collaborative divorce process Archives | Page 2 of 8

February 22, 2018

There is a “new” way of going through divorce that puts clients in charge. It’s called “Unbundled Legal Service” and it means that the clients get to have legal advice without having the lawyers take over the full case. This allows clients to get legal advice, and whatever else they truly want, without having to pay lawyers to do things they could do themselves. The word “unbundled” may seem like a strange phrase if you did not realize there was a bundle in the first place. Most clients do not realize that, when they retain a divorce lawyer in the traditional model, the lawyer is authorized (sometimes even required) to engage in the full range of services, from information gathering, to responding to all relevant communications, to reviewing all documents related to the case. Unbundling lets the client choose which things the lawyer will do for them; and which things they will do for themselves. This provides an opportunity to have more control over cost and, sometimes, acrimony. Lawyers charge high hourly rates. When they are providing important legal advice or analyzing complex issues, these hourly rates can be a very wise investment. The decisions you make during your divorce can impact your finances by tens of thousands of dollars and, helping you make important decisions regarding your children may be priceless. On the other hand, paying your lawyer to wait at the courthouse, or drive downtown, or gather your bank records, does not make economic sense. In addition to helping clients save some of their resources for themselves, unbundling can free up funds for clients to spend on other important resources, such as a child specialist to help them co-parent their children, a financial expert to help them make good financial decisions, a coach to help them with communication, or a therapist to help them adjust to the emotional impact of the divorce. While unbundling of legal services is being heralded as a brave new trend, it is, in many ways, a throwback to an old idea; the attorney as “legal counsel” – a concept that was much more common in earlier days. It is only recently, in the more adversarial climate of the past century, that the notion of lawyer as “hired gun” has become widespread. Frustration with both the acrimony and expense of the adversarial approach have caused many divorcing people to forego getting legal advice altogether. Unbundling, or the renewal of attorneys as legal counsel, is allowing people to have the best of both worlds; sound advice combined with control over cost and acrimony. Unbundled divorce has many different variations. One popular form of unbundled divorce is called Collaborative Divorce, where clients choose to have the lawyers focus solely on settlement. Because 97% of all cases settle, hiring lawyers to focus only on settlement helps clients make sure that their legal fees are spent on things that matter to their future. To learn more about Collaborative Divorce go to www.collaborativelaw.org and www.ousky.com.

January 6, 2018

Divorce has a way of completely upsetting one’s expectations for the future. One day things are moving along just fine, and the next you are making decisions that will impact the rest of your life. One of the big decisions is whether or not to keep the family home. It may really be two questions: “Should I keep the house?” and “Can I keep the house?”. Let’s consider both in turn. Whether you “should” keep the home is more of an emotional question. What does the home represent to you? Often it is an emotional safe haven full of good memories that you have spent years getting just right. It could also be an emotional roadblock to moving forward with your life. “Can I keep the house?” is more of a financial question. Will your income post-divorce allow you to maintain the house? Will taking the house in the divorce mean forgoing other marital assets such as retirement accounts, that may be more valuable in the long run? Perhaps keeping the house will require keeping your ex-spouse as co-owner, do you want that? Due to its functionality, your house is an asset different from a stock or retirement account. So, in many cases, the decision is a compromise focused on the question: “How long should I stay in the house?”. If you are unsure of the best way to handle the house, there are 3 exercises that you should go through to determine your best decision or when you should expect to sell.

Develop a post-divorce budget to see if you can afford to keep the home. Perhaps with child support it may make sense to stay. When the kids go, the house may need to go as well.
Run a retirement projection to see how keeping the home will impact your retirement and other financial goals.
Finally, list the benefits and tradeoffs of keeping the home. The benefits may be proximity to work and school. A tradeoff may be that you are now in charge of the upkeep.

There is no doubt that a house is treated different from a retirement account. Even so, it needs to be viewed with an honest and objective lens to determine how it will influence the unfurling of your new future as you blossom into the new you.

July 10, 2017

In parts 1 and 2, we defined vortex as: 1) a whirling mass of water or air that sucks everything near it towards its center; 2) a place or situation regarded as drawing into its center all that it surrounds, and hence, being inescapable or destructible. As discussed in previous months, the “divortex” can be avoided by choosing the Collaborative Process. Prior articles describe what Collaboration is – it is a process that avoids court and may use a team of experts to help clients create the best settlement option possible.

The professionals on a team are, generally speaking, the two attorneys, a neutral financial professional, a neutral child specialist, and a neutral divorce coach. Although the inclusion of financial and mental health professionals in the divorce process is nothing new, the manner in which they are used in the Collaborative process is unique. The attorneys’ roles are different in Collaboration, as well. While each spouse retains his or her own attorney, the attorneys work together to help the clients achieve an outcome that works for the entire family. The attorneys give legal advice to their individual clients, but more importantly, they help their clients realize what their interests and goals are. The objective of Collaboration is to get to a place where everyone is OK (a win-win) rather than a win-lose. The attorneys are trained in the Collaborative model and interest-based negotiation. A financial neutral helps the divorcing couple with property division and cash flow. Financial neutrals are financial experts and are CPAs, CDFAs, and CFSs who are trained in the Collaborative process and who understand the legal process. A child specialist is a neutral who helps the couple with creating a comprehensive and viable parenting plan. The child specialist is a therapist who is also trained in the Collaborative process. The child specialist is the voice of the children and not only helps the children during the divorce process, but helps parents help their children during this transition. A divorce coach is also a therapist and a neutral in this process. The coach’s role is to the help the couple communicate better. It is important for each spouse to have a voice in this process and the coach can help with that. In high conflict cases, a coach helps the process move along more smoothly. Although it seems like there are a lot of professionals involved in Collaboration, every professional has a specific role. In a non-collaborative case, the attorneys are acting as financial advisor, child specialist, and coach. And while attorneys can help with those pieces of the case, attorneys are not experts in those areas. In the Collaborative process, you get the best advice from the various professionals who are trained to help you reach a settlement. Consequently, a Collaborative team CAN help you avoid the divortex!

October 4, 2016

A collaborative law colleague recently wrote a lovely piece in the Boston Globe describing his reasons for leaving his litigation practice behind and representing clients only in alternative dispute resolution processes. His article resonated greatly with me. I too left behind a litigation practice to enter the world of peacemaking. While not an easy choice at the time, I look back six years later and realize that these years have been the most fulfilling of my career. I have not stepped foot in a courtroom in almost six years. I am thankful for many things in my current “out of court” career, but here are just a few:

I spend my days working with clients on resolutions that meet their big picture goals.
My conversations and negotiations are fruitful, honest and genuine. The teams I work with and clients who choose me are seeking this type of interest-based negotiation without gamesmanship or posturing.
My colleagues are professionals with passion and dedication to help people through transitions in their marriage – many are my friends, including attorneys who are on the “other side” representing my client’s spouse.
I can be creative in tailoring outcomes to meet my clients goals.
We can tailor my work to each client and what they need and want out of the process.
I am a peacemaker who is at peace.

Peacemaking professionals provide the best experience for clients. I share my own story as a practitioner in the hopes that potential clients will read this and get a sense of who I am. Knowing that, clients too may choose a path of peacefulness.

September 30, 2016

My family is going through Olympic withdrawal. Well, O.K., not really. But we watched the events we were interested in and rooted for Team U.S.A. Of course, Michael Phelps stole the show, and Ryan Lochte stole the…well, let’s not go there. At any rate, it was interesting. What continues to stick with me, though, is the catchy phrase in one of the commercials (I don’t remember which commercial) but it’s from Maya Angelou’s “Human Family” poem. As in the commercial, the poem ends with, “We are more alike, my friends, than we are unalike.” This phrase is repeated twice in both the poem and the commercial. The rhythm is undeniable, and the words unforgettable. The truth is…we are. This made me think back to one of my sociology classes in college, and those human traits that are universal, regardless of the country, village, or tribe in which a person lives: a smile represents happiness; crying signals sadness; and we all need food, water, sunlight, and air to survive. As the poem goes, “In minor ways we differ; in major, we’re the same.” Certainly, in our families we are, to some extent, the same. So, when the “leaders” of a family decide to part ways, their differences should be relatively minor, right? Sadly, depending on the divorce process the couple uses, those minor differences could blow up and out of control. It doesn’t have to be that way. In the Collaborative divorce process, the goal is to find common ground and focus on the items the divorcing couple agrees on (the “alike” part). “Keep the children out of the middle.” Check. “Let the children attend the same school.” Check. “Make sure everyone’s needs are met.” Check. We focus on similarities, needs, and “alikeness”, and therefore interests, rather than differences and positions. We aren’t that different. At least we aren’t that different in major ways. Unique, we are. So, let’s not invent imaginary differences, which can create major conflict. That takes so much negative energy. Using a process that focuses on the positive, the “alikeness” of the two people ending the marriage is certainly more, well, human.

September 12, 2016

Vortex: 1) a whirling mass of water or air that sucks everything near it towards its center; or 2) a place or situation regarded as drawing into its center all that it surrounds, and hence, being inescapable or destructible Sound familiar? In Minnesota, it’s tornado season, so many of us in the Midwest think of a tornado when we think of a vortex. Regardless of where you live, if you are going through a divorce, this definition might sound like something you experience rather than something you see, and so, the term Divortex seems appropriate. Unfortunately, too many people have the vortex experience when they divorce. It is all too true: the whirling mass of chaos, negativity, and craziness suck everything into its center. The tornado analogy continues with “destroying everything in its path…leaving nothing but…rubble.” Not a pretty picture. You don’t have to be part of this, however. Divorce is devastating. No one plans to get divorced. Marriages end for various reasons. There is undoubtedly anger and sadness. The clouds roll in, the thunder begins, and it rains. For a long time. But, the divorce process shouldn’t make your relationship worse. Unfortunately, the legal process often turns the rainstorm into not only a flash flood, but a tornado. The legal process contributes to the mess, and thus, the divortex forms, sucking everything into its center: your time, money, emotions, plans, life, EVERYTHING. You have absolutely no control over what it does or where it goes. You are helpless and at its mercy. All you can do is go to the lowest level (which happens inadvertently in litigation) in your home. Stay away from windows. And if you are a person of faith…pray. If you aren’t a person of faith, well, it’s never too late to start. With all due respect to the judges who hear and decide family cases, especially the difficult ones, court IS a whirlwind. You just never know what will happen. Fortunately, you can choose a process where, believe it or not, there is at least a faint glimmer of a rainbow at the end. (Probably not a pot of gold, but a rainbow, nonetheless.) Selecting Collaboration is the first step. You and your spouse decide what the outcome will look like (not a judge). You and your spouse have a voice and participate in the meetings and the decision making. Using a team of trained professionals, you will create your own rainbow. If you want all the colors of the spectrum, perfect! If, however, you’d rather have the cooler colors of green, blue, and indigo, you got it! No one is judging. Really. Sound too good to be true? Nope. (And no worries, I’m not going to bring unicorns into this story.) Next time, I will discuss HOW Collaboration can help you avoid the Divortex. Stay tuned.

September 6, 2016

As many know, because Minnesota is a no fault divorce state, one spouse not being ready does not need to stop the process from moving forward. The ready spouse can file for divorce and the process moves on in court with little control of the reluctant spouse. A potential client recently came in for a consult and, as often is the case, her husband was struggling to move forward in the process. They were at very different points on the divorce readiness scale – she was ready, he was not. This is quite typical. The other spouse is sometimes called “reluctant” or “in denial.” When one spouse is looking for a non-adversarial, out-of-court alternative (like mediation or collaborative divorce), there is more of a need to bring that other spouse along. The reluctant spouse really can delay the process and interfere with the non-reluctant spouse’s desire to divorce. This potential client said something very interesting to me. She said, “I know I am committed to collaborative divorce, but I am learning that this does not have to be a collaborative decision.” This realization was profound. She realized that she could control the process (with her husband’s agreement), even if her husband never agrees with the decision to divorce. It is common during the divorce process to have spouses be at different comfort levels with the decision to divorce. These levels of readiness can change throughout the process and even vary greatly from one meeting to another. The challenge often lies with helping the reluctant spouse commit to a collaborative process, while acknowledging his or her disagreement with the process. A good collaborative attorney can strategize ways to bring the reluctant spouse into the process and help move things forward. Ways to teach him or her about the divorce options and lay out the pros and cons of different processes for divorce. To learn more, contact Kimberly Miller.

August 23, 2016

When getting divorced, it is important to have a support network. Having a sounding board and friends to talk through things with can help you evaluate options. They can remind you that you are not alone. Acquaintances who have gone through divorce themselves or who have certain expertise (like financial or real estate), may be able to help you with some of the decisions. Everyone needs someone to talk to. However, sometimes well-intentioned people can cause more harm during the divorce process than good. Everyone seems to have a neighbor that somehow obtained a “better deal” than you did. They either received more in settlement or support than you are considering or they paid less than you. This “Greek Chorus” phenomenon can slow down progress and make a collaborative process more difficult than it needs to be. When reaching out to others for support during divorce, keep the following things in mind:

Remember that you live with your resolutions. If something feels right to you, it might be best to not let your friends talk you out of it.
You can always ask your support network to just listen.
Figure out how you feel after talking through things with certain friends – if it doesn’t make you feel better or more positive about resolutions, they may not be the best support.
If you ask for advice, be very specific about what you are asking for and let your support know that you may not take their advice, you are just gathering information.
Be careful if you seek advice on one piece of the settlement without considering all elements.
You can always use your collaborative attorney as your sounding board instead of peers. Your friends and family can support you in other ways.

August 17, 2016

My husband and I were taking our kids to swimming lessons when we saw a man and woman standing outside the facility arguing. The anger and negative energy were palpable. While still in the parking lot, we met up with another family we know, and we exchanged uncomfortable glances as the conversation between this couple became more heated. “Awkward,” my friend whispered. As we approached, I could hear what they were arguing about, and the expletives were flying (this is a family place, mind you, and my kids were five and two at the time – yikes!) The woman was saying, “I don’t give a $*&^ what you think. You can’t have that #$&* sleep over when it’s your weekend with our son. You are such an ^*&+@! We aren’t even divorced yet.” My five year old glanced up at me with an odd look on his face. Oh boy. I wondered if they had attorneys and what process they were using. Even though I see this sort of conflict on a regular basis, it was very uncomfortable to witness. I’m not sure if my discomfort was because I couldn’t do anything about their conflict (I was there as a mom, not a lawyer) or because my children were in earshot. For a fleeting moment I did, however, consider going up to them. I felt compelled to inform them there is a better way to deal with this “stuff” and that a child specialist and divorce coach could get them to a better place regarding “adult sleepovers.” That was the lawyer in me. Since we were running a bit behind, however, the mom in me picked up my two-year-old and hurried my son through the door. Either way, I felt bad for this couple, and even worse for their child. I wondered how old their son was and if they had made a scene near the pool when they decided to “take it outside.” I will never know how their divorce turned out. I can only hope that things cooled down at some point so they could focus on co-parenting their child. It’s understandable that emotions are highly charged during a divorce, which is the reason a divorce coach and child specialist are incredibly helpful during the process, as well as a therapist or counselor. Stop. Breathe. Think. And talk to a mental health professional.

June 30, 2016

As a collaborative attorney, I am often asked “what would a court do?” Although parties in a collaborative divorce are not asking the court to make decisions in their case, what the law is and how a court may view an issue is important. It is part of the information that a client needs to understand to truly make a decision in their own best interest. I recently attended an education series with local judges to gain an understanding of the current state of the law. In the second part of this 2 part series, I outline some of the factors a court may consider in making litigated decisions. On property division and cash flow, here are some of the considerations:

When dividing assets and liabilities, the courts often begin with an accounting and confirmation of all real estate, accounts, retirement assets, investments, stock options, inheritances, gifts, debts, personal property, vehicles, and all other possessions.
The courts have to differentiate between marital property that was created or acquired during the marriage and non-marital property that should stay with one party. Non- marital property may include assets from before marriage, gifts or inheritances, and student loans.
Non-marital property stays with the receiving party. Marital property is divided equitably. This is often interpreted as equally, although there are some exceptions if the outcome is deemed unfair.
Division of property is a separate question from cash flow (child support and spousal maintenance).
Child support in court is often calculated with the guidelines based on percentage of overnights with each parent and incomes. Then medical expenses and extra curricular activities are shared by percentage of income.
Spousal maintenance or alimony is a discretionary area of the law. It is based on the needs of the recipient and the ability of the other spouse to provide support.
Court requires an analysis of budgets and income or potential income of both parties. It can be difficult to address income if a party has not or is not working.
Some of the factors for determining support include: length of the marriage, education and age of the spouses with regard to work ability, work history, parenting needs of children, and reasonableness of expenses.
Because spousal maintenance is one of the most discretionary areas of family law, it is difficult to find consistent outcomes in the court as every case is decided based on the individual facts (and judge).

A collaborative process is a different paradigm but clients have the same legal rights as parties in court. Know what the law is and what a court may do and then make well informed decisions. A good collaborative attorney can help in this journey.