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blog picWhile researching for this post, I came across a number of divorce-related blogs.  The blog medium provides an efficient and concise opportunity to share information and educate the public.  This blog focuses on the collaborative process — where clients commit to an out-of-court, non–adversarial process. Here are some other blogs that may provide additional information as you navigate the divorce process:
  • Jeff Landers writes in Forbes Magazine about complex financial issues that women face in divorce.  He is a Certified Divorce Financial Planner who has extensive experience with high asset divorces.  His blog is informative and financially savvy.
  • Divorced Girl Smiling is a personal blog written by a woman during – and now after her divorce.  It is a personal account of her experience, as well as a gathering of resources for others who may be going through the same thing.  The archived blogs provide a great path through the litigation process, and provides some insight into why a non-adversarial approach may be better.
However you choose to get advice, being armed with information and prepared for the process can help you feel confident and ready for the transitions that come with divorce. There is a lot of information available online, if you know where to find it.
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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.
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73582147-wedding-cake-top-with-groom-bride-and-lawyer-gettyimagesWhen a couple divorces, the final decree or order from a Court typically dictates how property shall be divided, how the children shall be parented, and what support will be paid moving forward.  The decree will give you the dates and amounts of payments.  The decree will also tell you what amount each of you is awarded of accounts or who shall keep the house.  But there are some things a divorce does not dictate. After a divorce is final, here are six things you (or your attorney) should do to finalize the division and move forward:
  1. Divide cash accounts. Bank accounts and investment accounts can be divided on your own. You both may need to work together to close joint accounts or transfer funds from one individual account to another. At the end of the process, you should have no joint accounts unless you have agreed to own something jointly.
  2. Pay-off and close joint credit cards. Joint credit card should be paid off and closed. You can take care of this on your own.
  3. Divide retirement.  Retirement accounts need to be divided precisely as outlined in the decree. Non-qualified plans (like IRAs) can be divided with a copy of the decree and direction from the account holders – you can do this on your own.  Qualified plans (like pensions, 401(k)’s or 403(b)’s) need a court order and you will have to have your attorney draft this or hire a consultant.
  4. Property title transfer. Title for any real estate that was awarded in the decree needs to be transferred to the individual owner. This can be done with a quit claim deed or order from the court that needs to be recorded with the county property office.
  5. Health insurance. Set up your own health insurance if needed or work with your former spouse to continue coverage for them.
  6. Estate planning. Your original will (if you had one) is no longer valid after divorce so you will need a new one.  Hire an estate attorney to draft up a new will.
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601840767-pink-tulip-field-lisse-netherlands-gettyimagesWith the recent warm weather and longer days, it is beginning to feel like Spring. Spring is a time of rejuvenation and growth. As the sun comes out and the temperatures rise, flowers blossom and buds sprout.  People are out exercising and enjoying the warm weather. After a long, cold winter, as the days get longer, the community collectively is re-emerging. It is an optimistic, forward-looking time. There are a number of similarities to Springtime and the re-emergence after a divorce.  When someone initiates a divorce, it often causes the fear and negative emotions to increase. There is added anxiety in the process, knowing that you have started but not yet really resolved anything. The divorce itself may feel like winter.  You may feel isolated to stuck in a lonely process. You may have a hard time appreciating the positive things in your life and instead focus on the cold, scary parts. But once resolutions are found, it is a new beginning. Indeed, a collaborative divorce process (where both clients work together out-of-court on resolutions) can lead to meaningful resolutions that establish a great foundation for the future. Mutually acceptable resolutions and a process that supports and nurtures both spouses, can lead to a new normal.  Once in place, those resolutions can feel like a whole new life. Like Spring, it can feel like the future is positive and there is potential for emotional and financial success. Relationships can feel refreshed or reinvigorated. People may have better mental health and feel good about moving forward. Like an extra bounce in your step or deeper peace — re-emerging from divorce has great possibility. There are options when you are divorcing. The collaborative process is a truly future-focused process that supports you during the process and then sets you up for success afterwards.  So, if you are contemplating divorce, know that it gets better. There is a springtime waiting for you.
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482143431-thought-bubbles-above-frustrated-couple-gettyimagesIn an election year, we are exposed to an abundance of rhetoric.  As candidates debate and advertise to convince people to vote for them, I listen for words reflecting respect, dignity, the ability to listen deeply and the capacity to work effectively with those who may hold different beliefs. High conflict resulting in governmental gridlock puts people at risk, especially those who are most vulnerable. Yet listening to potential leaders, I hear repeated versions of  “I will never compromise.” Though this may be intended to project strength and resolution, does it not also sound rigid and contentious? What human values does this type of rhetoric represent? How expensive in time, money and emotional resources does endless gridlock become for the people depending on resolution? Divorcing parents are faced with the necessity to make many decisions affecting the future of their family. Their children are the most vulnerable family members, counting on their parents to work things out. What happens to children when their parents disagree and then refuse to compromise? When parents become rigid and disrespectful of each other, how does the ensuing gridlock impact their children? How expensive in time, money and emotional resources does this process become? Collaborative Practice is a method of alternative dispute resolution incorporating the values of respect, honesty and fairness. From the beginning of the process, clients are supported by their attorneys and by neutral professionals on their team to engage in interest-based negotiation to ensure both parents’ true concerns are heard, rather than positional negotiation that can easily lead to heightened conflict and expensive gridlock. For more information about how Collaborative Practice might work for your family, please check out the website of the Collaborative Law Institute of Minnesota.
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180248003-rowing-teams-oars-close-up-gettyimagesDo you need a divorce team and if so who should be on that team? If you are going through divorce or plan to do so you should think about who you want to have on your divorce team.  Who you have on your team depends on the process you have chosen. If you are headed down the traditional litigated divorce path your attorney will be your lead team member and possibly could be the only team member. Oh sure you may bring in experts of your own and when you do experts of your soon to be ex will suddenly appear. This is unlike a collaborative divorce where neutral professionals are commonly utilized.  In mediations you may or may not have neutrals or you can also have experts, if you will, that are only on your side.  The difference is in a collaborative divorce the neutrals are working together with you and your spouse to help you reach agreements.  These agreements satisfy both of your needs and interests versus you both having your own experts refuting each of your positions with opposing viewpoints.  When this opposing positions scenario appears it requires some outside third party to make decisions for you since you and your spouse cannot make those decisions yourselves.  This ends up being a crapshoot and most likely results in decisions neither one of you are very satisfied with. In a collaborative divorce the entire team works together for the benefit of your family.  Who are the potential team members and their roles in a collaborative divorce? Attorney:   
  • Provides legal guidance, counsel, and advice to you
  • Supports you in resolving the areas of dispute that arise
  • Cooperates with other Collaborative team members to guide clients through the process
  • Works in joint meetings with both clients and the other attorney to create legal documents to necessary to complete the process
  • Are professionally licensed as attorneys
Coach: 
  • Helps clients effectively communicate during the process which can minimize conflict and lower cost
  • Helps to maintain a safe environment to discuss difficult issues with mutual respect
  • Helps you with advocating for yourself
  • Helps you minimize emotions to better manage reactivity to stress
  • Is licensed as a mental health professional or a Rule 114 qualified mediator
Financial Specialist:
  • Identifies and evaluates tax consequences
  • Assists clients with developing spending plans (budgets)
  • Develops current and future cash flow analyses
  • Helps clients/attorneys generate and evaluate financial options
  • Guides the team discussion on financial matters
  • Is professionally licensed as a financial expert
Child Specialist:
  • Provides neutral guidance and education to parents
  • Helps parents create “we statements” to talk with their children about the divorce or break up
  • Meets with parents and children to obtain developmental information, identify family strengths and identify goals to meet children’s needs
  • Meets with children to assess their hopes and needs for the future
  • Gives feedback to parents and professional Team members about the needs of children
  • Assists parents in the creation of a developmentally responsive Parenting Plan
  • Works with the Neutral Coach to strengthen parents’ co-parenting relationship
  • Is licensed as a mental health professional
Does every divorce require each of these team members? Not necessarily. A divorce with no minor children or a divorce from a very short-term marriage say less than three years for example, with few assets and liabilities may not require anyone other than an attorney. However, in divorces from longer-term marriages if minor children are involved, there are a number of assets, and liabilities it would make sense to utilize a child specialist and a financial specialist. If your goals and those of your spouse are genuinely concerned about future relational issues with your soon to be former spouse or extended family members, I encourage you to explore the use of a coach trained in collaborative divorce. A coach may be very helpful if you have concerns about challenging communication issues with your soon to be former spouse. The use of neutrals can be very cost effective. Neutrals are usually employed at lower hourly rates and in some cases significantly lower rates than attorneys. The value added benefit beyond the lower cost structure for using neutrals is they are experts in their respective fields. Attorneys are experts in the legal aspects of divorce not so much so in the financial, child development, and relational aspects of divorce. Only you can answer the question of do you need a team and if so who should be on that team. It does depend on the divorce process you choose and your unique circumstances. Choose your process and your team wisely!
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straight-ahead-Collaborative divorce is an out-of-court, non-adversarial process for dissolving a marriage. It is common for one spouse being ready to move forward with divorce and the other spouse struggling to move forward in the process. Parties can be at very different points on the divorce readiness scale – one is ready, one is not. This is quite typical. The spouse not wanting to move forward is sometimes called “reluctant” or “in denial.”  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. However, when one spouse is looking for a non-adversarial, out-of-court alternative (like 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. It is interesting to think that one spouse can be committed to a collaborative divorce, but divorcing may not have to be a collaborative decision.  So one party can control the process (with the other’s agreement), even if the other 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.  
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154502639-man-finding-jobs-gettyimagesWhen one spouse in a divorce has been unemployed for an extended period, it can often be a frightening situation for that particular spouse.  It can also be frightening to the other spouse.  This fear shared from opposite perspectives can lead to heightened conflict and tense communications.  This conflict and challenged communications can impede the entire divorce process.  However, it does not have to be this way. What if in the divorce process, there was a way for someone to explore these fears from a deeper perspective? The spouse who has been unemployed for some time, perhaps because of child rearing responsibilities, is extremely anxious or downright scared about how they will ever be able to make it. The employed spouse is anxious and downright scared they will forever face having to support their non-working spouse.  Both have legitimate fears and concerns. Let us look at some options that may help both at least minimize some of these fears. In a collaborative divorce , professionals, whether they are coaches, financial specialists, child specialists, or attorneys, have access to tremendous resources to help couples in this type of situation.  Vocational assessments can help determine a person’s aptitude for specific job classifications and what the expected salary ranges are for beginning, mid-level, and more experienced levels.  Sometimes additional training may be required to either add new skills or perhaps update skills from the past. Career coaches can help with packaging (marketing) a spouse for employment, resume creation, interviewing skills, and a game plan with target dates for employment. This type of effort requires genuine commitment on the part of the spouse seeking employment and the spouse who is employed.  The commitment comes in the form of the unemployed spouse diligently working with the vocational counselors and coaches to follow recommendations provided. Commitment from the employed spouse comes by supporting the spouse seeking employment both emotionally and financially.  When this commitment is genuinely felt by both spouses, good things can happen. The unemployed spouse will be able to obtain employment at a more rapid pace, which in the end serves to boost their confidence and self-esteem. This can have a mushroom effect to fast track the non-working spouse to employment with higher earnings. If the employed spouse sees progress to help the non-working spouse with employment, their fears of having to fully support their non-working spouse forever can be significantly reduced. Sounds like a win-win to me. The keys to all this happening is commitment, transparency, and genuineness from all involved including spouses and members of the divorce team. Of course, if you do not have a divorce team and are stuck in a more traditional divorce process, the commitment, transparency, and genuineness more than likely does not exist at all. This begs the question of which divorce process do you really want to pursue?  A collaborative divorce provides an environment described above where you and your spouse make decisions together that are in your best interest.  A more traditional or litigated divorce process is a process often forced upon you and then someone else makes decisions for you that affect your future.  Stop and think before you choose.  Choose your process wisely.
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89024943-hispanic-girl-with-hostile-parents-gettyimagesThe Week recently printed an article on negative impacts of divorce on children.  You can read the article here.  It is a summary of research done around the world demonstrating how divorce negatively impacts children. Unlike the commonly known impacts of divorce on children and future relationships, this article identified some of the lesser known outcomes.  For example, children of divorce are much more likely to begin smoking in their lives as well as end up on prescriptions for ADHD (such as Ritalin).  Children of divorce often find less success in school and are more likely to drop out of school.  The article also points to research illustrating that children of divorce have more health concerns than children who’s parents remain married. What the article fails to explore is how the process of divorce may impact these outcomes. Parents can choose the process to divorce.  They could have an adversarial process, wrought with harsh communication, positional negotiations and overall negativity.  However, an alternative, peaceful process, such as collaborative divorce can preserve the positives in a relationship and help children thrive after the divorce is final. Divorce does not have to result in long-lasting negative outcomes.  A divorce done well, with care and concern, respect and honesty, can often lead to family structures that are better off than they were before the divorce.  Children can be protected in that process and have positive futures.  The negative consequences in the article are real (obviously the research shows as much), but a divorce done right can lead to much better outcomes for everyone. Contact a collaborative law professional if you want to learn more about divorcing well to protect everyone in the future.
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BLD077218In the Twin Cities, many family law attorneys offer a free consultation to learn about your options.  This is a time to meet your potential new attorney and ask your questions.  The consultation can serve three main purposes. First, you can learn about your divorce options.  There are four general processes for divorce:
  1. pro se/unrepresented where you go through the process without legal guidance;
  2. mediation where a neutral third party helps you come up with the agreements;
  3. collaborative divorce where both parties commit to a respectful out of court process with lawyers and other professionals guiding the process; and
  4. litigation, the court-based traditional process.  A good consultation should educate you on all of these options.
Second, the consultation allows you to learn some basic information about the issues in a divorce.  The attorney can discuss the main legal issues that need to be decided during a case – such as child custody, parenting time, spousal maintenance, or property division.  Clients often have specific questions about these categories and what may or may not be relevant to their situation. Third, the consultation allows you to get to know someone and see if it is a good fit for legal work.  One of the most important aspects of a consultation is the opportunity for you to meet a potential attorney and see if you will be comfortable working with them. Your attorney is your guide. You may cry or express anger in front of this person – you need to feel comfortable doing so. In addition to legal adeptness and zealous advocacy, you also must be comfortable and trust your attorney. This is perhaps the most important element of the relationship. You should know that when you are just meeting an attorney for a consultation, the attorney cannot give you legal advice or answer legal questions with certainty. Because the consulting attorney does not have a client relationship, you and your spouse could meet with the attorney together. This is often a good way for you both to hear information together. When you receive the same message, you often feel less adversarial and more like you are both seeking a guide for the process. Please contact a collaborative attorney for a free consultation to learn more about your options.