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Picture2You are getting ready to tell your spouse about your divorce; Should you get an attorney? On the one hand, you want to be protected. Going through divorce without an attorney can feel like entering a foreign country without a guide. During this difficult process it seems critical to have someone who is truly on your side. At the same time, you have a fear that lawyers will stir things up and cause unnecessary acrimony and expense. Lawyers can mean court; and your instincts tell you that going to court, or even threatening court, could turn your divorce into an economic and emotional nightmare. It would be great if you could have the best of both worlds.  It would be wonderful if there was a legal expert on your side who will not stir things up; someone who could be your best friend without becoming your spouse’s worst enemy. Today, in Minnesota, you have that option.  It’s called Collaborative Practice. In Collaborative Practice you hire an attorney for settlement purposes only. Collaborative Attorneys are typically trained in ways to help guide you through your divorce that protect your interests without creating unnecessary acrimony. In a Collaborative case, your attorney and your spouse’s attorney are both prohibited from going to court, or even threatening court. Collaborative attorneys in your community will also meet with you, at no charge, to explain more about the process and to help you learn more about whether Collaborative Practice is the best choice for you. To find a Collaborative attorney and to set up your free consultation, go to www.collaborativelaw.org.
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I recently met with a man (I’ll call him John) whose wife wanted to divorce.  He was very much against ending the marriage.  He went to the office of his wife’s attorney presumably to discuss settlement, but instead received his Wife’s proposal for settlement set forth in a Summons and Petition.  Over the next six months, he attempted to meet with his wife to discuss her proposal or alternatively what could be done to save the marriage. Though the couple was “getting along” while continuing to live together, no meeting took place to discuss the divorce or the possibility of reconciliation.  When John came to meet with me, a collaborative divorce attorney, he handed me two un-opened letters he recently received from the District Court. The first was a notice for an Initial Case Management Conference (ICMC) court appearance which he had missed.  The second, was a notice for a default hearing the next day to grant the divorce!  At issue, was up to $50,000.00 that John would lose if the divorce was granted based on his wife’s proposal in the Petition.  Obviously, I advised John to appear at the default hearing and throw himself on the mercy of the court to delay the default hearing so he could participate in the divorce proceeding. Regardless of whether or not John’s version of the facts are completely accurate, it can be confusing to know if and when a legal proceeding is commenced.  In Minnesota, a divorce action is commenced when you are personally “served” with a Summons and Petition for Dissolution of Marriage.  “Service” is most frequently accomplished when a person over the age of 18 years old—who is not your spouse—delivers you a copy of a Summons and Petition signed by your spouse, now called the Petitioner.  If the Petitioner is represented by an attorney, the documents are also signed by the attorney. “Service” does not need to be done by the sheriff or police.  It is frequently performed by private process servers.  It can also be performed by your neighbor or a relative.  The documents simply needs to be handed to you by a person over the age of 18 (but not your spouse) who later files an Affidavit with the Court swearing on that date he or she delivered to you a Summons and Petition.  Once service on you has been made, the clock starts ticking as to when you must respond to the Petition.  If you fail to respond appropriately, the Court can grant the Petitioner a divorce based on the proposal set forth in the Petition. This is what happened to John.  He did not realize he was officially served when the legal assistant at the attorney’s office handed him a Summons and Petition.  It was more confusing because the documents were not signed by the wife’s attorney.  Instead, the wife signed the documents “pro se”, meaning she was representing herself.  It became even more confusing because the parties continued to live together and the wife made no mention that an ICMC court appearance was scheduled. The wife appeared at the court hearing, but never mentioned to John that he had failed to show up, nor did she mention the default hearing date.  Nevertheless, John was at risk of having the divorce granted by the court.  Lesson learned: Consult with an attorney if you are not sure a legal action has been commenced and open your mail! By contrast, this could not happen if John and his wife had agreed to use a collaborative process for their divorce.  In a collaborative process, the parties agree to commence the divorce together by signing a Joint Petition.  No service is necessary.  Everybody knows what is going on.  Everybody participates equally in reaching a settlement before the legal documents are drafted and filed with the court. I have since learned that John appeared in Court at the default hearing.  As a result, the Court continued the hearing so that John could participate in the divorce. Whew!  That was a close one.
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Once you have reached the difficult conclusion that your marriage is over, opening the door to discussing divorce with your spouse is never easy. Yet the way that you choose to talk about a possible divorce may have an enormous impact on you and your family for many years. Should you carefully plan your legal strategy before talking to your spouse or should you be open and honest? Does the answer depend on whether you are more interested in protecting your money or your integrity? In truth, the answer may be the same either way. Yes, if you want to preserve the dignity of your family, protect your children from an adversarial divorce and honor your own sense of integrity, an open approach is likely to be your best choice. At the same time, if you want to protect your interests and make sure that you get the best financial result, your best choice is probably, and here is the big surprise, an open and honest approach. From working with families as a divorce lawyer for 30 years, it is clear to me that starting the divorce in an open and transparent manner almost always leads to a better outcome, in every respect. Secretly planning for the divorce and hiding your plans from your spouse will not lead to any advantages when the divorce happens, and will likely fuel fear and suspicion that can make your divorce a nightmare. Despite this reality, many attorneys will still advise clients to engage in secret divorce planning strategies that often help the lawyer more than they help the clients. Before taking these steps, you need to get a second opinion. One way to achieve this is to schedule a free consultation with an experienced Collaborative attorney.
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The first post of “Getting Unmarried,” I talk about making the decision to get divorced. The first installment of “How to get divorced” focused on my thought process considering traditional litigation, mediation and briefly mentioning the do-it-yourself process.  In this post, I share with you what I learned about collaborative divorce, a term I had never heard of before. One day I received a letter from a family law attorney who was a member of the local chamber of commerce, where I also was a member.  She was marketing her services as a family law attorney and happened to be in the same area of the Minneapolis and St. Paul metro area.  I looked at her website where I first heard of the term collaborative divorce.  I was intrigued. This attorney, along with a life coach, was offering free workshops on divorce.  I signed up to attend the next available workshop.  In the meantime, I wanted to learn as much as I could about this new term (new to me), collaborative divorce. Collaborative divorce, I learned, was—in its most simple definition—divorce without court.  As I continued to learn more about collaborative divorce, it was a great deal more than just divorce without court. Each spouse has their own attorney. Other professionals, such as a financial specialist and a child specialist, act as neutrals and are employed as needed to assist the couple in reaching agreements about finances and co-parenting their children. Coaching services are available as needed to help the couple with communication challenges during the process, in order to promote better decision making. A coach also helps with developing a relationship plan the couple uses both during the process and post-divorce. What I really liked about collaborative divorce was the concept of both spouses and each of their attorneys signing what is called a Participation Agreement, committing that court or the threat of court is not an option to be considered in a collaborative divorce.  While everyone has the right to court processes even when we would sign an agreement stating otherwise, it was to be understood that if the spouses later elected to discontinue the collaborative divorce and go to court, the two attorneys would have to discontinue representing them, requiring both spouses to find new attorneys to represent them in court.  The attorneys who represented the spouses in the collaborative process would attempt to utilize the most economical and orderly means available to transfer each spouse’s information to the new attorneys. I learned the basic tenants of a collaborative divorce beyond the pledge not to go to court include:
  • Both spouses and attorneys would participate in good faith to reach agreements that considered the interests, concerns and needs of both spouses and their children, if any.
  • Each spouse would be required to fully disclose to each other all information that would be relevant to their circumstances.  This would include all financial information being disclosed to a financial neutral.
  • Everyone in a collaborative divorce is to mutually respect each other and communicate in a manner that conveys respect.  Communicating with respect greatly assists in the effort to reach agreements everyone can live with.
  • Emphasizes the needs of children.  This is critical, in my opinion, for divorcing couples with children.
  • The couple would retain control over the outcomes decided versus having someone else, knowing little about the family, making decisions for them.
Collaborative divorce sounded like exactly what I was looking for.  It most closely matched the goals I had set out to accomplish. For anyone who wants to learn more about collaborative divorce, I invite you to visit www.isfngroup.com and on the right menu bar select Collaborative Divorce Knowledge Kit.  This document provides more information about collaborative divorce, including a side-by-side comparison of a collaborative divorce and the more traditional court process.  Additional resources under about us on the right menu bar include a 20 minute video of real clients describing their experience with collaborative divorce and a link to Little Children Big Challenges-Divorce (help from Sesame Street for parents with children). In the next post of Getting Unmarried, I talk about discussing what I had learned with my spouse and choosing an attorney (my step three).
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The divorce process can be so difficult it is hard to imagine anything positive coming from it. However, in Collaborative Team Practice your family is surrounded by professionals who understand the complications of relationships, the emotional distress of divorce and how to navigate this process with open communication, balance and respect. When a family takes advantage of the professionals’ knowledge, skills and guidance the divorce process turns into an opportunity to communicate and work together in new ways. Families generally come to divorce because they have been immersed in negative patterns that are not working. Spouses or partners don’t feel heard, respected, valued, appreciated, free to be themselves and/or balanced. One or both in the relationship have worked hard to try to turn it around, to do better, to make it work, but the established patterns are formidable. In the actual divorce process itself, there are brand new options. You have made the difficult decision to separate or dissolve the marriage so the pressure is off to “fix the relationship.” Now the focus is on accepting the end of the partnership or marriage and re-establishing and strengthening your separate selves. Your new job is to form a co-parenting relationship. This is very different from the partner or spousal relationship. We seek to have our own needs met within a spousal relationship which is the part of the relationship that is most likely to become broken. In a co-parenting relationship you are not expecting to have your own needs met, instead the goal is to meet the needs of your children. Doing what is best for your children is something that both of you want. The Collaborative Professionals guide you through the divorce process of deciding how to divide assets and debts and establish separate living arrangements and most importantly to develop a parenting plan. This is an opportunity, with assistance, to talk to each other differently and to rediscover and build upon the strengths you each have to work together for your children.
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As a Neutral Child Specialist, I often meet with parents who have not yet told their  children about their decision to get divorced or unmarried.  I encourage parents to create a We Statement that helps children understand what is going to happen without putting them in the middle of conflict between their parents. Many books and articles written about children and divorce stress the importance of telling kids the divorce is not their fault, and they are not to blame.  Here are three developmental reasons why I encourage parents not to use the words fault or blame in their We Statement. 1.  Young children still mastering language can easily become confused about negation.  These children may translate “it’s NOT your fault” to “it IS your fault.” Young children may believe this and internalize the idea without questioning it. 2.  School-age children are developmentally focused on understanding fairness, causality and the dynamic of good guys vs. bad guys.  If told they are not to blame, many children will wonder, “well then, who IS to blame?”  With this thought, children can find themselves unhappily stuck in the middle. 3.  Teenagers have even more knowledge and sophistication about relationship dynamics, and may feel compelled to learn and pass judgment on “the truth.” It is especially important to not introduce fault or blame in the discussion with teens. What then is the alternative to using the words “it’s not your fault” or “you’re not to blame”  if parents want to reassure their child that he or she had nothing to do with parents’ decision to get unmarried? I recommend an affirmation such as, “You are the most important person in the world to us.  We love you and cherish you, and will always be your mom and dad and take care of you.” These words communicate in a positive and supportive way what children need to hear from parents during this difficult discussion, and are an important part of an empathetic We Statement. Stay tuned for future posts about We Statements.
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The myths and misunderstandings about divorce could make you act in ways that would hurt you in your divorce. Here are some of the most common myths and how actions based on those myths could impact the final divorce terms. 1. LEAVE THE HOUSE, YOU LOSE IT. A home purchased during the marriage is a marital asset whether or not you are living in the home at the time of the divorce. Its value is included in the final property division. You don’t lose that value by leaving the home. In fact, most couples have a hard time living in the same residence during the divorce and many people need to separate during this time. However, who is living in the home at the time of a court hearing on the issue of temporary occupancy of the home will have an advantage. While the divorce is going on, it will be harder to get a court order transferring temporary occupancy away from the spouse then residing in the home. 2. EMPTY OUT THE BANK ACCOUNTS. What you owned before the divorce started is what will be included in the marital estate to be divided in the divorce. You and your spouse will most likely get one half of your marital assets in your divorce. If you fear that your spouse will empty out your accounts, it is acceptable for you to take out one-half and deposit these funds in a new account in your name alone. Taking all of the funds will be negatively viewed by the court. 3. QUIT YOUR JOB, LOWER YOUR INCOME. If you have earned income during the marriage, your income history will be the bench mark for any court orders on financial support, including child support and spousal support. If you have a job, don’t quit it or take action to reduce your earnings. The court can impute income you would have earned if you had not taken those actions. Both of your potential earnings are considered in any court decision on support, so even if you have not been earning income recently, your potential earnings are relevant. If you apply for jobs and show recent history of efforts to seek employment, the court has a basis for a finding on whether or not you could earn potential income. If the result of your efforts is obtaining employment, that is a good result. For most families facing the increased costs of two households, extra income will be needed after the divorce. You should be maximizing, not minimizing income. 4. TAKE THE KIDS AND RUN. Unless you or your children’s physical safety is at risk, hiding them from your spouse can actually hurt you in a custody dispute. You can move out with your children but, unless their safety is at risk if they have contact with your spouse, you should make sure your spouse has contact and parenting time with them after the separation. In a disputed custody case, an important issue will be how each parent supports the children’s relationship with the other parent. If you have kept the children away from your spouse and denied parenting time, that could hurt you in a custody case. 5. SPEND A LOT. Your standard of living and spending during the marriage is what the court will look at, not inflated spending after the divorce starts. If spending around the time of the divorce is unusually high, the court has the power to call that spending a dissipation of marital assets and can reduce the property settlement awarded to the spouse found to have dissipated assets. Again, most families have more expenses for two households after a divorce and so you should be reducing, not increasing your spending. Your friends and relatives may have advice about what you should do if you are thinking about divorce. Get some advice from a professional experienced in divorce issues before you take action.
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In Part I of this series titled “Getting Unmarried” (my story), I wrote about making the decision to get divorced as being the most important and most difficult step for me.  I will tell you that after finally deciding to end my marriage, it was as if the weight of the world had been lifted from me.  This didn’t necessarily make the rest of the process any easier, but it did change the focus of my efforts to getting from point A to point B. Now that I had made the decision to end my 30-year marriage, my next step was to figure out how to do this.  At this point I had not discussed any of this with my spouse, although we both realized our marriage was under tremendous stress once again.  I didn’t have a clue where to begin.  I had no prior experience myself, nor had my parents been divorced.  I knew that listening to friends and family was not necessarily the best, as they naturally would find it difficult to be impartial.  I knew I didn’t want a costly or high conflict divorce. What I did want was an open, respectful, type of process that considered both of our needs and the contributions we both made to our family during our 30-year marriage.  I wanted to as much as possible be able to make decisions with my spouse about the outcomes rather than someone else making those decisions for us.  I assumed that if I ran straight to an attorney, I might run the risk of the process getting out of control.  At the time I didn’t personally know any family law attorneys.  What I chose to do was to find out about the different alternative processes to divorce, choose the one I felt most suitable for my circumstances, discuss with my spouse with the hope we could agree to a process, and then find the attorneys who could help us achieve these goals. While I knew, or I should say thought I knew, about the more traditional type of divorce process, this largely attorney driven (my opinion as a result of my divorce experience) method seemed too adversarial, too costly both financially and emotionally, and would not help me accomplish the goals I wanted to achieve.  Although this process did not seem suitable for me, in some cases depending upon circumstances, it may be the best and sometimes the only alternative available.  I would encourage anyone considering the traditional litigation type divorce process to thoroughly learn about all the process alternatives before embarking down this path. I had heard about mediation.  From my research I learned that a mediator is an independent, neutral third party who attempts to help divorcing couples resolve their differences and come to mutual agreements.  The mediator may or may not be an attorney. Regardless, the mediator is not able to advocate for either spouse, provide legal advice, nor draft any legal documents for filing with the court.  Each spouse may have his or her own attorney during the mediation process.  The attorneys, if any, may or may not participate in mediation sessions depending upon the couple’s desires. At the conclusion of mediation, the mediator typically drafts a memorandum of understanding outlining any agreements reached.  An attorney would be hired by one of the spouses to draft the necessary paperwork, using the mediator’s memorandum of understanding as a foundation for agreements, and submit the paperwork to the court. The drafting attorney is only able to represent one spouse.  The other spouse may find another attorney to review the draft decree on behalf of their interests. I always recommend that each spouse has their own attorney to make sure that each has an opportunity to ask about the law and that each fully understands the implications of their agreement.  There is nothing that requires the couple to complete the mediation process, which can be withdrawn from by either spouse at any time. While mediation seemed a better alternative to me than the traditional litigation type divorce, it still was not quite what I was looking for.  I felt as though there had to be some other way.  I started scouring the web for more information on how to get divorced or “unmarried.” Oh sure, the do it yourself options are often mentioned, but our circumstances were too complicated—long-term 30-year marriage, property, etc.—for a do-it-yourself kind of approach. A do-it-yourself divorce might possibly be used in a short-term marriage when there are no children and little property.  Furthermore, I am a believer that you get what you pay for and a do-it-yourself divorce never crossed my mind given our circumstances. In my next post I will continue with how to get divorced by sharing with you what I learned about something I had never heard of before, a collaborative divorce.  You owe it to yourself to learn about this alternative process so please stay tuned for the next session of “Getting Unmarried.” What is a collaborative divorce? Read the continued series here.
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Love Design 2009 - OpeningLove and Divorce?  You don’t hear those words together very often.  After all, divorce means the end of love, doesn’t it? Well, yes and no. Yes, divorce means that a certain type of romantic love has ended, at least for one spouse. But having watched thousands of divorces over thirty years,  I have been an eye witness to the fact that much of the love lives on.  Certainly, when there are children, the love between the parents and their children does not go away.  Indeed, sometimes it emerges with even more strength in the way that all crises have the potential to draw us closer. I have even also seen love, or at least loving behavior, sustained by husbands and wives who choose not to fully extinguish a flame that once burned so brightly.   Admittedly love is an awkward word to use in this context and I have not often heard my divorcing clients use the word love when talking about their soon-to-be ex-spouse.  But love is more than just a feeling.  One of the Webster definition’s of Love is “the unselfish loyal and benevolent concern for the good of another.” People that divorce can choose to continue to have concern for their former spouse, for the sake of the children, for the sake of their own integrity, or simply because they choose to do so. Our divorce laws require couples to acknowledge an “irretrievable breakdown of a marriage relationship,” but it does not require people to forfeit their love and affection for each other and it actually encourages divorcing parents to behave in a way that shows concern for each other. One of the things I like about the Collaborative divorce process is that it allows and, where possible, even encourages, couples to behave in a loving manner. Indeed, next May, the Collaborative Law Institute of Minnesota, along with the Fetzer Institute is actually hosting a worldwide symposium to find ways to expand the ways that love, compassion and forgiveness can help divorcing families. So maybe, just maybe, for some courageous divorcing couples, love can have a lot to do with it.
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"Keep the Faith"You are a devout Christian and you think marriage should last forever.  Yet you somehow find yourself facing divorce.  No doubt you are feeling conflict.  You had hoped your faith would help you avoid coming to this place; and you may even feel guilty about the fact that you somehow have found your marriage ending, even if the end of the marriage was not your fault. Certainly if you believe your faith can help you salvage a happy marriage, you owe it to yourself to work to save the marriage in a manner consistent with what you believe.  However, if the marriage cannot be saved, this may be the time to ask yourself if your Christian principles can guide you during this most difficult time in your journey. Christianity challenges its believers to practice love, compassion and forgiveness, even under the most difficult circumstances.  In a divorce you will find yourself, at some point, sitting across the table, from a person who you at one point felt a deep sense of love.  Yet, the fear and anger and distrust fueled by divorce may trump all of those feelings.  In addition, the behavior in your spouse during the divorce may not inspire a sense of love and compassion. Still, Christian principles of love and forgiveness and compassion are meaningless if they cannot be applied to the trials and tribulations of divorce.  A faith that challenges us to love our enemies and to turn the other cheek must, at minimum, challenge us to rise above our feelings of anger and fear. Of course, a commitment to love and compassion do not mean that other principles of self preservation must be abandoned.  The issues of a divorce will also require you to work to protect yourself, and your children.  Is there a way to practice Christian love and still protect your family? As a divorce attorney, I have worked with hundreds of Christian clients and devout people of other faiths who struggle with these issues.  Sadly, I have seen some who have allowed the emotions of the divorce to put their faith on hold as they embraced an “all bets are off” approach and treated their spouse as a true adversary. Thankfully, in recent years, I have also worked with many clients, primarily in the Collaborative Process, who have drawn on their faith to find the courage to truly live Christian Principles through their divorce. The Collaborative Process, by taking clients away from divorce and providing an entire team of professionals, is designed to help divorcing people bring their best selves to the table.  For Christians, that can often mean drawing on principles of faith to face some of the most difficult trials and tribulations.