set the stage for working together. Noble idea, but is that the best way to start? I don’t know any mediators that start that way. I wondered if people now think that is how all mediations start. While I too try to start from a more positive place, I start by asking clients to identify the goals they each have for the process and outcomes so we can see if they have any common visions for the future in separate homes. I am amazed how often people have common goals around their kids and other outcomes and many times support goals that are specific to one person. But I don’t think I would start by asking them to share a written list of qualities they love about their soon to be former spouse. That is more appropriate for marriage counseling. What a different dynamic that sets in mediation. When one person wants the divorce and the other one doesn’t, it starts the process from a place of internal conflict. It was visible in the movie. I just don’t think mediators do that and it paints an inaccurate picture of the process. But, I appreciated how Charlie and Nicole were trying to work together in mediation. Unfortunately, the film spent very little time on the topic of mediation. Instead, at the 20 minute mark, the story moved in the direction of the Nicole, played by Scarlett Johansson, hiring the LA attorney Nora Fanshaw, played by Laura Dern, a sexy, savvy attorney that you want to trust, but your gut tells you, “Not too fast.” When Charlie, played by Adam Driver, goes to find his own attorney, feeling distraught that Nicole suddenly switched directions and hired an attorney, the first attorney he talks to recognizes that Nora is on the other side, clearly knowing how she operates, and says his rate is $900/hr, he needs a retainer of $25,000 and they will need to do forensic accounting for $10,000-$20,000. Everything indicates an expensive, high stakes fight. He then starts asking all these questions to elicit information so he can immediately start strategizing about all these angles to take and “Win!” Charlie realizes what he is walking into, leaves and eventually lands on hiring Bert Spitz at $400/hr, played by Alan Alda, after there is no one else to hire because Nicole has met with all the other “good attorneys” in order to get them disqualified from being able to meet with Charlie. But in the end, reasonable sounding Bert isn’t tough enough against Nora so, Charlie decides to go with the $900/hr attorney afterall. Well, the whole thing devolves into a knock down drag out court battle over money, custody (including a custody evaluation), and the attorneys revealing every dark secret about the other parent and “slinging mud,” in order to convince the judge to rule in their favor. Your heart breaks for Charlie and Nicole, but especially for Henry, caught in the middle. And then I heard my own voice say, “That is exactly why I am a Collaborative attorney, instead!” It is clear that neither Nicole nor Charlie ever thought they would go down that vicious road but what is clear, is that the divorce took on a life of its own. Nicole left everything to Nora to handle and decided not to question how she operated. What was also clear to me was who they each chose to represent them had everything to do with how things went. Charlie and Nicole were not asked what was important to each of them or what they wanted for Henry. From the moment they met the attorneys, the attorneys were building their case, setting up the chessboard and thinking about what moves to make to win the game despite the casualties. Why does that matter? When an attorney can only think in the win-lose mind frame, that they have all the answers and that everything has to follow what they think is the right path, you are giving up all power over your family and your life. Most people I meet with want to be in charge of these major decisions that will impact their life and family. It is important to stop and think about what is important for you, your kids, and your family. You are still part of a family system, even when you are getting a divorce. You are just changing the family configuration, setting new boundaries and expectations, and figuring out how to divide the assets and manage cash flow living separately. Working with attorneys who understand this, who are focused on problem-solving and reaching a win-win outcome out of court, makes all the difference for clients and their family. And if you have two attorneys who trust each other professionally, that is an asset to you and your spouse. The Collaborative Divorce process offers just that: a respectful, transparent, child-focused, problem-solving out-of-court approach for divorce. Ask yourself what story you want your children to say about their parents’ divorce when they are 25? Choose wisely.

February 10, 2019

Wouldn’t it be great if families could complete their divorce in a conference room rather than a courtroom? That’s the thinking behind the Collaborative Process and what makes the Collaborative Law Institute of Minnesota so helpful to divorce professionals and divorcing families. Because of TV shows and just our general culture of “fighting” for our rights, we often think that we have to spend endless amounts of money and fight in court to get a divorce, but that simply isn’t true. In the Collaborative Process, we help families reach agreements without ever setting foot in a courtroom. The Collaborative Law Institute of Minnesota (CLI) trains professionals in areas of law, finances, relationships and mental health to work with families outside of court to reach durable and understandable divorce agreements that work for their families. Law school is focused on training attorneys for inside the courtroom. That’s why we need CLI to train attorneys and other divorce professionals to help clients outside the courtroom. This is a major paradigm shift for the legal profession, but it shouldn’t be so surprising that this is the help and advice that families need and want. Because, let’s be honest, who really wants to go to court?

August 18, 2018

If you want a respectful, affordable and uncontested divorce without breaking the bank, you’ll want to consider a Collaborative Divorce.

Do you have a reasonable level of trust and ability to work together with your spous if you have the help of professionals? Does your family makes $60,000 or less per year? If so, then you should apply for the Sliding Scale Fee Program of the Collaborative Law Institute of Minnesota. One of the most frustrating topics when thinking about divorce is “How much will this cost?” Thankfully, when you come to agreements in our Sliding Scale Fee Collaborative Divorce program you will almost certainly pay a fraction of what you would pay with any other professionals charging full price for their divorce services. Collaborative Divorce saves you money. How is that? First, we apply best practices to help you make the most of the time each professional spends working on your case. We think of this as using the right tool for each step of your divorce. Each of you will have your own attorney for legal adivce and advocacy, but you will do most of your work with specialized mediators to make efficient progress. This makes the process less polarizing and more focused on finding win-win solutions that meet both spouse’s needs as best as possible under the circumstances. Since our professionals don’t have to worry about fighting in court on your case, they can focus on helping you find the best solutions. They don’t waste time drafting time-consuming, hurtful and wasteful affidavits and other documents for contested court hearings for clients who are fighting. Second, in the Collaborative Divorce Sliding Scale Fee Program each professional works at a significantly reduced hourly rate. If your family makes $60,000 or less per year, then our Sliding Fee Scale provides that each professional will help you at a significantly reduced hourly rate (often a fraction of their normal hourly rates). For example, outside of the Sliding Scale Fee program, an attorney in the Minneapolis area will typically charge around $250-$350 per hour. In our program, the highest hourly rate is only $60 per hour. Our attorneys and mediators do not go to court in this program. They are here to help you get everything done in your divorce without setting foot in a courtroom. That frees them up to provide an exceptional Collaborative Divorce process to clients. There isn’t any other program like this in Minnesota. What makes this program different? There are only a few sliding scale fee attorney programs and they only provide one attorney on a sliding scale fee. There are no other programs that provide each spouse with a sliding scale fee attorney and specialized mediators to work with the couple on financial and parenting schedule issues, all in one package. In summary, this Sliding Scale Fee program provides a team of professionals so that we can apply the right professional for each step in the uncontested divorce process. Who is this program designed for? We can help couples who have income within our sliding fee scale and who are willing to pay a reduced hourly rate. This is not a pro bono program with free attorneys. It is significantly less expensive but it is not free. Also, you will need to be willing and able to communicate with your spouse and work together with mediators to resolve your financial and parenting time issues in your divorce, with the help of your own attorneys who will be assigned as part of this program. Who will you be working with? You will be working with attorneys, mediators and other professionals who are members of the Collaborative Law Institute of Minnesota who volunteer to take part in this program and accept a lower hourly rate for these cases. What’s the first step? What should I do next? The first step is for one spouse to submit a Sliding Scale Fees Intake Form (found on the Sliding Scale Fee page of our website). Then the Sliding Scale Fee Committee will reach out to you within a few days to help decide if your case is a good fit for the program and what you can do next to move the process forward.

June 15, 2018

Have you ever wondered about how to do something that felt daunting but maybe not super complicated (baking a perfect soufflé, building a patio, learning to golf) and decided to follow the advice to “Just look on YouTube!” So you find several videos on YouTube, select the one in your language, and set off to do this thing on your own. How difficult could it be? The Catch: It’s generally harder than it looks on YouTube Those demonstrations are done by people with lots of experience and expertise, who make it seem effortless. And this will be the first time you’re doing this. Perhaps all will go well, but if it does not, your understandable reactions could include: “Why didn’t anybody tell me soufflés need different baking times and temperatures at different altitudes! How many times will I have to experiment to get this right?” “What am I supposed to do now? I hit a big tree root while digging the patio foundation?” “Golf has a lot of moving parts! I really do need lessons.” Because we don’t know what we don’t know, getting the right kind of specialized or expert help at the beginning of a project can be very valuable, can save time and expense and will help prevent frustration and anxiety. What Does this Have to do with Divorce? When ending a marriage, many couples hope to minimize conflict, expense and time by choosing an uncontested divorce process. These range from DIY divorces using down-loadable forms to hiring professionals who do alternative or out-of-court dispute resolution. I am one of those professionals, a neutral child specialist who assists parents and children in a variety of ways during the transition from marriage to getting unmarried. Though I can work with any process, I often work on Collaborative Practice teams offering respectful, out of court, problem solving support for the legal, financial, relationship and parenting issues that are part of a divorce. Those of us doing this work know that there can be complications, unexpected issues, lots of moving parts, and pieces of information not necessarily available to the general public about how laws work. We especially like to help families at the beginning, to set people up for success. I know there are many couples who do not need or want professional services to have a respectful and equitable divorce, and I wish them all the best! But if it becomes more complicated than it appeared on YouTube, please do not hesitate to call.

May 20, 2018

April is Autism Awareness Month, the two month anniversary of the Marjory Stoneman Douglas High School shooting, and the 19^th anniversary of Columbine. Why talk about ASD and school shootings in the same sentence? And why a divorce blog? I will get to that. But as a lawyer-mom, these two issues are at the forefront of my mind, and probably the minds of many parents and educators these days. We should rest assured that our kids would know what to do during a lock-down because they have spontaneous drills throughout the year, right? Ugh…what am I saying? The fact that kids NEED lockdown drills is downright outrageous! Nonetheless, I wondered what the younger kids are told and what happens during these drills. Well, lucky me, when I recently volunteered in my son’s elementary school classroom, the school had a lock down drill. And one word sums up the experience: chilling. Lockdown drills are very different from the fire and tornado drills we had as kids. I’m sure everyone remembers the fire drills – exit the classroom quickly and get away from the building. Or the tornado drills – go out to the hallways, away from the doors and windows, and cover your head with your hands. Up until about 1999, THOSE were the drills Minnesotan kids experienced. In fact, most the time, much to our teacher’s chagrin, we were laughing and joking around. A lock down drill, however, has a very different vibe. The kids must be EXTREMELY quiet. They huddle into a specific area and are instructed to remain eerily still. This had been a bustling class (and school) just moments before, but now it was so quiet, you could hear a pin drop. This was a class of 30 second graders, so I was stunned at the deafening silence. Just when I thought it was over (it seemed like forever, but was probably two minutes) someone rattled the door handle. Forcefully. Not a peep from the kids, but I jumped. Luckily, they didn’t see me or they might have erupted into giggles. We had to continue to remain quiet and motionless. Interestingly, I don’t remember what happened next; that is, I don’t recall if there was a bell or another signal indicating the drill was over (I think I was sort of in shock). The kids went about their business, working on their projects, like it was no big deal. Only it was a big deal. At least it was to me and the other adults in the room. I just looked at the staff, wide-eyed, and shook my head. School lock downs are now a reality for school-aged children. It makes my heart ache. I asked my son that evening why they have lockdowns and he nonchalantly said it was in case anyone wants to break into the school. That was it. Simple enough. But as we grown-ups know, there is nothing simple about this. My son is a “mover and a crasher,” so I was relieved he made it through the drill. But I thought about the other high-needs/special-needs kids in his school. For any child who has physical needs or doesn’t cognitively understand the drill, simply can’t be quiet and remain calm, needs to move, or overreacts when accidentally bumped or touched by a classmate, what would that child do in this drill? Or, God forbid, in a REAL situation? With more and more kids being diagnosed with ASD, what protocols are in place for them? Is there a special section in their IEP about drills? There ought to be. This made me think about special-needs kids whose parents are going through a divorce. The teachers are aware of kids’ needs (or should be). So, too, should the divorce team. A child’s symptoms often reemerge or worsen when they are stressed, which could happen during parental conflict and/or separation. Child specialists can work with the parents and the child’s pediatrician and/or therapist to help create a parenting plan that is in the child’s best interests. Like it or not, otherwise fit and loving parents need to work together for there children’s sake. Fortunately, the Collaborative process can help parents really focus on their kids, by putting them in the center, rather than the middle, of the divorce process. Every family situation is unique. Every family and every child deserve a creative plan to help move them forward, restructure, and get to a new “normal.” Drill and lockdown protocols included.

April 8, 2018

Last 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

March 18, 2018

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.

-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.

February 22, 2018

There is a “new” way of going through divorce that puts clients in charge. It’s called “Unbundled Legal Service” and it means that the clients get to have legal advice without having the lawyers take over the full case. This allows clients to get legal advice, and whatever else they truly want, without having to pay lawyers to do things they could do themselves. The word “unbundled” may seem like a strange phrase if you did not realize there was a bundle in the first place. Most clients do not realize that, when they retain a divorce lawyer in the traditional model, the lawyer is authorized (sometimes even required) to engage in the full range of services, from information gathering, to responding to all relevant communications, to reviewing all documents related to the case. Unbundling lets the client choose which things the lawyer will do for them; and which things they will do for themselves. This provides an opportunity to have more control over cost and, sometimes, acrimony. Lawyers charge high hourly rates. When they are providing important legal advice or analyzing complex issues, these hourly rates can be a very wise investment. The decisions you make during your divorce can impact your finances by tens of thousands of dollars and, helping you make important decisions regarding your children may be priceless. On the other hand, paying your lawyer to wait at the courthouse, or drive downtown, or gather your bank records, does not make economic sense. In addition to helping clients save some of their resources for themselves, unbundling can free up funds for clients to spend on other important resources, such as a child specialist to help them co-parent their children, a financial expert to help them make good financial decisions, a coach to help them with communication, or a therapist to help them adjust to the emotional impact of the divorce. While unbundling of legal services is being heralded as a brave new trend, it is, in many ways, a throwback to an old idea; the attorney as “legal counsel” – a concept that was much more common in earlier days. It is only recently, in the more adversarial climate of the past century, that the notion of lawyer as “hired gun” has become widespread. Frustration with both the acrimony and expense of the adversarial approach have caused many divorcing people to forego getting legal advice altogether. Unbundling, or the renewal of attorneys as legal counsel, is allowing people to have the best of both worlds; sound advice combined with control over cost and acrimony. Unbundled divorce has many different variations. One popular form of unbundled divorce is called Collaborative Divorce, where clients choose to have the lawyers focus solely on settlement. Because 97% of all cases settle, hiring lawyers to focus only on settlement helps clients make sure that their legal fees are spent on things that matter to their future. To learn more about Collaborative Divorce go to www.collaborativelaw.org and www.ousky.com.