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.
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?
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.
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.
- 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.
- 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.
- 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.
- 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.
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
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.