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By Melissa Miroslavich and Katrina Viegas

As collaboratively trained attorneys, we often find ourselves in a unique position—advocating fiercely for our clients while simultaneously collaborating with the other side to achieve a mutually beneficial outcome. It’s a dance we’ve perfected through our training in the collaborative process and mediation, and it’s a dynamic that serves our clients exceptionally well, especially when it comes to those sometimes-uncomfortable but essential conversations.

You might be thinking, “Uncomfortable conversations? About what?” Well, if you or someone you know is getting ready to say, “I Do,” let’s talk about prenuptial agreements—or as they’re legally known in Minnesota, antenuptial agreements. It’s a topic that often carries a bit of a stigma, conjuring images of distrust or a lack of romance. But what if we told you that, much like thoughtful estate planning, a prenuptial agreement can actually be an act of love and a foundation for a stronger, more financially harmonious marriage?

We recently found ourselves discussing Minnesota’s updated prenup law, which took effect last year on August 1, 2024. As two attorneys who believe in proactive planning, we immediately recognized the opportunity to shed light on how the collaborative process can transform this often-dreaded task into a positive and empowering experience.

Melissa – Let’s Talk About the ‘Why’ – What Exactly is a Prenup, and Who Benefits?

From my perspective as a legal advocate, a prenup is a vital tool for clarity. It’s a private, binding contract that two people of legal age enter into before marriage. It outlines what happens with your assets and debts if your marriage ends due to legal separation, divorce, or even death. I know, you’re thinking nobody gets married expecting to get divorced, but with financial problems being a leading cause of marital breakdown, having these conversations before the ‘I Do’ can actually strengthen the foundation of your relationship.

Katrina – And from the Collaborative Angle, it’s About Financial Harmony, Not Just Protection.

While it offers legal protection, the beauty of a prenup, especially when approached collaboratively, is its power to foster financial harmony. It’s not just about what happens if things go wrong, but about how you manage expectations and communicate about money during your marriage. For all couples, it can open lines of communication. But if you own a business, help with a family farm, or have children from a previous relationship, it’s especially critical to proactively address the needs and wishes of everyone involved—from your soon-to-be spouse to business partners and other loved ones.

Katrina – Minnesota’s Updated Law: The New Rules of Engagement.

As an attorney, I want to make sure people are aware of the latest changes in Minnesota law. Effective August 1, 2024, two big things happened. First, timing is everything. You now need to sign your prenup at least seven days in advance of your wedding day for it to be presumed enforceable. If you sign it closer than that, it’s not automatically valid. So, procrastination is out when it comes to prenups! Ideally, this process begins at least two to six months in advance of your wedding date, sometimes even earlier.

Melissa – And the Collaborative Spirit of ‘Fairness’ is Still Paramount, Even with Legal Shifts.

The second change impacts how ‘consideration’ is determined. While a prenup is a contract that requires some kind of benefit in exchange for entering the agreement, Minnesota now recognizes the marriage itself as adequate consideration for the prenup to be valid. What this means is, as long as all other legal requirements are met, the court won’t automatically scrutinize the prenup for ‘fairness’ to both spouses. However, in the collaborative process, we still work to ensure the agreement actually feels fair to both parties, fostering a sense of mutual respect and understanding that goes beyond legal technicalities.

Melissa – So, How Do We Get This Done?

When clients come to me needing a prenup, I always lay out their options, including a collaborative process or a more traditional process. The traditional path can involve each partner hiring their own attorney, one side drafts the prenup and offers it to the other side, and we negotiate. It can be effective, but sometimes adversarial. An attorney’s priority is to protect their own client’s interests, not the client’s relationship or future spouse.

Katrina – Or, How We Guide You to a Stronger Start: The Collaborative Approach.

And that’s where the collaborative process shines as the preferred path for many couples. Think about it: you’re planning a wedding, a celebration of two individuals joining their lives together in partnership. Why not choose a legal process that supports that same spirit? As collaboratively trained attorneys, we work with you, not just for you, to transform a potentially stressful legal process into an experience that can actually strengthen your relationship.

In the collaborative model, we help you:

  • Co-Create a Shared Vision: We facilitate open and respectful conversations about your financial future, helping you develop a vision for your marriage that aligns with both your individual and shared financial goals.
  • Receive Individualized Guidance in a Supported Environment: Each soon-to-be spouse receives individual legal advice about their rights and responsibilities. This isn’t about one person winning; it’s about both parties understanding their positions and finding common ground.
  • Bring in Financial Expertise: We often work with a collaborative financial professional. They help you identify and understand all your assets, liabilities, and cash flow, ensuring full and transparent disclosure. This level of understanding is key to making informed decisions together.

Ultimately, whether through the collaborative or traditional process, attorneys draft the prenup, seek consensus from both of you, and ensure it’s signed at least one full week before your wedding day. The benefit of the collaborative process is starting with your goals as a couple, and then drafting, not the other way around.

Want to learn more about how the collaborative process can help you navigate this important step before your “I Do”? Contact Melissa Miroslavich or Katrina Viegas for more information about collaborative prenuptial services and to schedule a no-cost consult. Both Melissa and Katrina have been accepted into the Collaborative Law Institute of Minnesota and are honored to serve on its Board of Directors. Katrina is the current Co-President and Melissa serves as Chair of the Public Education Committee.

About the Authors

Melissa Miroslavich is a dedicated and experienced estate planning and collaborative attorney. She expertly guides individuals and families through the often complex processes of planning for the future. With a compassionate and thoughtful approach, Melissa helps clients navigate sensitive matters, including collaborative prenuptial and postnuptial agreements, ensuring their wishes are honored and fostering peaceful resolutions. Her expertise in both legal strategy and collaborative communication makes her a valuable advocate and trusted advisor.

At Miroslavich Law, we understand that planning for the future requires careful consideration and a personalized touch. Whether you’re in the Twin Cities, or the surrounding areas in Minnesota, and need assistance with estate planning, business succession planning or prenuptial agreements, we are here to provide you with clear guidance and support. Contact Miroslavich Law today to take the first step towards securing your future and finding peaceful solutions.

Melissa Miroslavich, Estate Planning Attorney, Mediator
Miroslavich Law PLLC
Email: Info@MiroslavichLaw.com
Website: www.miroslavichlaw.com

Katrina M. Viegas,
Partner/Attorney & Rule 114 Family Mediator
Beaumier Trogdon Orman Hurd & Viegas Attorneys at Law, PLLP
4 West Fifth Street, Duluth, MN 55806
Ph: (218) 722-1000 | Email: kviegas@btolawyers.com
Website: www.btolawyers.com

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According to the authors of Influencer: The New Science of Leading Change (Joseph Grenny et al, 2013), there are 6 sources of influence: personal motivation, personal ability, social motivation, social ability, structural motivation, and structural ability.

I will explore these sources of influence as they relate to vital behaviors for co-parenting with less stress and more peace.

  1. Personal Motivation – Why does someone want to do something? Does it make them feel better? Many people experience overwhelming stress in high conflict co-parenting. This kind of chronic stress impacts health, work, and relationships. It definitely feels better to have less stress in one’s life!
  2. Personal Ability – Can they do it? Do they have to the skills? Communication and conflict resolution skills taught in our monthly co-parenting webinars can make communication less triggering between parents and provide new ways to successfully defuse conflict. We encourage parents to focus on working together to raise whole, healthy, happy children. Being in one’s own integrity with regard to respecting the child’s other parent and honoring one’s word to respect the parenting time schedule (which includes being proactive to communicate when a commitment can’t be met – running late at a meeting at work, or weather / or traffic interfere) helps parenting time transitions go more smoothly.
  3. Social Motivation – What are your peers doing? Are they fighting with their children’s other parent or are they getting along? In many northern European countries, it is the cultural norm that parents share parenting after separation or divorce. There is also a higher percentage of people having children who were never married. Though if they split up, they still commit to raising their children together.
  4. Social Ability is the way we enable these vital behaviors. In the area of co-parenting, this is where peer to peer groups can be so valuable. When people see other parents successfully navigating daily co-parenting, they are motivated to do what these others are doing. Children do not want to be caught in the middle of their parents’ conflict. That actually feels terrible for children. Some get aggressive and bully others because they themselves are hurting. Some become withdrawn and drop out of activities they used to enjoy with friends. Others turn their hurt inward and get into cutting, or experience eating disorders. It’s important that court-ordered therapy to address the child’s situation also include the parents so that family dynamics can be addressed and tools provided to the parents to improve communication and resolve conflicts.
  5. Structural Motivation – CLI is working to share collaborative practices across Minnesota so that more families can benefit from having less costly, less difficult separations. Collaborative services are available in all areas to support families – family law, mediation, finance, therapy, and on-going support through parent coaching to enable Dads & Moms to co-parent with less stress and more peace. This collaborative approach reduces post-divorce conflict.
  6. Structural Ability – Do you have the tools to SUCCEED with co-parenting?a. First and foremost, sign a Commitment to Co-parenting at the time of separation/divorce. As parents, it’s in your hands – you and the other parent of your children – to move beyond the bitterness of your separation or divorce and find the courage to mutually support your children in maintaining healthy, loving relationships with BOTH parents and the children’s entire extended family.

Here’s some sample language you can use:
Commitment to Care – I am committed to the long-term well-being of our children. I understand that continued conflict with my ex-spouse/partner is destructive. I will agree to reasonable boundaries and interact with our children’s other parent in a respectful business-like manner so that we can BOTH continue to love our children and remain actively involved in their lives. While our intimate, romantic relationship has ended, co-parenting is forever.

If there isn’t a commitment by both parents, what’s getting in the way? Recognize mental health issues, substance abuse, and domestic violence. Provide treatment and support during recovery.

Otherwise look at social motivation – What are your peers doing? It’s time to create a NEW cultural norm of Shared Parenting! The best way to have the court order Shared Parenting is to have been sharing parenting all along since the day the children were born.

b. Another vital behavior for successful co-parenting is that information is shared. BOTH parents receive communications about schedules, appointments, practices, and events from schools, doctors, therapists, youth directors, and sports coaches. Know a provider or organization that isn’t set up to easily share information with both parents? Let CLI know if you would like to participate in our outreach across Minnesota.

Peaceful co-parenting is possible and our kids are worth it!

 

Adina Lebowitz, MA is a family mediator, parenting educator, and wellness coach. Her primary goal is to help families find less stress and more peace in their co-parenting. She supports parents as they are adjusting to a new separation or divorce, and continues to support them as co-parents whether they are facing day to day parenting challenges, or dealing with the impacts of stress on their lives. She is available to mediate bigger issues that impact their parenting plans like a move, job change, new relationship, or a child’s health challenge.

EHTC Family Mediation | Elan Health Twin Cities LLC
Phone: 612-499-8418
Email: adina@elanhealthtc.org
Website: https://www.elanhealthtc.org/mediation
Facebook: Co-parenting with Less Stress and More Peace https://www.facebook.com/groups/coparentingmorepeace

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It may be tempting to save money in a divorce by drafting a decree with your spouse, or by completing a form decree. This is especially true if it appears that you and your spouse are in accord on all issues. But be warned: unintended consequences can arise months or years after your decree has been filed and entered by the Court.

Once your decree has been filed by the Court and entered by Court Administration, your decree becomes the legal guide for everything related to your divorce: custody and parenting time, support, property and debt division.  On the surface, these issues can seem simple and many couples attempt drafting their own dissolution paperwork without counsel in an effort to save on the investment of lawyers and other professionals.  While it is true that parties are often in the best position to make decisions about what their families need, attorneys are uniquely trained (and perhaps some are even naturally suited) to imagining something their clients may not be inclined to consider: the worst-case scenario.

The worst-case scenario is and should be an ever-present consideration for attorneys as they counsel their clients regarding important decisions that will have long-term impacts on parenting and financial issues. An attorney may be a glass-is-half-full type of person, but he or she has been trained to imagine what could go wrong five years out from a divorce or custody determination.  The worst-case scenario may not be an enjoyable rumination, but it is critically important in drafting strong contracts.

Take Couple A, for example.  Couple A was married for 12 years.  They have an eight-year-old child and they own a home, which they purchased together during the marriage.  Couple A decide to divorce in November and to sell the home in the spring when the housing market is stronger.  They agree to share the closing costs and to equally divide the sale proceeds.  They also decide that they will have equal parenting time, but they do not create a specific parenting time schedule.  Couple A feels pretty good about the progress they are making, and they should feel great – many couples are not able to have fruitful conversations about parenting and property issues in the context of a separation.  Couple A signs and files their divorce decree, which awards the home to Wife, pending the sale of the house.  Husband has purchased a townhome a few miles away.  Couple A is glad to have the divorce behind them so they can focus on their child and on moving forward with life.

What could go wrong?

Let’s check back in with Couple A one year after their decree is entered.  It is late fall and the marital home is still unsold. At the time the divorce was finalized, the realtor recommended repairs that required time and money and the parties were not able to agree on a listing price.  Some offers were made, but the parties felt that the property should sell for more.  Wife has been paying the mortgage for the past year, and the parties have now just received a solid offer.  Wife wants to be credited for reducing the mortgage principal during the year she made mortgage payments and is asking for additional sale proceeds.  Husband does not agree –  he has done some of the repair work on the home and has paid for lawn maintenance.  The decree is silent on principal reduction, and he believes the net equity should be divided equally, as worded in the decree.

In addition, Wife has put in an offer on a home twenty miles away from Husband’s new home.  Wife wants the now 9-year-old to attend school near her new home, in a different school district.  Even though the parties agreed on equal parenting time, Husband has been picking up overtime at work to help offset some of his expenses, so Wife has had significantly more overnight parenting time over the course of the last year.  Wife has hired a lawyer and is threatening to take Husband to court to address school choice, parenting time, and the division of equity from the sale of the marital home.

If Couple A had attorneys, even to simply review their draft decree, they could have included some provisions to address these foreseeable events.  As a family law attorney, I have encountered many “Couple As,” who, with the best intentions, endeavored to divorce without counsel because they believed it would save them time and money.  However, in many instances, these couples overlook important details and pitfalls that a family law attorney will mitigate by including provisions that anticipate change and communication breakdowns.  In the end, these couples have unnecessarily spent significant amounts of money to resolve issues that could have been avoided by addressing them properly at the time of divorce.

If Couple A had engaged in the Collaborative Divorce process and retained collaborative attorneys committed to working only out of court, they would have had conversations focused on problem solving the issues that they later encountered up front. While many divorcing couples can and should make efforts to reach agreements on their own, attorneys offer unique perspective and experience when counseling clients on important agreements.  If you are considering a divorce or have questions about whether the Collaborative Divorce process is right for you (there are many wonderful blog posts on the CLI site explaining why it probably is), contact CLI or browse through the online listing of collaborative attorneys (Find a professional) – most of us offer free initial consultations and love the collaborative work we do.

About the Author:
Rebecca Randen is a family law practitioner and partner at the firm Randen, Chakirov & Grotkin LLC.  She practices collaborative and traditional family law in the metro and greater Minnesota.  She is a lifelong Beatles fan.
www.rcglawoffice.com

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Thirty years ago, in 1990, a family lawyer in Minneapolis named Stu Webb had an idea.  He thought the idea was good enough to share with the Minnesota Supreme Court Justice at the time, “Sandy” Keith.  Stu’s letter of February 14, 1990, to Chief Justice Keith starts out:

Dear Sandy,
I met you at a party . . . several years ago.

Stu did not even know Sandy Keith!  But undaunted, Stu plows ahead:

I think I’ve come up with a new wrinkle that I’d like to share with you.  One of the aspects of mediation that I feel is a weakness is that it basically leaves out input by the lawyer at the early stages [of the mediation process]. . ..  By that I don’t mean adversarial, contentious lawyering, but the analytical, reasoned ability to solve problems and generate creative alternatives and create a positive context for settlement. 

…[Y]ou and I have both experienced, I’m sure, those occasional times, occurring usually by accident, when in the course of attempting to negotiate a family law settlement, we find ourselves in a conference with the opposing counsel, and perhaps the respective clients, where the dynamics were such that in a climate of positive energy, creative alternatives were presented.  In that context, everyone contributed to a final settlement that satisfied all concerned—and everyone left the conference feeling high energy, good feelings and satisfaction. More than likely, the possibility for a change in the way the parties related to each other in the future may have greatly increased.  As a result, the lawyers may also develop a degree of trust between them that might make future dealings more productive.

So, my premise has been:  Why not create this settlement climate deliberately?  . . . I would do this by creating a coterie of lawyers who would agree to take cases . . . for settlement only.  . . . I call the attorney in this settlement model a collaborative attorney, practicing in that case collaborative law. 

This little history might end here but Chief Justice Sandy Keith did respond to Stu’s letter(!!):

Dear Stu,
Many thanks for one of the most thoughtful letters I have received these past months.  Congratulations .  . . on the model you are setting up in the family law area.  . . . I know it will be successful.   . . . I think you have thought it through better than most attorneys and I think it is a very valid model in the family law area.

Both Stu Webb and Sandy Keith were pioneers in family law practice.  Sandy was a pioneer in using a mediation process in family law; Stu was a pioneer in creating a collaborative process in family law.  Thanks to them, out-of-court processes—mediation and collaboration—are benefiting clients all over the world.  Sandy Keith—former Minnesota Supreme Court Justice, former Lieutenant Governor, former State Senator, and former family law attorney—died October 3, 2020.  His support of the Collaborative process is not forgotten.

Footnote from Stu Webb, 10/6/20:
Here is the link to the Star Tribune Obituary of Sandy Keith, who died last Saturday, October 3 at 91!  I could say that Sandy is responsible for releasing Collaborative Law to the world!  In 1990, when I self-questioned the credibility of the concept, I wrote him a letter describing the process and, essentially, highlighting some potential advantages of it over mediation (which was his former practice specialty!)  Instead of defensively ‘shooting it down’, he Immediately sent a short note back, basically saying ‘wonderful, go for it’!  And years later, I had the honor of participating in a Collaborative Law case with him in my home office!  WHAT A GUY!!
Star Tribune Obituary \Sandy Keith: https://www.startribune.com/sandy-keith-former-minnesota-supreme-court-chief-justice-dies/572638202/

About The Author
Tonda Mattie, has been a Family Law attorney for over 40 years and has practiced exclusively Collaborative Family Law since 2006.  She has been involved in the Collaborative Law movement since 1992.  She has been past President and past Co-President of the Collaborative Law Institute (CLI) of Minnesota.  She has headed the CLI Training Committee as chair or co-chair since 2004.  She is engaged in the practice of her dreams using a collaborative process that 1) allows good people to be their best despite the crisis they are in; 2) is centered on the well-being of the children; 3) creates a safe environment for difficult conversations; 4) focuses on the future rather than on blame and past grievances; 5) identifies and meets the needs and interests of all family members; 6) empowers parties to control and create their own mutual settlement; and 7) creates a climate in which healing can begin to occur. Visit her website at www.mndivorce.com

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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-AlLouise 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 OuskyRon 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

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woman reminiscing 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.
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children-cute-drawing-159823April is Autism Awareness Month, the two month anniversary of the Marjory Stoneman Douglas High School shooting, and the 19th 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.
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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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love-heart-hand-romanticOK – this has nothing to do with divorce – or maybe it does. Valentine’s Day.  Yes, I know, it was two weeks ago.  And for people going through divorce, Valentine’s Day was perhaps just another day.  On the other hand, if you have young children, they exude an energy on Valentine’s Day that helps remind us of the deep and unconditional love we feel for our kids.  This year, I can’t help but think about the students at Marjory Stoneman Douglas High School in Florida.  Going forward, what will Valentine’s Day mean to THEM?  Will it be a reminder of the terror, shock, and incredibly grief they experienced?  And for the parents of the victims, what will the day represent? Locally, and just one week after the Florida incident, Orono High School was on lock-down due to a threat from a student who is on the autism spectrum.  Minnesotans are educated and smart and we know that kids with ASD are not dangerous.  The community of Orono responded in a very Minnesotan way: a GoFundMe page was created for the family of the child who made the threat.  Unfortunately, the boy is sitting in Hennepin County Juvenile Detention Center where a kid with ASD absolutely does NOT belong.  Some kids on the spectrum may be impulsive and may not understand how their actions can impact others.  They can’t always articulate how and what they feel, so they may not feel heard or understood and may respond in an extreme manner.  They aren’t trying to be difficult or make inappropriate choices.  But they can’t always discern socially acceptable behavior.  The agony this poor boy and his family must feeling!  This might be the first time where the perspective of  the “actor” in a school down is illustrated, and more empathy and compassion are generated.  I feel for ALL the families involved. School lock downs are now a reality for any parent with school-aged children.  It makes my heart ache.  And so many hearts were truly shattered this Valentine’s Day.  Yet here we are, a week later, and a family’s heart is breaking in Orono.  It’s overwhelming to see a community embrace this child and his family.  But then again, it DOES take a village.  So let’s take better care of our village.  Let’s take better care of our kids…ALL our kids.  Let’s embrace the big and small.  Athletic and musical.  Quiet and loud.  Different and unique.  All kids with all abilities.  We can do this if we: put down our devices and listen, really LISTEN to our kids.  Listen to our neighbors’ kids.  Play hide and seek.  Yes, I’m serious.  It’s fun!  Play Chutes and Ladders…again (ok, not so fun).  Read Captain Underpants for the umpteenth time.  And laugh – genuinely laugh!  Your kids will love you for it!  And…reduce kids’ screen time and get them the heck off social media.  They don’t need it.  They WANT it, but their brains just…can’t…handle it.  And to be perfectly honest, maybe our grown-up brains can’t either.  Instead, dust off your old copies of Charlotte’s Web, Nancy Drew and the Hardy Boys, and Harry Potter.  Have your older kids read to you.  You’d be surprised what you might learn this time around.