In Part 1, vortex was defined as: 1) a whirling mass of water or air that sucks everything near it towards its center; 2) a place or situation regarded as drawing into its center all that it surrounds, and hence, being inescapable or destructible. The second definition provides a visual for what many think a divorce “looks like.” While the end of a marriage is emotionally tumultuous and devastating, the actual legal process of uncoupling does not have to be. But, it is critical that you choose a process that promotes healing. The Collaborative Process does just that. Collaboration is a holistic approach to divorce. It can be utilized by couples who are ending either a marriage or significant relationship, or who have a child or children together. Although some people question whether it is an appropriate process when domestic abuse or mental health/chemical dependency issues are present, many others think it can (and should) at least be attempted. If you don’t want to be another “divorce horror story,” the Collaborative Process will likely be a great fit. Collaboration focuses on the future (i.e., the relationship of co-parenting in two homes) rather than the past (i.e. the vilification of one spouse); is a win-win for both partners (rather than a court-imposed win-lose); and emphasizes the well-being of the entire family. You don’t air your dirty laundry in court, and you aren’t (literally) judged. In fact, you never set foot in a courtroom. The negotiation model is interest-based/win-win, rather than positional/win-lose. You pay attorneys to help you solve problems, not argue and keep you stuck in the past. Every family is unique, so every family deserves a unique solution. And if you have young children, please keep in mind they need you present and available. You can’t be present when you are fighting the other parent in court. In Part 3, we will discuss the various professionals in the Collaborative Process and how their expertise can help you avoid the divortex.
A collaborative law colleague recently wrote a lovely piece in the Boston Globe describing his reasons for leaving his litigation practice behind and representing clients only in alternative dispute resolution processes. His article resonated greatly with me. I too left behind a litigation practice to enter the world of peacemaking. While not an easy choice at the time, I look back six years later and realize that these years have been the most fulfilling of my career. I have not stepped foot in a courtroom in almost six years. I am thankful for many things in my current “out of court” career, but here are just a few:
- I spend my days working with clients on resolutions that meet their big picture goals.
- My conversations and negotiations are fruitful, honest and genuine. The teams I work with and clients who choose me are seeking this type of interest-based negotiation without gamesmanship or posturing.
- My colleagues are professionals with passion and dedication to help people through transitions in their marriage – many are my friends, including attorneys who are on the “other side” representing my client’s spouse.
- I can be creative in tailoring outcomes to meet my clients goals.
- We can tailor my work to each client and what they need and want out of the process.
- I am a peacemaker who is at peace.
When getting divorced, it is important to have a support network. Having a sounding board and friends to talk through things with can help you evaluate options. They can remind you that you are not alone. Acquaintances who have gone through divorce themselves or who have certain expertise (like financial or real estate), may be able to help you with some of the decisions. Everyone needs someone to talk to. However, sometimes well-intentioned people can cause more harm during the divorce process than good. Everyone seems to have a neighbor that somehow obtained a “better deal” than you did. They either received more in settlement or support than you are considering or they paid less than you. This “Greek Chorus” phenomenon can slow down progress and make a collaborative process more difficult than it needs to be. When reaching out to others for support during divorce, keep the following things in mind:
- Remember that you live with your resolutions. If something feels right to you, it might be best to not let your friends talk you out of it.
- You can always ask your support network to just listen.
- Figure out how you feel after talking through things with certain friends – if it doesn’t make you feel better or more positive about resolutions, they may not be the best support.
- If you ask for advice, be very specific about what you are asking for and let your support know that you may not take their advice, you are just gathering information.
- Be careful if you seek advice on one piece of the settlement without considering all elements.
- You can always use your collaborative attorney as your sounding board instead of peers. Your friends and family can support you in other ways.
While 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.
In 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:
- pro se/unrepresented where you go through the process without legal guidance;
- mediation where a neutral third party helps you come up with the agreements;
- collaborative divorce where both parties commit to a respectful out of court process with lawyers and other professionals guiding the process; and
- litigation, the court-based traditional process. A good consultation should educate you on all of these options.
Collaborative Divorce was started in Minnesota 25 years ago and has spread to more than 20 countries because it meets two basic needs felt by divorcing couples around the world. What does it mean to say that a divorce is Collaborative? First, it is important to understand that difference between the formal Collaborative divorce process (with a capital C) and the use of the word collaborative. To be collaborative simply means to work together and, in that sense, any divorce in which people work together could be described as collaborative, (small c). However, the Collaborative divorce process is something distinctly different. Most people want to keep their divorce amicable, and Collaborative Divorce gives them the tools to work out of court to make that happen. At the same, people facing divorce want to know that they are protected; that they have someone looking out for their interests. Collaborative Divorce provides each party with an attorney who will work with them to help them achieve their most meaningful goals. In a Collaborative Divorce, the attorneys must withdraw if the matter goes to court in an adversarial proceedings. That is the one rule. A rule that is simple and yet, changes the entire tenor of the divorce negotiation. It is a great example of addition by subtracting. By subtracting one element, (the ability of the lawyers to fight), a door is opened to add many more valuable tools (true interest based-bargaining, teaming with financial experts and mental health professionals, deeper solutions, etc.). That one change redefines the negotiation and creates a ripple effect that, if handled in a skillful manner, creates many more options. People sometimes hire aggressive lawyers, reluctantly; believing that their spouse will be aggressive and that they, therefore, need to “fight fire with fire”. The problem, of course, is that fighting fire with fire means there is a great risk that someone (maybe everyone) will get burned. Collaborative Divorce, with the agreement not to fight, is intended to put out the fire, so that you, and your spouse, can build their future on solid ground. That is not easy to achieve. It requires skill and commitment. An attorney who cannot use argument and fighting must have other skills. Equally important, clients who intend to achieve their highest goals without fighting must be prepared to work on developing other skills as well. To learn more about the Collaborative Process and to find experts with skill and experience in this area, go to www.collaborativelaw.org or www.divorcechoice.com.
Ask anyone who has ever gone through a divorce whether they have recommendations for how the process could have gone better and I bet they would have a list of ideas. They would likely identify a need for their legal counsel to have communicated more frequently with them and to have helped more to educate them about their options at each step of the process. They would likely say they worried that their legal counsel had a perverse incentive to provide more services (more hours of billable work) seemingly regardless of the effectiveness of those services because they billed by the hour and the client didn’t see or understand much of the work that the attorney was doing. Many professions, including law and medicine, are rethinking the most basic aspects of the services they provide and how they provide them and are defining new ways of doing things. I was reminded of this when reading an article in the New York Times titled When Medicine is Futile, which addressed the issue of whether medical providers are sometimes (or even as a matter of standard office policy) over-treating patients during end-of-life medical care. The article brought up the issue of whether medical providers—in the name of patient protection and patient care—may actually be working against the patient’s best interests (even affirmatively harming patients) by administering an inappropriately excessive—and futile—list of medical interventions. The article references a new report by the Institute of Medicine titled Dying in America: Improving Quality and Honoring Individual Preferences Near the End of Life (2014). Some of the recommendations for improved care include increased provider-patient communication, education of medical providers in alternatives such as palliative care, increased patient planning and decision making, and different payment structures that may better align with patient care quality more than just the quantity of the services provided. The gist of the recommendations to improve patient care relate mostly to increased communication, increased education of providers and patients about alternative options, and creating systemic incentives to reward quality patient care over simply providing a high quantity of billable services. Similar to a hospital emergency room, courtrooms offer intensive and expensive services. In the court system, attorneys rack up immense billable hours based on providing clients with a large quantity of paperwork to submit to the court. In the courtroom, attorney-client communication, client education about their options for resolution and client power to make their own decisions can be lacking. The legal system, like the medical system, is going through a paradigm shift where legal service providers are rethinking even the most basic aspects of the services they provide and how they provide them and are finding new ways of doing things. Collaborative Practice providers implement best practices similar to those recommended for the medical profession referenced in the report mentioned above, only in the area of legal representation instead of medical care. In the Collaborative process, there is an increased focus on the quality, rather than just the quantity, of legal services. This change in focus is inherent in the agreement of the clients and attorneys that they will not go to court to resolve their conflict as part of the Collaborative process. In the Collaborative model, clients meet with a team of professionals to share information, learn about alternatives that might not have been considered, and evaluate their options in an open discussion. This provides clients with increased knowledge about their options, increased communication with professionals, and true decision-making authority.
A friend of mine who knows I am intricately woven into the divorce-planning and alternative dispute resolution circles in the Minneapolis St. Paul metro recently asked me if I knew a certain divorce attorney. He knew of a person who was not feeling too well about their choice of a divorce attorney. I told my friend that I did not recognize the name. Being a little curious, I searched the web for this individual. What I found was that family law was one of about eight other areas of law this person practiced. I wondered just how much family law this attorney does in relationship to all the other practice areas listed. Little does my friend know, his question inspired my writing this blog post. Would you go to a painter if you needed a new roof? Would you go to a heart surgeon for a fractured arm? Hardly, you say. Why is it then when people have decided to end their marriage they first choose to see someone who is not a subject matter expert in the areas causing conflict between them and their spouse? They want this person to fix all their problems when that person probably does not have all the skill sets to solve all of the issues that present themselves in a divorce. I would submit that there is no one person who has all the skill sets necessary to effectively deal with all the intricacies of a divorce. Perhaps the conflict is about co-parenting the couple’s children. Would it make sense to seek out a neutral child specialist to help the parents sort out the rough spots and more importantly benefit their children for years and really for their lifetime? Maybe the conflict is over financial matters. You would think a neutral financial specialist would be able to offer the most value to the couple in those situations. A couple not able to communicate effectively may benefit the most by seeing a neutral divorce relationship coach who can help both spouses manage their emotions which in turn frees up the flexible thinking they will need as they work through getting unmarried. If legal questions arise, you would think an attorney who primarily works in family law matters would be the best resource. What I have described above is the client centered team model approach to a collaborative divorce. A team of professional experts in their own subject matter areas working for you and your family’s behalf. If you would like to learn more about this respectful and dignified way to divorce without court click on www.collaborativelaw.org to check it out.
In 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!
In Part I of Getting Unmarried, Money and Divorce, I talked about the two financial pillars of any divorce. The first being the balance sheet that lists every single asset and liability. The second being forward looking cash flow and support needs for children, if any, and both spouses. In this post, I will briefly cover some other financial issues common in many divorces. These include some discussion of marital and non-marital property, analyzing tax implications of various scenarios for child support and/or spousal maintenance; analyzing property and business interests, debt pay off scenarios, and comparing pros and cons of using one asset over another. A financial neutral assists with identifying what is marital and what is non-marital property. Marital property of course is that property acquired during the marriage. Generally, non-marital property is property owned prior to the marriage and brought into the marriage, inherited property, and or property received as a gift. Sometimes this can include a home where the down payment made with non-marital money, a retirement plan when the participant contributed to the plan prior to and during the marriage, or more simply a family heirloom passed down through the generations. Non- marital property generally remains with the receiver of the property and not considered in the allocation of marital property. When there is both marital and non-marital interest in an asset, a financial neutral can help determine the values of both the marital and non-marital interests. The tax implications for child support and spousal maintenance are different. Child support is not taxable income to the payee and is not deductible by the payer. Spousal maintenance on the other hand is taxable income to the payee and is deductible by the payer in most situations. A qualified financial neutral is able to help a couple determine an optimal combination of child support and spousal maintenance in order to provide the greatest amount of after tax income to the family. When a couple or one of the spouses owns a business, it is often helpful to determine the business value. If needed a specially trained neutral business valuation expert is engaged to provide this service. These trained experts employ a variety of valuation methodologies to provide an opinion as to the value of a particular business. Depending upon the complexities of the business the time and cost to complete a business valuation can vary. Debts are another financial area where clients can benefit from the insight of a qualified financial neutral. Facilitating how to allocate debt between two spouses is an important function of the financial neutral. The neutral may suggest the clients consider a number of options available including the potential of reducing or paying off debt with other assets. This can help a couple breathe a little easier when freeing up needed cash flow for living expenses by not continuing to carry current levels of debt. A well-trained neutral financial specialist helps divorcing clients see the big picture pros and cons of making a number of financial moves during settlement discussions. Clients are then able to make informed educated decisions concerning their financial future. The financial neutral is family centered in the collaborative process and makes every effort to assist divorcing clients reach agreements they both can live with. Only in the collaborative divorce process are clients able to achieve this level of client introspection and decision-making. Collaborative divorce is not for everyone. Is a collaborative divorce process right for you or someone you know? Click on this link to learn more and decide for yourself. www.collaborativelaw.org