collaborative divorce process Archives | Page 8 of 8

October 22, 2013

Part 2: Having lawyers that are fully committed to settlement creates better outcomes. A Collaborative Divorce is one in which the husband and the wife each retain a lawyer for settlement purposes only. Hiring a lawyer for this defined purpose has some risk. The success of Collaborative Divorce is based on the fact that, in most cases, the benefits far outweigh the risks. In order to understand why this is true, let’s look at the basic risks and benefits. Risk: At the beginning of the case, both parties and their lawyers sign a Collaborative Commitment stating that the lawyers must withdraw if either spouse decides to fight in court. Therefore, the Collaborative Commitment creates a risk that you will need to switch attorneys during the divorce process. Indeed, that is the very idea behind the commitment. How significant is the risk? In my experience of around 500 Collaborative Cases, the parties have had to switch attorneys approximately 5% of the time. By comparison, in my experience practicing in the traditional model (cases where the lawyers can go to court), the parties switched attorneys, or the attorneys withdrew from representation for other reasons, almost 5% of the time. So, in reality, the risk that clients need to switch attorneys by starting in the Collaborative Process may not be significantly greater than in a non-Collaborative case. Benefits: The most significant benefit from the Collaborative Commitment is that the attorneys are free to focus all of their attention on more creative settlements. Removing, or at least significantly diminishing, the threat of court, opens the door to interest-based negotiation. Instead of using argument, accusation and threats of court, which are taken off the table, the attorneys advocate for their clients by using creativity, empathy and the development of shared goals. What clients seem to want, in almost all instances, is a form of advocacy (meaning protection of true interests), without creating animosity. In traditional practice, I sometimes felt like a bull in a china shop, unable to go in and help my client get what he or she truly needed, without risking damage to fragile, but important, things like the ability to co-parent and communicate effectively. Collaborative Divorce, by removing court as an immediate threat, allows me work to help my clients with far less risk to the relationship and other intangible goals. Of course, the success of Collaborative Divorce can depend on more than just the Collaborative Commitment. Specifically, the best outcomes in Collaborative Divorce are achieved with a) a high level of commitment by the clients and 2) the skill of the professionals. The keys to success in those areas will be discussed in the next two blogs in this series. For immediate information in these areas go to www.collaborativelaw.org or www.divorcechoice.com. Check out Part 3 of this series, here.

October 21, 2013

Part 1: What is Collaborative Divorce? Collaborative Divorce has spread rapidly throughout the world during the past two decades and has helped thousands of families achieve better outcomes. This series of blogs will focus on how people facing divorce can achieve better outcomes through a Collaborative Divorce. This first blog starts by providing this simple definition of Collaborative Divorce: A divorce in which the husband and the wife each retain a lawyer for settlement purposes only. That’s it. While Collaborative Divorce has many other elements, this one feature defines the process. As simple as this seems on the surface, it is easy to get confused about what Collaborative Divorce means for two reasons: First, because the word “collaborative” is an adjective, (essentially meaning “working together”), that has been around for centuries, the word collaborative, (without a capital c), could be used to describe many divorces where people work together. However, in legal terminology, the phrase Collaborative Divorce (capital C), has come to define a specific divorce process in which the attorneys are retained for settlement purposes only. In a Collaborative Divorce, unlike a traditional negotiation, the lawyers must withdraw if the divorce cannot be resolved out of court. Second, while using lawyers for settlement purposes only is the one defining feature, Collaborative Divorce often has many other elements that add greatly to the success of Collaborative cases. For example, Collaborative Divorce is often a team process in which the clients work with financial neutrals and mental health professionals in addition to attorneys. In addition, Collaborative Divorces generally use a very different method of negotiation called “interest-based negotiations.” These features allow people to get better outcomes in their divorce but are not part of the definition of Collaborative Divorce. Some Collaborative Divorces do not include all of these features. The basic defining characteristic of Collaborative Divorce, (the fact that the lawyers must withdraw if the matter goes to court), was introduced by Stu Webb, a Minnesota attorney in 1990. Stu’s simple but profound idea was that committing to settlement only would open the door to a new way of doing things that would help families get better outcomes. Indeed that is exactly what has happened. Great innovations like working with full interdisciplinary teams and using interest based bargaining are two of the common feature of Collaborative Divorce that have evolved as part of the Collaborative Divorce process as a result of this great commitment. Understanding that Collaborative lawyers are hired for settlement purpose only is the first step in truly understanding Collaborative Divorce. The next step is to understand why that commitment is so essential to the success of Collaborative Divorce. Understanding the strength and value of the Collaborative Commitment is covered in the next blog in this series. For immediate information on these and other questions about Collaborative Divorce, go to www.collaborativelaw.org or www.divorcechoice.com. Read Part 2 of this series

September 13, 2013

My previous posts have covered: Making the decision to get divorced and searching out the various processes on how to get divorced, including collaborative divorce. From my way of thinking, which is not necessarily how anyone else might think, the next step for me was to talk with my spouse. So filled with my newfound knowledge about collaborative divorce this is what I proceeded to do. While I was hopeful we could agree to use the collaborative process, I also realized that getting both of us to agree on this would be one of my biggest challenges. I think we both felt certain about divorce, now it was how to accomplish it. I spoke with her one evening (we were still living in the same house) and discussed what I had learned about collaborative divorce. I had a couple of brochures (not attorney specific material) provided by the attorney I had decided to work with, along with a list of about 10-15 collaborative attorneys and their contact information. I talked about the benefits for both of us in using this process (see my last post). I encouraged her to look over the material and to speak with another collaborative attorney or several so she could make an informed choice. I was still hopeful after this discussion that she would agree to a collaborative divorce. In the back of my mind, I had some doubts simply because during our 30 some years of marriage, there were many times when we would not agree on what I thought were issues of significant importance. A few days later my former spouse told me she had contacted another attorney, not one of the several listed as collaborative attorneys. She told me that this attorney recommended against a collaborative divorce, stating it was not necessarily less expensive or less stressful. It wasn’t until later when I found out she had talked to an attorney who was well known in family law circles as someone who vigorously opposed collaborative divorce due to the fact that if issues could not be settled, both of us would have to find different attorneys to represent us going forward. I wrote about this in a my previous post about collaborative divorce. What I liked about this feature was it put everyone, including attorneys, on the same side of the fence sharing the goal of reaching agreements without court. I ask you to think about this for a minute. The attorney I talked to did both traditional divorce litigation and collaborative divorce work. She could have recommended either. My attorney recommended collaborative divorce after listening to my desired goals. The attorney my spouse talked with only did traditional litigation divorce, and so what do you think she was going to recommend. Did that attorney talk with my spouse about my spouse’s goals? Whose interests were being placed first? While the answer to this question seems clear to me, Go to my website and under “about us” click on the Collaborative Divorce Knowledge Kit. Especially look at page 2, outlining the differences between collaborative and litigation processes. I’ll let you decide for yourself which process places your interests first. It wasn’t until later, well into the divorce process, I found out this attorney had a reputation for contentious litigation, driving up costs for legal fees, and stretching out the time it took to get divorced. My spouse ended up hiring this attorney. It was my worst nightmare. Of all the attorney’s she could have hired she chose this one. Oddly, this should not have come as a surprise to me, and looking back now, maybe it didn’t. But it sure was a huge disappointment, to say the least. Hindsight being 20/20, if I were to go back and do something different, it would be to have asked my spouse to attend a meeting with a collaboratively trained coach. In most cases this would be a mental health professional, (not a therapist) and me together to further explore the benefits of a collaborative divorce vs. a traditional divorce and our own individual and joint goals for this process. While I have doubts my spouse would have attended such a meeting, since she had previously declined to participate in marital counseling, I wish I would have known at the time to ask for such a meeting. My advice to any divorcing couple is to take advantage of utilizing a collaborative coach even when exploring divorce options. I wish I had. But always remember it takes two to effectively collaborate. In my next post of “Getting Unmarried” before I get into my actual divorce process experience, I’ll talk a little more about choosing an attorney.

September 11, 2013

It turns out that dogs are great teachers about relationships. My dog recently taught me that I cannot get him (or anyone else) to do something simply by being right. Being right will not get you what you want in a relationship, and may even drive a deeper wedge between you and what you want. Our family recently adopted Jack from the Humane Society in St. Paul. Jack is a sweet, somewhat shy, dog who started his journey in Alabama. I think about Jack spending time in a shelter in Alabama and then riding in a kennel for the long drive to Minnesota–multiple kennels, surrounded by unknown dogs, poked and examined by well-meaning vets and volunteers and then coming to a new house with new people. So Jack was living a high stress life for at least the two weeks before he came into our lives. One night during his first week with us, I took him outside to pee before bed. Jack had been outside several times that day, but he hadn’t peed. I needed him to pee so we could sleep through the night. Jack was skittish, and easily distracted. Just as I thought he was going to go, a dog in a neighboring house started barking and Jack moved out of position. He pulled on the leash and wanted to go back inside. I knew the right thing for Jack. He would feel much more comfortable all night if he just peed. I bet 10 out of 10 people on the street would agree with me. After 12+ hours, peeing is a good idea. I was tired, and I was worried about him. I became impatient. My voice took on an edge as I got more and more frustrated that he would not do what I was asking. I was right, after all. But it didn’t matter to Jack. My frustration, impatience and insistence only made him more stressed. And less likely to pee. What Jack needed was a way to reduce his stress. Staking out the factually correct position and insisting did not help Jack reduce his stress. This is true for anyone in a relationship. Couples going through a divorce sometimes get hung up on being “right,” but that’s not going to lead to an agreement if the other person is stressed out. Sometimes you have to back off and let the other person relax and reach their own conclusion. We work very hard to minimize stress for everyone in the collaborative divorce process. It helps people reach durable agreements. Jack never peed that night. The next morning, we were both refreshed, the sun was shining and I sat back and let Jack take his time. He peed, and we were both happy.

September 9, 2013

A recent article in the New York Times suggests that big-money divorces provide lessons for less-wealthy couples. Regardless of a couple’s income or net worth, several questions are common to most marriage dissolutions, including:

How can we create a parenting plan that will benefit our children?
How can we divide our assets fairly?
How can we maintain control of divorce costs?

The Collaborative divorce process uses a team model to provide the information and support necessary to allow couples to reach mutually satisfactory answers to these questions. As the New York Times article points out, Collaborative divorce “focuses on getting to a quick, fair resolution.” A thoughtful parenting plan consists of more than a schedule of overnights. A Collaborative child specialist can help parents craft a plan that addresses the individual and developmental needs of their children. Discussions often include such issues as the schools the children will attend, future relationships with extended family, introduction of significant others, and future moves by either parent. Sometimes parents can reach agreements regarding possible future events, but often it is sufficient to agree on a process for resolving future differences of opinion. Either way, including such agreements in the parenting plan can provide a framework for the years ahead. Similarly, achieving a fair division of assets can be challenging. A Collaborative financial professional can assist with collection of documentation, valuation of assets, and tax considerations. Once both parties understand the relevant information, they generate and evaluate various settlement options to determine the best arrangement for their family. While keeping the costs of divorce as reasonable as possible is a worthy goal, conflict is expensive. In litigation, each spouse hires their own experts, often resulting in extreme positions, elevated emotions, and a sluggish process. Collaboratively trained neutral professionals, whose fees are shared by the parties, provide more expertise at a lower cost. Their neutrality also reduces the likelihood of impasse due to either spouse’s unrealistic expectations. If you are interested in learning more about the Collaborative process, please visit the Collaborative Law Institute of Minnesota website for more information.

August 30, 2013

In a collaborative divorce process – there are usually tissues on the table. When a client first comes into an attorney’s office to tell their story or learn about divorce, it can be emotional and scary. Some people cry. Some of those tears come from sadness, fear, or worry about the future. Some people feel guilt or are mourning the loss of a relationship. Whatever the emotions are, in collaborative divorce, it is alright to express them. Indeed, expression of emotion can be key to the process – help clients process the transition and be more honest in the negotiations. Sometimes, clients cry quietly and silently in the process. The team may keep the process moving or take time to acknowledge the emotion. Clients can always take a break or ask for a moment alone. Silence may be a useful way to acknowledge the emotion. At other times, emotions may run hot and anger can result in intensified behavior. The team may choose to discuss the emotions or use a coach (mental health professional) to help keep emotions productive in the meetings. Clients may cry during joint meetings or when meeting with other professionals. Some clients cry while a lot others hardly cry. In a recent joint meeting, two clients were sharing each of their desires to spend Christmas morning with the children. The attorneys asked each client to express their personal reasons in the meeting. In front of the attorneys and the other spouse, they each shared their thoughts on this subject. Wife cried during her turn – the emotions were pure and real. After a moment of silence, Husband’s attorney acknowledged her emotion, saying “I know that was hard and I thank you for sharing your thoughts.” Husband expressed empathy as well. When he spoke, he acknowledged her by saying “It’s hard for me to share my thoughts now because I know how important this is to you.” Emotion is real and the collaborative process allows for its expression. Indeed, there will always be tissues on the table.

August 12, 2013

How do you turn a divorce process into a healing process? By envisioning your highest goals for what you want to accomplish during the divorce and after the divorce has ended. This is what happens in a Collaborative Divorce process. Unlike the traditional divorce process where the focus is often what happened in the past, the collaborative divorce process focuses on the future.

At the commencement of a collaborative divorce, the divorcing couple identify and share their vision for a healthy divorce and a healthy life after divorce. Here are some of the visions couples have shared with me in my work as a Collaborative Divorce attorney.

Beth and Peter’s Vision Children

For our children to see us co-parent with each other in a non-conflictive way.
For us to live in close proximity to each other while raising our children.
For us to live in stable environments while raising our children.
For our children’s lifestyles to be affected as little as possible by our divorce within the resources available to us (e.g., emotionally and educationally; that we continue with the educational plans we have made for our children; that our children live in the same community).
For our children to have as much stability and security in their lives as they require.
For us to be fully involved with raising our children.

Financial

For both households to be financially resilient.
For us to develop independently in terms of financial security.
To have the flexibility in one’s work schedule to be present with the children as their schedules require.
For Beth to have the opportunity to explore educational, training, and other career opportunities with the goal of becoming financially independent.
To respect the financial decisions made by us and our families, including the decision of Peter’s family to leave him money.

Relational

For us to be in a co-parenting relationship our children can count on.
For us to be respectful of each other into the future.
For us to create a new, healthy family relationship with each other.
For us to look back on this difficult time in our shared life and be proud of how we handled a time of conflict and communicate it to our children when the time is right.

Erin and Matt’s Vision (no children)

That we have confidence in the decisions we make.
That we make a transition to a friendly relationship when completed with the collaborative divorce process.
That we have a feeling of peace and resolution.
That we have a positive financial outcome that meets both of our needs.
That we both have financial security.
That the emotional distress of the divorce is minimized.
That we are able to promote cordial relationships with each other’s extended family and mutual friends.
That we keep in mind the possibility that Erin will move out of the State.
That the settlement take into consideration Erin’s need to finish school.
That Matt is able to remain in the homestead and maintain a reasonable budget.
That Erin is able to purchase a modest home and meet her living expenses.

Jeff and Ann’s Vision

For our children not to feel divided.
For our children to feel comfortable with both of us.
For us to convey a sense of harmony to our children.
To have financial security for both of us.
To get along with each other after the divorce; to have mutual respect for each other; and to have a pleasant relationship.

Creating a vision of the future is the key to crafting settlements that achieve those visions. And so the healing begins.

May 23, 2013

Spousal maintenance, or alimony, is one of the most difficult issues in divorce. How much? How long? Can it be modified? These are the questions that must be answered by divorcing couples. Faced with having to support two households rather than one, money is usually tight. Both parties wonder if they’ll have enough, creating fear all around. Clients ask me, “What would a judge do in my case?” The Minnesota spousal maintenance statute instructs the court to “consider “all relevant factors, including” and lists eight such factors. Predicting how a particular judge will apply the statute in a particular case is impossible. Looking at previous decisions in other cases involving the issue of spousal maintenance can also prove frustrating. Few cases are actually decided by the courts, and the facts in every case are unique, making comparison difficult. Minnesota is not alone in its lack of guidance on this issue. A recent article in the Wall Street Journal reported that several states are currently considering proposals to amend alimony laws. Some of the proposed changes include creating formulas to determine the amount and duration of spousal support. Others call for an end to permanent alimony altogether. While consistency and predictability are admirable goals, I question whether new legislation will produce fairer outcomes. Asking a judge to apply the law can be frightening. Having to live with a third-party’s decision can create resentment. So how can divorcing couples resolve this difficult issue without giving up control of the outcome? The Collaborative divorce process uses interest-based negotiation to guide discussion of spousal maintenance. A financial neutral (hired jointly by the parties) guides them, using the following steps:

Help both parties identify their goals and interests
Gather all relevant information regarding income and budgets
Generate settlement options
Evaluate settlement options
Put the agreement into writing

The Collaborative process requires full disclosure of all financial information by both spouses and encourages honest, respectful discussion. Because both parties have actively participated in the creation of their support agreement, they can move forward with less fear and resentment. This process represents the best way I have found for divorcing couples to resolve this challenging issue. To learn more, visit the Collaborative Law Institute of Minnesota website.

April 24, 2013

As a divorce attorney, I often ask myself “What is this dispute really about?” This is also a good question for each person going through a divorce. In an early case I had before I started practicing collaborative divorce, an ex-wife sued my client after the divorce was final. Her motion said that he had wrongfully taken the Tupperware and her maternity clothing and she wanted those items. We actually had a court hearing on this and her ex-husband had to get on the witness stand and testify. He testified that he did not have the Tupperware and he did not have and had no use for her maternity clothes. That brought out a chuckle from those in the courtroom and the judge stifled a grin. The motion was denied and I felt like we “won.” Looking back, I now realize that the divorce did not resolve some underlying issues which caused the dispute to keep on going. In a traditional divorce, the legal issues control the outcome in court and the emotional issues determine how long and how costly the dispute is. In a collaborative divorce, both the emotional and legal issues are acknowledged and addressed. The process we use focuses on the interests the parties have – and in my experience most of those interests are shared by both. If there are differences, those are discussed. The basic facts needed are incomes, values of assets, debt balances –which can easily be verified by documents. Those assets that are harder to value such as homes, businesses – can be valued by a neutral expert agreed to by both The emotions of anger and perceived wrongs of the past can impede progress in reaching a final agreement. In a collaborative divorce, a neutral coach who is a mental health professional working with the couple, helps them work through those impediments to a settlement. If you are going through a divorce, you want to avoid arguing about the Tupperware and get some help to focus on what your real interests are and how you can reach an agreement.