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106905872I heard an advertisement on the radio this morning for a litigating divorce attorney. This attorney discussed the importance of removing the emotion from divorce and treating the divorce itself as a business transaction.  I understood her point – emotions can be messy or interfere with rational decision making. However, emotion is often the biggest part of divorce. Or, it often feels that way to clients. How can we ask clients to strip that piece out of the process? Rather, as a collaborative attorney, I believe that emotion can be used to healthily guide clients to mutually agreeable resolutions that have long-term staying power. I embrace the opportunity to take the client where they are at – emotions and all – and guide them towards resolution. Engaging a mental health professional or coach in the process can sometimes be the greatest asset provided to clients and allow them to balance the emotions with the necessary business-like decisions. Treating a divorce as a business transaction often leads to client’s making decisions for purely financial reasons. Using emotions and feelings of fairness or equity may lead to clients feeling as if the resolutions more completely address their needs. For example, if one spouse cheated on the other, an emotional response of anger or vindication may lead to the hurt spouse to ask for more financial pay-out. This sort of punitive outcome is not supported in the law and rarely agreed to out-of-court. However, if the parties have a co-parenting relationship or more emotional needs, a purely business-like interaction may never address some of the underlying emotions. Facilitating a discussion about how both parties are feeling and what they may need in order to move forward may been more beneficial to the clients than any financial resolution. Some clients want an apology or a better understanding of why something happened. Others may need to put in effort to establish a shared narrative or story for others. The finances matter – sometimes most of all. The collaborative process embraces the financial side of divorce, but also allows for a more holistic and complete approach that can address emotions, if the clients so desire.
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1. Forcing Your Kids to Take Sides The last thing a parent wants to do during a divorce is to cause more pain for the children. Divorce is a painful time during which many negative emotions can arise, including anger, fear, regret and grief. Often there is a perceived need to blame the other party for one’s unhappiness, together with a desire to hold your children close. However, keep in mind that putting your kids in the middle is harmful to them. Resist the urge to blame and criticize your spouse in your kids’ presence. Don’t force your kids to take sides or to report on the other parent’s activities. No matter how difficult it may seem, the best thing you can do for your kids during a divorce is to remind them that both of their parents love them and will always be there for them. 2. Engaging in an Adversarial Divorce Divorce is a major life event. It is the legal recognition that your marriage is over. Unless your situation is unusually simple (short marriage with no children and few assets and liabilities), each party should have an attorney to provide advice and to make sure that the required documentation is accurate and complete. For most couples, the divorce process can be completed without setting foot in a courthouse. Using skilled neutrals in the Collaborative Process or mediation helps to avoid the polarization that often takes place in more adversarial processes. Better post-divorce communication, lower divorce costs and less resentment are other benefits of no-court divorce processes. 3. Having Unrealistic Financial Expectations Divorce means creating two households in place of one. Most couples are struggling to make ends meet before separation. Creating a plan to support both households can be challenging. Unless income can be increased, down-sizing and belt-tightening are often required. There must also be a plan to pay divorce costs. Understanding these challenges going into divorce can provide both parties with a reality check and allow the divorce process to go more quickly and smoothly. 4. Forgetting to Consider Tax Implications Many of the financial decisions made in divorce have tax consequences, some more obvious than others. When dividing marital assets, it is important to recognize that some assets may actually be worth less than face value due to future income tax liabilities. Most retirement accounts, for example, have been funded with pre-tax earnings, meaning that withdrawals will be taxed and, depending upon the timing, may have early-withdrawal penalties as well. Stock portfolios will likely be subject to capital gains taxes upon liquidation. On the cash flow side, dependency exemptions and characterization of support payments (child support or spousal maintenance) impact the amount of after-tax cash each party has available to meet living expenses. It is essential to get competent advice during the divorce process in order to avoid unexpected surprises down the road.
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186820735In Part I we learned that advocacy in the “rights-based” Court Model is hard on the people involved because by focusing on the 3rd-party decision maker, e.g., the judge, the parties care little about each other’s view.  As a result, their relationship can become more adversarial.  In Part II we learned that by removing the decision maker in the “interest-based” Collaborative Model the parties become the decision makers who resolve mutual problems based on their defined future needs, interests, and goals.  But is the removal of the 3rd party decision maker enough to create a process that is truly “soft” on the people? Most people who have gone through a divorce agree that divorce is much more than a legal event.  More importantly divorce is about changing relationships, improving communication, establishing co-parenting, engaging in problem-solving, and securing a stable financial future.  But many divorce processes do not adequately address these more important concerns, thus limiting divorce to simply a legal commodity. To gain the added value of improving your relationship with your soon-to-be ex-spouse, of becoming successful co-parents, of mutually planning for the future, and of customizing your financial arrangement to meet the needs of all family members within the resources available, requires the assistance and expertise of NEUTRAL professionals.   These neutral professionals include a Neutral Financial Professional, a Neutral Coach, and a Neutral Child Specialist.  This team approach is the “secret sauce” used in the Collaborative Model that can transform the experience of this life event into something constructive, affirming, and even peaceful.  Obviously, this is of great benefit to children. Diagram - The Power of Neutrality 082814 In addition to the support and expertise provided, the neutrality of the neutral professionals balances attorney advocacy.  This permits the attorney to stay in the problem-solving and interest-based advocacy role for his or her client, while the neutral professionals hold the ground for resolution on behalf of the whole family.  This interdisciplinary, holistic approach to advocacy and expertise is what distinguishes the Collaborative Model from any other model out there. Collaborative professionals like to say this model contributes to world peace one family at a time.  If this approach makes sense to you, tell your friends, family, and colleagues about the Collaborative Model and contribute to world peace.
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78426475Money can be a major cause of stress in a marriage, so it should come as little surprise that solving money problems can be even more complicated in divorce. Divorce usually comes at a time of economic strain in a marriage and, of course, adds fuel to the fire by immediately adding additional expenses; the cost of a second home, legal fees and the cost of other divorce professionals. The fear of scarce resources can cause people to “fight for a bigger piece of the pie”. However, it soon becomes clear that, if both sides fight hard for a bigger slice of the pie, the  legal fees and other expenses of maintaining the fight will cause the pie to shrink and the fear of having too little to rise. So, how can couples rise above the dilemma of draining resources from a rapidly shrinking pie? Here are a few quick tips:
  1. Recognize that the most expensive part of a divorce is conflict. The desire to “lawyer up” and to focus on “winning” generally just creates economic loss for both parties. Most importantly, there are ways to protect your interests that work better, and put more money in your pocket, than gearing up for a fight.
  2. Look for true “win-win” solutions that can actually make the pie bigger. Believe it or not, there are ways to think creatively in a divorce that will actually help both you and your spouse get more resources; including ways to save on taxes and transaction costs and ways to build in true incentives for both of you to earn more income and/or spend less money.
  3. Improve your money sense. In the end, you will be left with your share of the assets, income and liabilities of the marriage. Your financial future will depend on your ability to manage your share, perhaps more than any other factor. Divorce provides an opportunity to improve your money skills, including your spending habits and earning power.
Collaborative Divorce, because it focuses on reducing conflict and increasing skills, and because it gives you the assistance of a neutral financial expert, provides many opportunities to improve in each of these areas. To learn more about the Collaborative options, and other ways to help address divorce financial issues  go to www.collaborativelaw.org or www.divorcechoice.com.
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People who are facing divorce after many years of marriage, or just later in life, face unique challenges. They are less connected by the need to provide daily care and financial support for their children. They also may be facing other life changes such as upcoming retirement or increasing health concerns (and costs!) as they age. Sometimes this has been called The Graying of Divorce. According to Mayoclinic.org, “Empty nest syndrome isn’t a clinical diagnosis. Instead, empty nest syndrome is a phenomenon in which parents experience feelings of sadness and loss when the last child leaves home.” It is a life transition where spouses can take a step back and look at how their lives are progressing. As part of this process of reflection, they may say to themselves: “I’ve put up with this long enough!” Alternatively, it might be a time when couples take advantage of having more time to explore new interests and activities to share together. A process that can be helpful to those considering divorce or separation is called Discernment Counseling. Discernment Counseling is different than regular couples counseling because–instead of just focusing on helping the marriage relationship–it focuses on deciding whether the marriage should be worked on or whether divorce or separation should be pursued. The University of Minnesota has a Discernment Counseling project has a helpful website that you may want to visit if you want to learn more about Discernment Counseling. If divorce is the path chosen, Collaborative Divorce is often a perfect option as it can help increase communication and mutual respect to the benefit of both spouses (and grown children!). A neutral financial professional can analyze retirement cash flow and budgets, including tax implications of withdrawing retirement funds. Empty Nest divorces have their own unique challenges. They also are an opportune time to be able to enter a process that the older divorcing couple can be proud of in creating a respectful transition to separate living and ending of their marriage.
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82830939In Part I we learned that “rights-based” advocacy in the Court Model is hard on the problem but also hard on the people. Advocacy in the “interest-based” Collaborative Model is also hard on the problem, but SOFT on the people. How is this possible? In the Collaborative Model, the parties voluntarily agree to reach a settlement outside of court. Thus the 3rd party decision-maker, e.g., the judge, is removed from the collaborative process. Instead, the decision-maker is the parties themselves!

Circle Diagram for Collab Model 082814

In order to reach a settlement, the parties must consider and honor the other party’s perspective. In the Collaborative Model, advocacy is not about the position a client takes on a particular issue, but about meeting the future needs, interests, and goals that are defined by the couple themselves. By framing the problem in terms of needs, interests and goals, parties are likely to see their dispute as a mutual problem that they must work together to solve. They now answer the question: how do we both get our needs and interests met? How does our family get its needs and interests met? Advocacy in the Collaborative Model encourages parties to look behind their opposed positions to determine the motivating interests. In doing so, the parties often find alternative solutions that meet the needs of both sides. Collaborative advocacy pays attention to balance, listening and being creative. Collaborative advocacy creates an incentive to work together, acknowledge the other, to be authentic and realistic. This kind of collaboration can occur only in an atmosphere that is respectful, transparent, and mutual; and one that incentivizes caring about the other party’s point of view with the removal of the 3rd party decision-maker. While being hard on the problem and soft on the people seems to be a contradiction, it is this contradiction that promotes better settlements and preserves needed relationships. Who knew that removing the 3rd party decision-maker could make such a difference! In Part III, I will explore how the power of neutrality is the secret sauce to a successful collaborative divorce.
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When you find out your son or daughter is getting a divorce, your first thought will often be about their children; your grandchildren.  How will the children be affected by all of this?  And how can you help; or avoid hurting the situation? During the 31 years I have been working with divorcing families, I have seen situations where the grandparents have really helped their children and grandchildren though a difficult time.  Sadly however, I have witnessed far more situations where they grandparents have, without realizing it, actually make the divorce more difficult for their grandchildren. You may be wondering; how can this be?  What type of person would actually make the divorce more difficult for their grandchildren?  Believe it or not, it can happen to the very best grandparents without them even realizing it.  Here are the two common mistakes that grandparents make:
  1. Facilitating a War by Creating a War Chest. Divorce is expensive, and your children may turn to you to help with the legal fees. If you have the capacity to help, it would seem, at least on the surface, to be the right thing to do to provide them with funding, at least in the form of a loan. While the financial assistance is sometimes helpful, sometimes it can actually add to the conflict. The thing that damages children the most is generally the conflict that so often happens when one or both parents are angry, sad or scared. If your children have enough funding, they can sometimes carry out the conflict through attorneys. If their funds are limited, the may be forced to look past the emotions and find solutions.  When I litigated divorces (something I can no longer stomach), some of the nastiest custody fights were funded by grandparents. All of the grandparents thought they were helping out their grandchildren. Usually they only perpetuated a fight.
  2. “Supporting” your child by reaffirming the evilness of their spouse. The emotions of divorce create distortions. The wonderful son-in-law that you heard about for the past 15 years, is now portrayed by your daughter as a monster. As you hear the stories of how badly he is behaving, you are aghast and quickly run to her support by suddenly remembering things that you never really liked about him. It may be that your son-in-law was not as great as you thought; and it may be that the divorce is bringing out his worst behavior. However, it is possible, (maybe even likely) that you are getting a distorted picture of this person and, adding to the distortion, (which can happen instinctively) may cause damage to the only father your grandchildren will ever know.
So, how do you avoid making these mistakes?  One way is to encourage your children to fully explore their divorce processes, so that they can be supported by attorneys and other professionals who will help them resist the distortions and the war mentality.  To learn more about these options, go to www.collaborativelaw.org  or www.divorchoice.com.
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467982755Potential divorce clients often ask, how much does a collaborative divorce cost? Great question, it differs with each case and is dependent on clients and their level of conflict regardless of process. The more conflict a couple brings to any divorce process the more expensive it will be. Bottom line, conflict is expensive. Butting heads together to argue positions vs. putting heads together to solve problems will always increase costs.  In a collaborative divorce, we focus on putting heads together which should decrease costs. As a financial neutral in the collaborative process, I have given this cost question serious thought.  I wrestle with how you define cost.  Do we measure cost only in terms of dollars and cents or is there something beyond the almighty dollar?  I think the latter. I remember a couple who owned a business that I worked with in a collaborative divorce.  By simply suggesting an alternative to using retirement fund money (client plan) to pay off a rather large debt, I was able to save them about $9,000 in income taxes.  I seriously doubt anyone other than a well-trained financial professional would have noticed this. What about the cost savings of better-adjusted children of divorce because of their parents taking a higher road with less tension and conflict allowing both parents to effectively co-parent to create and environment where children are not placed in the middle of parental conflict?  What about the cost of the stress and delays that typically occur with a traditional court based divorce?  How do you place a number on the cost of destroyed relationships with spouses, children, extended family members such as in-laws and friends?  How can one put a dollar value on these? Theoretically, a collaborative divorce should cost less.  Attorney involvement in a collaborative divorce is typically less than in a traditional court based model.  This occurs since other professionals, usually at lower hourly rates, provide many services historically provided by attorneys. Some attorneys choose not to become collaborative divorce practitioners because of this.  Some traditional court based attorneys will say they do not believe that it is in the best interest of their client to have to withdraw from representing their client if the case does not settle in the collaborative process.  The withdrawal provision if a case should go to court, is a key feature of collaborative divorce because it places everyone’s focus and interests, attorneys and clients, on finding solutions that take into account the highest priorities of both spouses and their children instead of arguing positions ad infinitum.  This committed agreement for attorneys and clients to settle is, in my opinion, a good thing for divorcing spouses.  It helps provide the framework for a less costly divorce and as I said earlier, I am not talking only about money. One of my goals working with couples or individuals is to reduce their divorce costs whenever and wherever we can so the family can keep more of its hard-earned money.  One very simple illustration of how a financial neutral helps lower costs is in gathering financial information necessary for any divorce.  It works like this.  The financial neutral gathers All the financial documents from the clients that attorneys will ultimately need such as ALL assets and liability account statements including bank and credit card statements, non-retirement investments and savings, pension and retirement accounts, real estate documents, business documents if any, tax returns, pay check stubs etc. The financial neutral then, organizes and presents all of this information to both attorneys.  Contrast this with each client having to provide all of this information to each of their attorneys.  Attorneys usually have the highest hourly rates.  Rather than paying two attorneys the couple pays, one financial professional, to perform this function.  This one-step in the process can easily save a couple up to two thousand dollars. When minor children are involved, a neutral child specialist will meet with the parents to help them create parenting plans that are in the best interest of the child.  The child specialist usually conducts these meetings without an attorney present. A neutral coach, when engaged by a couple, meets with the clients without attorneys to facilitate communication plans throughout the divorce process and looking ahead in the couple’s relationship post divorce. The child specialist and neutral coaches typically have the lowest hourly rates in the process of all professionals.  Sometimes clients choose not to hire a neutral coach.  In my experience, having a coach on board can help decrease tension and improve communication between spouses during the process.  Less tension and conflict should lead to lower cost and more importantly stronger relationships post divorce. Well, I really have not given you a definitive answer on how much a collaborative divorce costs, because I cannot.  Every couple and family is unique.  Couples themselves determine, often unconsciously, how much their divorce will cost.  Cost is directly a function of the level of conflict they bring into and maintain throughout the process. Ultimately, I think it boils down to what the couple wants.  If they want a largely attorney driven process and someone else to make decisions for them about their children and their future then perhaps the more traditional court based process is for them.  If on the other hand the couple wants to have less attorney involvement, make decisions for themselves and their children instead of someone else deciding then a collaborative divorce may be a better choice. If I could leave you with anything from this post, it would be to remember theoretically a collaborative divorce should cost less and that cost is more than just money.  You control your journey and your destination.  Choose wisely.
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Remember that old rhyme from childhood, “First comes love, then comes marriage, then comes a baby in a baby carriage”? Some things are just part of life and are simply inevitable. People will fall in love. People will join together in relationships. These are all positive, great things. Unfortunately, people—whether gay or straight—all have struggles in life and relationships. Inevitably, when Minnesota granted same-sex couples the right to marry, it was inevitable that same-sex divorces would happen, just as opposite-sex divorces happen. Gay couples who married before marriage was legal in Minnesota—whether they became married in another state or, because Minnesota borders with Canada, often in another country—may now face the need to obtain a divorce. If a gay couple separates and does not intend to share their lives together going forward, they should strongly consider finalizing their separation by obtaining a legal divorce in Minnesota. I have run into Minnesota gay couples who had no idea that they are now legally married. This viewpoint may be especially common for those couples who married in Canada years ago and then separated long before marriage was legal in Minnesota. For better or worse (pun intended), those couples continue to be married and need to divorce in order to clear up the division of their marital assets and debts. If they have children in common by adoption they need to determine their rights and responsibilities as to those children.  Even if there is a non-joint child, which is common in same-sex marriages, the “non-parent” may be able to establish legally enforceable rights to visitation because of their significant connection with that child. Again, this is even though they are not legally “their” child.  Because marriage creates an interest in real property (houses, etc.), the residence that the couple lived in or any other land and any mortgages (and any other debts) need to be addressed in the divorce. Before same-sex marriage was legal in Minnesota, it was difficult for same-sex couples to form legally enforceable rights and responsibilities related to a committed relationship. Perhaps that is why some same-sex couples have a hard time believing that they now must use the legal system to fully end their marriage relationship. By the way, I understand that Brangelina (Brad Pitt and Angelina Jolie, for those who don’t follow popular culture!) had declared they wouldn’t get married until same sex couples everywhere could get married…but apparently they couldn’t wait, because they were recently married. Well, my theory is that they had to wait until Minnesota made same-sex marriage legal (it just took a year to plan the wedding)! Without getting divorced, a gay couple may find out later, to their surprise, that one of the pair is making a claim to part of the other’s retirement account or is holding up the sale or transfer of property that was owned during the marriage, because simply living separately doesn’t resolve all these issues. I expect that many same-sex couples will be unpleasantly surprised later in life that when they hear that they have to share their retirement with a partner from long ago that they never intended to share their retirement account with. Or, an inheritance may be held up–or never received as expected by a son or daughter–because of a claim for all or a share of the estate of a deceased same-sex spouse. These are topics that are addressed well in the Collaborative Process because they can be approached from a perspective of respect and honoring of the love that the couple previously shared, while laying a foundation for future separate lives. Now that same-sex marriage is legal Minnesota, same-sex couples may likely find that the Collaborative Divorce process provides the proper legal, financial and other professional supports needed for disentangling the various legal rights and responsibilities incident to ending their legal marriage.
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140196937Parties going through a divorce need to understand that advocacy in the “rights-based” Court Model and advocacy in the “interest-based” Collaborative Model are different; and advocacy in each of these models feels different as well.  Bear with me while I examine Advocacy in the “rights-based” Court Model in Part I in preparation for discussing advocacy in the “interest-based” Collaborative Model in Part II followed by the “power of neutrality” in Part III.   Trust me, this is interesting. In a rights-based model, “rights” are independent standards of fairness or legitimacy that are formally established in law or contract.  Usually different rights or entitlements are at stake in a particular case.  Here, each party and their attorney is playing to the decision-maker, e.g., the judge, or playing to a prediction of what the decision-maker would decide based on application of the law to the facts of the case.

Diagram - Advocacy in Rights-based Model 082814

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