Family Law Archives | Page 9 of 16 | Collaborative Law Institute

November 3, 2014

I heard an advertisement on the radio this morning for a litigating divorce attorney. This attorney discussed the importance of removing the emotion from divorce and treating the divorce itself as a business transaction. I understood her point – emotions can be messy or interfere with rational decision making. However, emotion is often the biggest part of divorce. Or, it often feels that way to clients. How can we ask clients to strip that piece out of the process? Rather, as a collaborative attorney, I believe that emotion can be used to healthily guide clients to mutually agreeable resolutions that have long-term staying power. I embrace the opportunity to take the client where they are at – emotions and all – and guide them towards resolution. Engaging a mental health professional or coach in the process can sometimes be the greatest asset provided to clients and allow them to balance the emotions with the necessary business-like decisions. Treating a divorce as a business transaction often leads to client’s making decisions for purely financial reasons. Using emotions and feelings of fairness or equity may lead to clients feeling as if the resolutions more completely address their needs. For example, if one spouse cheated on the other, an emotional response of anger or vindication may lead to the hurt spouse to ask for more financial pay-out. This sort of punitive outcome is not supported in the law and rarely agreed to out-of-court. However, if the parties have a co-parenting relationship or more emotional needs, a purely business-like interaction may never address some of the underlying emotions. Facilitating a discussion about how both parties are feeling and what they may need in order to move forward may been more beneficial to the clients than any financial resolution. Some clients want an apology or a better understanding of why something happened. Others may need to put in effort to establish a shared narrative or story for others. The finances matter – sometimes most of all. The collaborative process embraces the financial side of divorce, but also allows for a more holistic and complete approach that can address emotions, if the clients so desire.

October 29, 2014

1. Forcing Your Kids to Take Sides The last thing a parent wants to do during a divorce is to cause more pain for the children. Divorce is a painful time during which many negative emotions can arise, including anger, fear, regret and grief. Often there is a perceived need to blame the other party for one’s unhappiness, together with a desire to hold your children close. However, keep in mind that putting your kids in the middle is harmful to them. Resist the urge to blame and criticize your spouse in your kids’ presence. Don’t force your kids to take sides or to report on the other parent’s activities. No matter how difficult it may seem, the best thing you can do for your kids during a divorce is to remind them that both of their parents love them and will always be there for them. 2. Engaging in an Adversarial Divorce Divorce is a major life event. It is the legal recognition that your marriage is over. Unless your situation is unusually simple (short marriage with no children and few assets and liabilities), each party should have an attorney to provide advice and to make sure that the required documentation is accurate and complete. For most couples, the divorce process can be completed without setting foot in a courthouse. Using skilled neutrals in the Collaborative Process or mediation helps to avoid the polarization that often takes place in more adversarial processes. Better post-divorce communication, lower divorce costs and less resentment are other benefits of no-court divorce processes. 3. Having Unrealistic Financial Expectations Divorce means creating two households in place of one. Most couples are struggling to make ends meet before separation. Creating a plan to support both households can be challenging. Unless income can be increased, down-sizing and belt-tightening are often required. There must also be a plan to pay divorce costs. Understanding these challenges going into divorce can provide both parties with a reality check and allow the divorce process to go more quickly and smoothly. 4. Forgetting to Consider Tax Implications Many of the financial decisions made in divorce have tax consequences, some more obvious than others. When dividing marital assets, it is important to recognize that some assets may actually be worth less than face value due to future income tax liabilities. Most retirement accounts, for example, have been funded with pre-tax earnings, meaning that withdrawals will be taxed and, depending upon the timing, may have early-withdrawal penalties as well. Stock portfolios will likely be subject to capital gains taxes upon liquidation. On the cash flow side, dependency exemptions and characterization of support payments (child support or spousal maintenance) impact the amount of after-tax cash each party has available to meet living expenses. It is essential to get competent advice during the divorce process in order to avoid unexpected surprises down the road.

October 27, 2014

In Part I we learned that advocacy in the “rights-based” Court Model is hard on the people involved because by focusing on the 3^rd-party decision maker, e.g., the judge, the parties care little about each other’s view. As a result, their relationship can become more adversarial. In Part II we learned that by removing the decision maker in the “interest-based” Collaborative Model the parties become the decision makers who resolve mutual problems based on their defined future needs, interests, and goals. But is the removal of the 3^rd party decision maker enough to create a process that is truly “soft” on the people? Most people who have gone through a divorce agree that divorce is much more than a legal event. More importantly divorce is about changing relationships, improving communication, establishing co-parenting, engaging in problem-solving, and securing a stable financial future. But many divorce processes do not adequately address these more important concerns, thus limiting divorce to simply a legal commodity. To gain the added value of improving your relationship with your soon-to-be ex-spouse, of becoming successful co-parents, of mutually planning for the future, and of customizing your financial arrangement to meet the needs of all family members within the resources available, requires the assistance and expertise of NEUTRAL professionals. These neutral professionals include a Neutral Financial Professional, a Neutral Coach, and a Neutral Child Specialist. This team approach is the “secret sauce” used in the Collaborative Model that can transform the experience of this life event into something constructive, affirming, and even peaceful. Obviously, this is of great benefit to children.

Diagram - The Power of Neutrality 082814

In addition to the support and expertise provided, the neutrality of the neutral professionals balances attorney advocacy. This permits the attorney to stay in the problem-solving and interest-based advocacy role for his or her client, while the neutral professionals hold the ground for resolution on behalf of the whole family. This interdisciplinary, holistic approach to advocacy and expertise is what distinguishes the Collaborative Model from any other model out there. Collaborative professionals like to say this model contributes to world peace one family at a time. If this approach makes sense to you, tell your friends, family, and colleagues about the Collaborative Model and contribute to world peace.

October 23, 2014

Money can be a major cause of stress in a marriage, so it should come as little surprise that solving money problems can be even more complicated in divorce. Divorce usually comes at a time of economic strain in a marriage and, of course, adds fuel to the fire by immediately adding additional expenses; the cost of a second home, legal fees and the cost of other divorce professionals. The fear of scarce resources can cause people to “fight for a bigger piece of the pie”. However, it soon becomes clear that, if both sides fight hard for a bigger slice of the pie, the legal fees and other expenses of maintaining the fight will cause the pie to shrink and the fear of having too little to rise. So, how can couples rise above the dilemma of draining resources from a rapidly shrinking pie? Here are a few quick tips:

Recognize that the most expensive part of a divorce is conflict. The desire to “lawyer up” and to focus on “winning” generally just creates economic loss for both parties. Most importantly, there are ways to protect your interests that work better, and put more money in your pocket, than gearing up for a fight.
Look for true “win-win” solutions that can actually make the pie bigger. Believe it or not, there are ways to think creatively in a divorce that will actually help both you and your spouse get more resources; including ways to save on taxes and transaction costs and ways to build in true incentives for both of you to earn more income and/or spend less money.
Improve your money sense. In the end, you will be left with your share of the assets, income and liabilities of the marriage. Your financial future will depend on your ability to manage your share, perhaps more than any other factor. Divorce provides an opportunity to improve your money skills, including your spending habits and earning power.

Collaborative Divorce, because it focuses on reducing conflict and increasing skills, and because it gives you the assistance of a neutral financial expert, provides many opportunities to improve in each of these areas. To learn more about the Collaborative options, and other ways to help address divorce financial issues go to www.collaborativelaw.org or www.divorcechoice.com.

October 8, 2014

In Part I we learned that “rights-based” advocacy in the Court Model is hard on the problem but also hard on the people. Advocacy in the “interest-based” Collaborative Model is also hard on the problem, but SOFT on the people. How is this possible? In the Collaborative Model, the parties voluntarily agree to reach a settlement outside of court. Thus the 3^rd party decision-maker, e.g., the judge, is removed from the collaborative process. Instead, the decision-maker is the parties themselves!

In order to reach a settlement, the parties must consider and honor the other party’s perspective. In the Collaborative Model, advocacy is not about the position a client takes on a particular issue, but about meeting the future needs, interests, and goals that are defined by the couple themselves. By framing the problem in terms of needs, interests and goals, parties are likely to see their dispute as a mutual problem that they must work together to solve. They now answer the question: how do we both get our needs and interests met? How does our family get its needs and interests met? Advocacy in the Collaborative Model encourages parties to look behind their opposed positions to determine the motivating interests. In doing so, the parties often find alternative solutions that meet the needs of both sides. Collaborative advocacy pays attention to balance, listening and being creative. Collaborative advocacy creates an incentive to work together, acknowledge the other, to be authentic and realistic. This kind of collaboration can occur only in an atmosphere that is respectful, transparent, and mutual; and one that incentivizes caring about the other party’s point of view with the removal of the 3^rd party decision-maker. While being hard on the problem and soft on the people seems to be a contradiction, it is this contradiction that promotes better settlements and preserves needed relationships. Who knew that removing the 3^rd party decision-maker could make such a difference! In Part III, I will explore how the power of neutrality is the secret sauce to a successful collaborative divorce.

October 6, 2014

It is not uncommon for parents to disagree on school choice. Sometimes parents have differing opinions on the curriculum of a school or certain teachers or even location or class schedule. When children are at natural school moves (such as entering junior high or high school), additional changes need to be made. When parents are divorced, these decisions can often be even more difficult. In addition to deciding what’s best for the children, emotions and challenging communication can make the decisions even harder. Sometimes it is good to look at the practical and logical considerations to help make these joint decisions. Here are some specific considerations in a school decision:

If it is not a natural school change point, how well do the children deal with change? Do they make friends easily? Do they know anyone at the potential new school? Are there specific elements of the new school that would be particularly enjoyable for the child (such as an orchestra or specific extra curricular activity)?
How well does the new school deal with change? Do they have programs in place to integrate transfer students into school? Is there anyone who has transferred into the school recently that you or the children could talk to in order to prepare? Could the school assign your children mentors or buddies to help them feel more comfortable if they transfer?
How would a school change impact parenting time? Will both parents still have meaningful time with the children?
Should the children have some say in this decision? Junior high and high school students may want to visit potential schools and provide some input on the change.

Ideally, divorced parents with joint custody can work together and make a school choice together. If it becomes difficult or starts to cause any stress or strain on the children, consider seeking third party support. A neutral child specialist or collaborative process could help you work together on a decision.

October 2, 2014

The psychologist Anthony Wolf wrote a book about divorce and kids entitled Why Do You Have to Get a Divorce? And Can I Still Get a Hamster? I love the title of this book, because it identifies both the big picture concerns and the day to day questions children will have about how their lives will change when parents get unmarried. At this time of year, most elementary school aged children, and some older kids too, become excited about Halloween. Though it has deep roots in ancient cultural traditions, in today’s American culture Halloween is truly the children’s holiday. Kids love to dress up and pretend, and most are thrilled to go trick or treating or attend special events and come back with a stash of treats. Some kids plan their Halloween costumes for months in advance, and it’s not uncommon for homes to be extensively decorated with more than just jack-o-lanterns. Holidays are usually difficult times for families experiencing divorce, about which I have written earlier. I am focusing on Halloween in this October blog post because this uniquely children’s holiday is right around the corner. Here are four tips for creating a positive experience for your children:

Manage your expectations so your kids can manage theirs. This may not be the year that Mom will be able to spend hours at the sewing machine making elaborate homemade costumes. But it may be the year that your kids have a friendly competition for who can make the most creative costume out of things already in the closets, drawers and attics at home. If your child has his or her heart set on getting a particular costume, and you want to honor this dream, be sure to budget for the purchase of the costume.
Ask your kids what is most important to them about Halloween and focus your energy accordingly. This often requires co-parent cooperation, for which your kids will be grateful If their favorite part is carving pumpkins, make this activity as festive as possible, and be sure to take lots of pictures to send to your co-parent if s/he is not participating. If the high point is trick or treating, decide in advance whether one or both parents will be responsible for taking them out and whether one parent will stay behind to hand out treats. If you are separated, decide in advance which neighborhood is likely to be the most fun for trick or treating this year, and go from there.
Rely on your support system. Trick or treating or going to a Halloween event with neighbors, friends or cousins can help create a fun experience for your kids if your own energy is depleted.
Determine co-parenting ground rules for how to handle the stash of treats, e.g. how much can be right away and how the remainder will be saved and distributed. Work this out in advance so your children will not be in the middle of a parental argument on Halloween .

I wish you and your children a peaceful and happy Halloween!

September 24, 2014

Remember that old rhyme from childhood, “First comes love, then comes marriage, then comes a baby in a baby carriage”? Some things are just part of life and are simply inevitable. People will fall in love. People will join together in relationships. These are all positive, great things. Unfortunately, people—whether gay or straight—all have struggles in life and relationships. Inevitably, when Minnesota granted same-sex couples the right to marry, it was inevitable that same-sex divorces would happen, just as opposite-sex divorces happen. Gay couples who married before marriage was legal in Minnesota—whether they became married in another state or, because Minnesota borders with Canada, often in another country—may now face the need to obtain a divorce. If a gay couple separates and does not intend to share their lives together going forward, they should strongly consider finalizing their separation by obtaining a legal divorce in Minnesota. I have run into Minnesota gay couples who had no idea that they are now legally married. This viewpoint may be especially common for those couples who married in Canada years ago and then separated long before marriage was legal in Minnesota. For better or worse (pun intended), those couples continue to be married and need to divorce in order to clear up the division of their marital assets and debts. If they have children in common by adoption they need to determine their rights and responsibilities as to those children. Even if there is a non-joint child, which is common in same-sex marriages, the “non-parent” may be able to establish legally enforceable rights to visitation because of their significant connection with that child. Again, this is even though they are not legally “their” child. Because marriage creates an interest in real property (houses, etc.), the residence that the couple lived in or any other land and any mortgages (and any other debts) need to be addressed in the divorce. Before same-sex marriage was legal in Minnesota, it was difficult for same-sex couples to form legally enforceable rights and responsibilities related to a committed relationship. Perhaps that is why some same-sex couples have a hard time believing that they now must use the legal system to fully end their marriage relationship. By the way, I understand that Brangelina (Brad Pitt and Angelina Jolie, for those who don’t follow popular culture!) had declared they wouldn’t get married until same sex couples everywhere could get married…but apparently they couldn’t wait, because they were recently married. Well, my theory is that they had to wait until Minnesota made same-sex marriage legal (it just took a year to plan the wedding)! Without getting divorced, a gay couple may find out later, to their surprise, that one of the pair is making a claim to part of the other’s retirement account or is holding up the sale or transfer of property that was owned during the marriage, because simply living separately doesn’t resolve all these issues. I expect that many same-sex couples will be unpleasantly surprised later in life that when they hear that they have to share their retirement with a partner from long ago that they never intended to share their retirement account with. Or, an inheritance may be held up–or never received as expected by a son or daughter–because of a claim for all or a share of the estate of a deceased same-sex spouse. These are topics that are addressed well in the Collaborative Process because they can be approached from a perspective of respect and honoring of the love that the couple previously shared, while laying a foundation for future separate lives. Now that same-sex marriage is legal Minnesota, same-sex couples may likely find that the Collaborative Divorce process provides the proper legal, financial and other professional supports needed for disentangling the various legal rights and responsibilities incident to ending their legal marriage.

September 22, 2014

Parties going through a divorce need to understand that advocacy in the “rights-based” Court Model and advocacy in the “interest-based” Collaborative Model are different; and advocacy in each of these models feels different as well. Bear with me while I examine Advocacy in the “rights-based” Court Model in Part I in preparation for discussing advocacy in the “interest-based” Collaborative Model in Part II followed by the “power of neutrality” in Part III. Trust me, this is interesting. In a rights-based model, “rights” are independent standards of fairness or legitimacy that are formally established in law or contract. Usually different rights or entitlements are at stake in a particular case. Here, each party and their attorney is playing to the decision-maker, e.g., the judge, or playing to a prediction of what the decision-maker would decide based on application of the law to the facts of the case.

In this case, neither party cares much about the other party’s point of view. What matters is what the judge thinks or is predicted to think. “Rights-based” advocacy focuses on winning and losing and defending positions, and frequently emphasizes past events. The relationship between the parties is likely to become more adversarial, the parties becoming opponents interacting in an accusatory atmosphere. While advocacy in this model is hard on the problem, it is also hard on the parties. A rights-based model can sometimes accomplish what an interest-based model cannot—bring an end to the divorce. There will always be parties and problems that cannot be resolved without a 3^rd party decision-maker making a final decision or threatening to make a final decision for the parties. But for many families, a rights-based procedure is not necessary. A rights-based procedure should be a last resort rather than a first resort. That was pretty interesting, right? In Part II, I will examine advocacy in the “interest-based” Collaborative Model and how the removal of the 3^rd party decision-maker makes all the difference. In Part III, the power of neutrality is shown to be the secret ingredient to advocacy in the “interest-based” Collaborative Model.

September 17, 2014

As I listened to the appalling news out of Ferguson, MO, last week, I was especially struck by two things: First, a veteran police officer, a retired chief of a municipal department, shared an observation that his officers made during unrest in his city, that when they were deployed in riot gear, officers invariably discovered that the situation became riotous. But when they met protestors wearing only their regular uniforms, they were able to talk to them and defuse many situations. Secondly, early last week, Missouri Governor Jay Nixon put State Troopers under the command of Capt. Ronald S. Johnson, who grew up in the area, in charge of the police effort in Ferguson. Capt. Johnson, as pictured on the front page of the August 15th N.Y. Times, wore only his regular Summer uniform. He walked with protestors in the streets; he listened to them explain long-standing grievances. And the temperature in Ferguson cooled perceptibly–before additional tear gas and rubber bullets reignited passions. I am not a cop. But the retired police chief–and Capt. Johnson–and I–all know from long experience that you will find trouble if you go looking for it. Fortunately, my experiences as a divorce lawyer lack both rubber bullets and tear gas, but they are accompanied by strong emotions, usually expressed in the denigration of my client’s spouse. My client recites how dishonest, abusive, or uncaring the spouse is; how neglectful or clueless he or she is. It’s the opposite of the old lyric, “lookin’ for gold in a silver mine.” If those negative emotions bubble over, they’re invariably met with–SURPRISE!–the same feelings on the other side! And the case becomes even more contentious. The bigger waste, overall, is that the couple seems to believe that the family court system cares about this emotion. Apparently they believe that if the fight becomes bitter enough, someone will “win”. These folks could have been the inspiration for Elton John’s lyrics in “Honky Cat”: “It’s like trying to find gold in a silver mine. It’s like trying to drink whiskey from a bottle of wine.” Collaborative Process was conceived as a problem-solving exercise, based on a belief that husbands and wives might put their children’s welfare before their own. When I can get my client to take that leap of faith, s/he is often astounded to discover that, because they’re not spending the time fighting, both of them are able to make decisions that directly benefit the entire family. When my client starts out believing that their spouse also wants to complete the process and care for their children, they discover–SURPRISE!–that the spouses do. And when that happens, they’re more willing to listen to the variety of ways in which that could occur. Time and energy are now spent devising productive ways to reorganize their family. If you’re looking for peace by waging war, don’t expect to find it. If, on the other hand, you start out waging peace . . .