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Abraham Lincoln, one of my heroes, spoke to a divided nation in 1861 and expressed a hope that everyone, north and south,  would be touched by “the better angels of our nature”.     file3921269374368 These poetic words are often ringing in my ears when I sit with a divorcing couple hoping that they might be able to summon their best selves during difficult times. Divorce can be so emotionally challenging that it is easy to excuse people who cannot bring their better angels to the process.  It would be wrong to judge anyone who, when facing divorce, becomes so blinded by fear or anger that they seem unable to summon their better natures. Yet, as a divorce attorney, someone who has a responsibility to help clients achieve better results, I cannot escape the fact that my job requires me to help them, (and if possible their spouse) find their better selves.  I do know from nearly three decades of experience that they will make better decisions and get better outcomes, particularly for their children, if they can find their “better angels”. Until ten years ago, I did not think it was even possible to help clients find their better selves. Hardened by 20 years of practicing divorce law, I had come to believe that I had to, for the most part, accept irrational and self destructive behavior from my clients.   However, during the past ten years, through the Collaborative Process, I have found that there are ways to help people find their better selves and, therefore, achieve better outcomes. This has been partly due to the training that I have received from my Collaborative Colleagues to help clients in new ways.  It is strengthened by the fact that the other attorney will work with my client’s spouse in the same manner; and by the fact that the clients can get the support of a child specialist, financial neutral and coach who will help them both bring their best selves to the table.
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2010-07-20_Black_windup_alarm_clock_faceA frequent question asked during an initial phone call or meeting with a client is “When will I be divorced?” The answer is “It depends.” It depends on whether or not there are issues in dispute, what those issues are, how far apart you are on those issues, and whether emotions may impede resolution of those issues. There are a range of possible timelines. On the fast end is a very simple divorce with no children and very few assets, with both people agreeing on how to divide the assets. It usually will take an attorney about a week or less to draft the necessary legal documents (assuming all the necessary information has been provided to the attorney) and, if there is another attorney, the time needed by that attorney to review the documents. The next step, signing the documents, can be accomplished in a matter of days if both spouses are prompt in doing so. Once the documents are filed with the court, a judge will be assigned to the case and will review and sign the document (if it is acceptable and in proper form) within a month of filing of the documents. Even in those situations in which the couple thinks they have an agreement, it may be helpful to work with professionals who are trained in the collaborative process, and who are committed to helping them reach agreement, but also who can help identify issues that the couple has not addressed. Couples who “do their own divorce” sometimes miss issues that can create future conflict and possible litigation. More time will be needed if there are disputed issues involving parenting time, financial or other issues. The key in these situations is finding the resources to help the couple ultimately reach an agreement. Some cases drag on, not because of complex issues, but because the spouses are engaging in emotionally charged behavior creating obstacles to reaching agreement. Couples who work with neutral experts (rather than two competing experts) and with coaches and child specialists can avoid some of the common causes of protracted delays. Attorneys trained to facilitate settlement agreements can also help you make better use of your time. For names of professionals trained in the collaborative divorce process, visit the Collaborative Law Institute of MN website here. The more contentious cases which are not resolved by agreement may not go to a final court hearing or trial for a year or more. Since close to 97% of divorce cases in Minnesota are resolved by agreement, not trial, the process you use to reach an agreement will affect both the length of time needed and the quality of the agreement.
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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.

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serenity-prayerMany 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.
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Friends

“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.
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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.
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KL1A0028When someone mentions divorce, where does your mind go?  Do the words “fight,” “bitter,” or “vicious” come up?  How about terms like, “teamwork,” “goals,” or “considerate?”  It’s interesting to an experienced divorce lawyer how often the expectations include the former terms, and how often, in Collaborative Divorce, the reality includes the latter concepts.

I was reminded of this recently when a client I represented in a Collaborative divorce five years ago sent me a note.  I have always remembered him because of the great shift in his attitude toward his wife by the time the case was over.  When we began his divorce, he stated in an early meeting that the couple’s property should be divided in his favor, since he had always earned more than his wife (which is NOT the way the law looks at it).  The statement was not well-received, either by his wife OR her attorney.

The couple had been married more than 30 years.  As the case drew to a close, it became obvious that her job at a prominent Minnesota corporation, her debt-free house, and the even division of their property and substantial retirement assets would provide for her just fine.  The only question left was spousal maintenance.  We often see a spouse who doesn’t need financial assistance waiving maintenance—in fact, often the couple mutually agree to take jurisdiction over maintenance away from the court altogether, for all time.  When I asked whether she had given any thought to waiving maintenance, she glanced at her veteran lawyer, then shyly said she would waive it.  In the next instant, we were all stunned to hear my nuts-and-bolts, cut-and-dried, professional engineer client say, in a voice of genuine warmth, “I don’t think you should do that.  You never know.  You might need it some day.”

Approaching the end of their marriage as a family-centered problem-solving exercise, rather than a combat, allowed this wife to give up a claim I would have assumed she would keep.  And it allowed her husband to decline her offer, in the interest of her potential long-term welfare, a gesture no one would have predicted.  Their mutual trust of each other, reaffirmed during their weeks of working together, ultimately allowed them both to make decisions that considered each other’s welfare as much as their own.

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“There are many things in life that will catch your eye, but only a few will catch your heart...pursue those.”~Michael NolanWhere can I hire an attorney with heart? I get that question all the time.  Okay, so not exactly that question, but isn’t that what we mean?  We ask for a “good” attorney or a “reasonably priced” attorney or one “who cares and will listen to me.” In Collaborative Team Practice, attorneys work with other professionals who have training and experience in the non-legal areas of divorce.  Those other professionals help the clients with the financial information, the child/parenting issues, and the emotional rollercoaster of the process, while the attorneys focus specifically on the legal aspects. Why would an attorney want to work in Team Practice? In the traditional model they do it all.  They set up the spreadsheets and explain financial options, help their clients come up with a parenting time schedule and referee the arguments and emotions.  All of that takes a lot of hours, and to be perfectly honest, that turns into a lot of billable hours. Attorneys who limit their work to the legal aspects of the divorce have less billable time. They work side by side with experts who specialize in the other essential areas of divorce.  Since they are only doing one piece of the work they get just one piece of the billable hours. So, again, why do they do it? Team practice attorneys are members of the broader community of attorneys out there who are motivated by putting their clients’ interests first.  I know from professional experience that they understand how difficult divorce is and want to be of service.  They want their clients to get the full support a team can provide.  Contrary to all of the humor about lawyers, there is an abundance of really good, caring attorneys. Team Practice Collaborative Attorneys absolutely have heart.
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Several years back, I was working on a case with another collaborative attorney and our clients were arguing about a parenting issue.  My client was trying to tell her soon-to-be former spouse how he should spend his time with their daughter.  Rather than being reactive and pushing back on my client, the other attorney pulled out a piece of paper and drew a rectangle and started talking about them sharing a back yard as a couple and that when they were together, they had a common vision or idea (not always void of conflict, mind you) about how they raised their daughter and spent their resources.  They let certain people enter their common back yard, decided how they would care for the back yard and how they wanted it to look. Then The other attorney took her pen and drew a line down the middle of the back yard and talked about how the back yard is now owned half by my client and half by her client.  And what was once a shared space is no longer shared, although they share a common fence.  They can look over the common fence and talk about things that are important to them about their common values and goals, but they each no longer had the same authority to decide what happened in the other’s yard or who the other let into that space.  She very gently and tactfully said that what we were talking about with regard to the daughter and how time was spent in the other person’s back yard, is no longer my client’s back yard to tend to.  And then she mentioned something that her client no longer had the right to tend to in my client’s back yard.  The couple paused and you could see the light bulb go on in their heads.  It was a great metaphor for what happens during a divorce. In a Collaborative Divorce, the team of professionals help the couple define their own back yards and identify what boundaries, ordinances, and communications are appropriate and necessary for their shared vision of parenting and a healthy divorce.   This can be a very difficult transition for many people.  And working with a divorce coach or neutral child specialist helps couples redefine their boundaries and expectations around parenting, communication and their newly defined relationship; all of which are part of creating a parenting plan/relationship plan.  Each couple has to learn what they continue to have a say over and what they no longer have a say over with their soon-to-be former spouse. During the next two meetings with this couple, they each commented on several occasions when they recognized they were entering the other’s back yard, and then stepped back and simply stated their concern or idea, but left it at that rather than forcing an issue.  It was a non-charged term they could use going forward as co-parents.  They learned where their common fence stood.  After all, good fences make good neighbors, right?