Collaborative Law Archives | Page 24 of 26 | Collaborative Law Institute

May 17, 2013

The most common mistake I have seen couples make during divorce might surprise you. It’s something that is done unknowingly. It’s done with good intentions. It’s something our culture has taught us to do.

So what is it? It’s choosing an attorney before choosing a process. When confronted with the reality of separation or divorce, your first step may be to ask friends, co-workers or family members for the names of good family law attorneys. Seeking a referral from a trusted acquaintance seems to make sense given the extremely personal nature of this legal event. It certainly is preferable to doing a Google search.

It’s important to realize, however, that, in addition to having varying degrees of competence, different attorneys use diverse methods of conflict resolution. A well-intentioned family member or friend may recommend a litigation attorney who is most comfortable in a courtroom. If you think you will need a judge’s help in reaching a fair resolution, you should look for a lawyer with this particular skill set. On the other hand, if you are more concerned about the impact your separation will have on your children, and prefer to maintain more privacy and control during the process, Collaborative practice may be a better process option for you and your family. If that’s the case, you and your spouse or partner should look for attorneys who specialize in the Collaborative process.

Separation and divorce are among life’s most challenging events. Choosing the right process first, then attorneys, is the safest way to proceed.

May 17, 2013

Many recovering alcoholics claim that the wisdom of The Serenity Prayer saved their life. I have found in my practice that the wisdom contained in this simple prayer can also serve as an essential guide for helping people through a difficult divorce. The Serenity Prayer, which asks for the serenity to accept the things you cannot change; the power to change the things you can and the wisdom to know the difference, provides an important framework for dealing with almost all difficult situations. Divorce almost always creates unfortunate realities that lie outside our control; the fact that you will not see your children on certain days; the reality that your family income will now be spread through two homes; and many other stubborn truths. These realities cannot be changed and, in the end, the ability to find acceptance and serenity is a worthy goal. Divorce also requires people to summon courage to address daunting challenges; finding ways to co-parent when you are angry or scared; learning to manage new financial challenges; or trying to communicate effectively in painful situations. People who find this courage in divorce are much more likely to achieve their goals. Finally, gaining wisdom about which areas need acceptance and which challenges require us to act courageously is often the ultimate challenge in a divorce. While some of this wisdom may come from divorce sources, some of the wisdom can be gathered by finding people you can trust to help you focus your time and energy on your most important goals. One thing I like about the Collaborative Divorce Process is the focus on giving people the tools they need to truly help themselves. The first step in the process is generally to help clients identify their highest goals. As the process evolves divorcing couples are counseled to accept the things beyond their control so that they can focus their attention and limited resources on the things that truly matter. Clients who truly commit themselves to these principles can move from chaos to a new sense of order; sometimes even a deep sense of serenity. In any case, I have found that giving people the opportunity to gain wisdom about when to “let go” and when to work for change is the most important part of a divorce attorney’s job.

May 16, 2013

“I hope we can be friends.” This is not an uncommon wish of one or both people when going through a divorce. Sometimes, however, there is a lot of pain and anguish going on for at least one of them and significant negative energy between the couple. “How did we get like this?” is another frequent question I hear in my practice. So how do we answer the question and can you become friends? It is helpful to think about how relationships develop in order to answer the question. I heard Isolina Ricci, speak to a group of mental health professionals and attorneys about her research around divorce and families a couple years ago. She introduced a very helpful concept that I often share with clients to help them understand whether and how they can be friends.

When we meet people, we start with a business relationship. We use more formal language, make few assumptions, make clear agreements, have minimal expectations and are not very attached to or invested in the relationship. Ricci notes that we are private, explicit, cool and reserved. As we get to know someone and move to friendship, we are less formal, begin to make assumptions and have expectations and are therefore more invested in the relationship. When the relationship becomes intimate, we become very informal with each other, act based on assumptions formed from past experiences with the individual, give the benefit of the doubt, and are very invested in the relationship. Ricci notes that we are vulnerable, implicit, hot and intense. However, when we reach the point of divorce, the relationship has moved from one of positive intimacy to negative intimacy. We move from the positive qualities of intimacy to the opposite of those qualities, (i.e., shared to abused confidences, loyalty and trust to disloyalty and distrust, positive assumptions to negative assumptions, benefit-of-doubt to suspicion and blame, for example). What we need to realize is that when we are in a place of negative intimacy, we cannot simply go back to friendship. In order to become friends, we need to move from negative intimacy back to the business relationship and then rebuild to friendship from there. Ricci calls this the detox-negative-intimacy, where we reset to a business-like relationship. In the Collaborative process, we actually help people learn how to step back to the business relationship by modeling respectful communication, not make assumptions but ask questions to clarify, strive to be trustworthy, make clear agreements, create healthy boundaries relating to times and means of communication, and sticking to facts rather than being emotionally reactive. And this is very hard work! But, by making the intentional effort to go back to a business relationship, we can start rebuilding trust by honoring agreements, getting rid of unproductive assumptions by asking clarifying questions, and redeveloping a give-and-take relationship. Over time, it is possible to create a business like friendly relationship.

May 15, 2013

Divorce is a painful process. Often both spouses are disappointed with the marriage. One or both may feel betrayed. The time when spouses decide to divorce is the time when they likely feel at their lowest – about one another and perhaps about themselves. And yet, this is the time spouses are called upon to make decisions that will affect them and their children for the rest of their lives. A natural instinct in this circumstance is for self-preservation. One thinks of oneself and one’s own needs – something by the way which is vitally important to do. You want to continue parenting your children effectively, be able to live the lifestyle you became accustomed to, and have long term financial security. It is common at such a time to fear that if your spouse’s needs are met, your own needs suffer. And so one fights – fight in hopes that this in turn will enable one’s own needs to be met and prevail. But this is where one can go wrong. Listening to your spouse, really listening and simply acknowledging his or her needs is powerful. Recall the last time you felt heard, and how that affected you. By hearing your spouse, you increase the opportunity for your spouse to hear you. Solutions to issues emerge in such an environment which could not surface when one is in fighting mode. Do not sacrifice your goals and interests. Instead, clearly and deeply identify them, and at the same time listen deeply to those expressed by your spouse. You will open doors to solutions that were previously closed. The Collaborative Law process fosters such an approach for divorcing spouses. I encourage you to consider learning more about the Collaborative process if you are contemplating divorce.

May 15, 2013

Now that Minnesota has passed the Same-Sex Marriage Bill, there is much to figure out with regard to how laws will apply to same-sex couples and how laws will need to be amended to include same-sex couples. Now that same-sex couples can marry, they will also be subject to the laws for dissolving the marriage. The costs to the couples for going through the process might change because there will be a legal structure in place that now answers questions about division of assets and liabilities, as well as custody and parenting issue. As noted in the article in CNN Money about the cost of same-sex divorce, the cost for a “divorce” in states that have not recognized same-sex marriage has proven to be higher than states where same-sex marriage is recognized. The article notes that, “For an out-of-court settlement in states where same-sex marriage isn’t recognized, a same-sex divorce typically costs around $20,000, versus $10,000 for an opposite-sex couple, said Randall Kessler, a partner at Kessler & Solomiany Family Law Attorneys in Atlanta.” When children are involved, it further states that, “Same-sex couples who negotiate property division on their own but bring the custody issue to court are usually looking at $40,000, compared to $20,000 for opposite-sex couples, Kessler said. And a long, drawn-out court battle over custody could lead costs to jump to $100,000 or more for a same-sex couple, twice what it costs for an opposite-sex couple.” In my Collaborative practice, I have previously worked with same-sex couples dissolving their relationship with children. We did have to navigate the legal system with some creativity to address the issues of property division and parenting issues because they did not fit into the opposite-sex dissolution system. But the Collaborative process allowed them to be treated as a family system and reach a settlement that worked for everyone involved and it was less expensive than if it had been done through traditional legal system. Now that we have legalized same-sex marriage in Minnesota, we will have a system in place that will provide answers to the legal questions that arise in same-sex divorce. And the Collaborative Process will continue to be a responsive process to help manage costs, keep the decision making power within the family, and enable healthy transitions.

May 14, 2013

Compromise is a necessary part of life. Differences inevitably arise in our personal and work lives. Resolution of these differences generally takes place through negotiation. The goal of negotiation is to reach an understanding, which means compromise. calvin and hobbes cartoon

Is Calvin right? How would you describe a good compromise? Does it leave everybody mad? Is a compromise that leaves anybody mad really a good one? I don’t thinks so. Generally speaking, there are two recognized methods of negotiation:

Distributive bargaining, also known as “win-lose,” “zero-sum,” and “divide-the-pie” negotiation, assumes that resources are fixed and that future relationship between the parties is unimportant. Everyday examples include buying a house or car.

Integrative bargaining, also known as “win-win,” “interest-based,” and “expand-the-pie” negotiation, can lead to better outcomes when issues are complex and the parties value their future relationship.

Divorce typically involves multiple, complex, ongoing issues, including parenting, property and cash flow. Divorcing couples, especially those with children, are interested not only in a fair settlement, but also in having a comfortable post-divorce relationship. They want to be able to co-parent their children effectively. Most want to put family members and friends at ease without having to take sides. They also want to be able to participate in graduations, weddings, holiday gatherings and other social events without the angst that they have seen their divorced friends and family members experience. Traditional divorce processes encourage the parties to take positions on various issues, exchange settlement proposals, and, ultimately, either make compromises or go to trial. Compromises are made and one or both parties are mad. The Collaborative law process, however, uses interest-based negotiation techniques to help them to achieve these interests. Use of integrative bargaining encourages them to express their goals, which more often than not are shared goals. Once the relevant information has been gathered, the parties have the often-difficult conversations about their fears and hopes. They are encouraged to generate and evaluate potential settlement options. Agreeing to a plan for the future requires compromise by each party. But because the compromises follow open, cooperative discussion and are made for the benefit of the family as a whole, they can leave everybody hopeful about the future … not mad.

May 13, 2013

There is such a thing as a Do-It-Yourself Divorce. Not that I recommend it, but it’s out there. As an attorney who focuses on Family Law, Mediation and Collaborative Practice, I discourage this route to end a marriage, mainly because of details that can be missed. My definition of a Do-It-Yourself divorce is one in which you and your spouse are handling the entire legal process without any attorney help. This includes gathering information, making decisions, and completing the legal paperwork and processing that paperwork with the court. This is not something you should be doing without help! Perhaps surprisingly, there are many people who do indeed choose this path: to divorce without the help of an attorney. Especially for those with no children and little to no assets or debts, and likely a shorter marriage, it’s not uncommon. There are free forms available on the Minnesota Supreme Court website that can be printed and used. However, in the following circumstances, clearly an attorney would be helpful: if you have children; significant assets or debts; if you own a house and/or land; if you have been married for many years; if one spouse earns a lot more money than the other. So, after you determine it is a good idea to procure an attorney to ensure the specifics of your divorce, what next? Are you looking for a courtroom battle? No, of course not. Then why not consider a Collaborative Divorce? What is a Collaborative Practice divorce, anyway? The most basic definition requires that both spouses have attorneys and everyone signs an agreement not to go to court. The idea is to settle the matter without ever setting foot in a courthouse. Even in a Collaborative Practice divorce the paperwork would be filed at the courthouse, but the attorneys and the clients would never need to have a hearing or even go to the courthouse. The paperwork would just be filed by mail. Collaborative Practice divorce is an out-of-court settlement process where the attorneys are hired to settle the case and not to go to court and where other neutral professionals often help on the case to provide neutral meeting facilitation, child-focused input or special financial expertise. Collaborative Practice means more than just the technical completion of the divorce process. It means a commitment to settling the case out of court. It means using neutral experts help educate clients about the unique emotional, child-related and financial circumstances of their particular case and to explore potential settlement options. For Collaborative Practice professionals, being a member of the Collaborative Law Institute of Minnesota means regularly participating in additional training above and beyond their underlying professional continuing educational requirements. We do this in order to focus specifically on the client experience and out-of-court negotiation and settlement. As with most things, of course, you get what you pay for. While a do-it-yourself divorce is possible, if instead you are looking for a cost-effective, quality process, take a look at Collaborative Practice divorce. You will be rewarded with a high-quality method that includes professionals that take extra care and training to learn ways to resolve cases outside of court and neutral professionals that will help educate you about your specific circumstances and help you explore your options, all while agreeing not to set foot in a courtroom.

May 10, 2013

Almost every potential client I meet with wants to minimize the negative effects of divorce on the children. So many couples want to consciously have a healthy co-parenting relationship. And as parents, we know our kids better than anyone and should be able to make decisions about what our children need. Over my years of practicing family law, I have also learned that children benefit from having a voice in the process and an opportunity to feel heard. And they need a safe place to talk about what they are struggling with during the divorce. Not surprisingly, kids do not want to tell mom or dad things they think will hurt their feelings yet, they can feel torn, even with the best of intentions by both parents. What we know is that kids have undivided loyalty to both parents. They can say very conflicting things to each parent (if the parents compared notes between them) yet, it was their truth each time they said it. They are afraid sometimes to speak about what they need, because they don’t want to “make waves” or cause sadness. When I went through my divorce, my former spouse and I worked with a Neutral Child Specialist in the Collaborative process. After meeting with the specialist and talking about our kids’ temperaments, developmental needs, sibling dynamics and our concerns, the specialist met with our kids once together and then individually. We then had a feedback session that provided us with some great insights by and about our kids that we used to create our parenting plan. We learned what we were doing well, where our kids were struggling, what they worried about and how we could better help them. We knew some things already, but also learned a lot while hearing things framed in a positive and constructive manner from the neutral. Then, about a year and a half later, my son (then almost 10) asked when he could go back and talk to that woman who helped us with our divorce. Rather than pressing him about what prompted the request, his dad and I set up an appointment with him to check in with the Neutral Child Specialist. Low and behold, he was feeling a lot of stress each week because there were too many transitions between houses. We thought that our kids needed to see us each regularly but learned that the number of transitions was really hard on him. So when we met together with the specialist, we created a new plan that kept us regularly involved in the kids’ lives, but decreased the number of transitions from 7 to 4 every two weeks. Our son was worried that one of us would think that he didn’t like spending time with us if the time changed and that he was choosing one parent over the other despite having a great relationship with each of us. We were so glad that he had someone he felt safe with in voicing what wasn’t working for him and he could ask for help. It was so much easier for him to talk to a neutral person, rather than worrying about how we might take what he was saying wrong. It was so helpful to hear from the specialist and have a safe place for us to problem solve. This is how the collaborative process helps keep children in the center, but not in the middle.

May 9, 2013

An attorney representing a client going through collaborative divorce is much more than a legal adviser. The attorney is often a confidant, emotional support system, sounding board, voice of reason, teacher, and financial adviser. Indeed, a collaborative divorce attorney is a “guide.” The Sherpa people in Nepal inhabit the area surrounding Mount Everest. They have become natural guides up the mountain due to their native knowledge, experience in the region, and superior genetic disposition to function in high altitudes. Like lawyers in divorce – they have gone through this before and they are skilled in the tools necessary for success. Most individuals only experience divorce once. A good collaborative attorney has experienced divorce many times – as a guide. They have honed their skills and can “sherpa” or guide clients through this process in an efficient and successful manner. I often ask my clients to think back about their wedding. How much of the wedding was legal? It is often a spiritual, emotional, familial, and sometimes a financial endeavor. The legal piece, however, is more minimal. Perhaps you signed some papers a day or two later and mailed them into the state? A divorce is not all that different. Attorneys should advocate and guide their clients to make decisions in their own best interest. However, the attorney role, much like the wedding itself, is multi-faceted and often not solely focused on legal advocacy. A divorce may feel like a long uphill road, like climbing a mountain. A client needs to find an attorney who they trust in all the roles that attorney will play. A good collaborative attorney should be with you on that journey – guiding you up that path to resolution and peace.

May 9, 2013

I had a familiar conversation recently, this time on the golf course. As with life, golf is both precise and random: precise because there are exactly 18 holes to play, and random because a golfer never quite knows how the ball will fly from time to time nor with whom the starter will pair you up to play. We were paired with two great golfers who both happened to be named Sean.

Sean #1 asked what I did for a living. I gave him my elevator speech about being a Neutral Child Specialist in Collaborative Team Practice and he said, “Wow, that sounds awesome…..it must be really hard work.” My response is always that sometimes it’s hard work, but mostly it’s very rewarding to help families make the difficult transition from married to unmarried with less acrimony and stress for kids. Sean got a faraway look in his eyes and said, “I can sure see that.”

What he was seeing in his mind’s eye, I can only imagine. But often I will hear from young adults with whom I share my work that they wished Collaborative Team Practice had been available to their family when their parents were getting divorced. I have yet to meet anyone who said, “Well, I for one am very grateful that my parents’ divorce was highly acrimonious and adversarial because it was so character-building for me.”

We can’t pretend that ending a marriage will be a pain-free proposition, especially if there are children involved. Divorce is a life crisis for all family members. Collaborative Team Practice is designed to help keep the crisis of divorce from ever becoming a trauma for a child, because there is a profound difference how each impacts the child’s resilience and sense of hope.

If you are a golfer, here’s another way to think about it. Collaborative Team Practice is both precise and random: precise because there is a structured, supportive format for the process and random because of unique family circumstances and unpredictable challenges that arise from time to time. But the pairing of a family with a Collaborative team has great potential value. Collaborative Team Practice helps parents keep their eye on the ball and the ball on the fairway, away from hazards and deep rough where it could easily get lost.