I recently met with a man (I’ll call him John) whose wife wanted to divorce. He was very much against ending the marriage. He went to the office of his wife’s attorney presumably to discuss settlement, but instead received his Wife’s proposal for settlement set forth in a Summons and Petition. Over the next six months, he attempted to meet with his wife to discuss her proposal or alternatively what could be done to save the marriage.
Though the couple was “getting along” while continuing to live together, no meeting took place to discuss the divorce or the possibility of reconciliation. When John came to meet with me, a collaborative divorce attorney, he handed me two un-opened letters he recently received from the District Court.
The first was a notice for an Initial Case Management Conference (ICMC) court appearance which he had missed. The second, was a notice for a default hearing the next day to grant the divorce! At issue, was up to $50,000.00 that John would lose if the divorce was granted based on his wife’s proposal in the Petition. Obviously, I advised John to appear at the default hearing and throw himself on the mercy of the court to delay the default hearing so he could participate in the divorce proceeding.
Regardless of whether or not John’s version of the facts are completely accurate, it can be confusing to know if and when a legal proceeding is commenced. In Minnesota, a divorce action is commenced when you are personally “served” with a Summons and Petition for Dissolution of Marriage. “Service” is most frequently accomplished when a person over the age of 18 years old—who is not your spouse—delivers you a copy of a Summons and Petition signed by your spouse, now called the Petitioner. If the Petitioner is represented by an attorney, the documents are also signed by the attorney.
“Service” does not need to be done by the sheriff or police. It is frequently performed by private process servers. It can also be performed by your neighbor or a relative. The documents simply needs to be handed to you by a person over the age of 18 (but not your spouse) who later files an Affidavit with the Court swearing on that date he or she delivered to you a Summons and Petition. Once service on you has been made, the clock starts ticking as to when you must respond to the Petition. If you fail to respond appropriately, the Court can grant the Petitioner a divorce based on the proposal set forth in the Petition.
This is what happened to John. He did not realize he was officially served when the legal assistant at the attorney’s office handed him a Summons and Petition. It was more confusing because the documents were not signed by the wife’s attorney. Instead, the wife signed the documents “pro se”, meaning she was representing herself. It became even more confusing because the parties continued to live together and the wife made no mention that an ICMC court appearance was scheduled.
The wife appeared at the court hearing, but never mentioned to John that he had failed to show up, nor did she mention the default hearing date. Nevertheless, John was at risk of having the divorce granted by the court. Lesson learned: Consult with an attorney if you are not sure a legal action has been commenced and open your mail!
By contrast, this could not happen if John and his wife had agreed to use a collaborative process for their divorce. In a collaborative process, the parties agree to commence the divorce together by signing a Joint Petition. No service is necessary. Everybody knows what is going on. Everybody participates equally in reaching a settlement before the legal documents are drafted and filed with the court.
I have since learned that John appeared in Court at the default hearing. As a result, the Court continued the hearing so that John could participate in the divorce. Whew! That was a close one.
Love and Divorce? You don’t hear those words together very often. After all, divorce means the end of love, doesn’t it? Well, yes and no.
Yes, divorce means that a certain type of romantic love has ended, at least for one spouse. But having watched thousands of divorces over thirty years, I have been an eye witness to the fact that much of the love lives on. Certainly, when there are children, the love between the parents and their children does not go away. Indeed, sometimes it emerges with even more strength in the way that all crises have the potential to draw us closer.
I have even also seen love, or at least loving behavior, sustained by husbands and wives who choose not to fully extinguish a flame that once burned so brightly. Admittedly love is an awkward word to use in this context and I have not often heard my divorcing clients use the word love when talking about their soon-to-be ex-spouse. But love is more than just a feeling. One of the Webster definition’s of Love is “the unselfish loyal and benevolent concern for the good of another.” People that divorce can choose to continue to have concern for their former spouse, for the sake of the children, for the sake of their own integrity, or simply because they choose to do so.
Our divorce laws require couples to acknowledge an “irretrievable breakdown of a marriage relationship,” but it does not require people to forfeit their love and affection for each other and it actually encourages divorcing parents to behave in a way that shows concern for each other.
One of the things I like about the Collaborative divorce process is that it allows and, where possible, even encourages, couples to behave in a loving manner. Indeed, next May, the Collaborative Law Institute of Minnesota, along with the Fetzer Institute is actually hosting a worldwide symposium to find ways to expand the ways that love, compassion and forgiveness can help divorcing families.
So maybe, just maybe, for some courageous divorcing couples, love can have a lot to do with it. 
Wow, the phrase “First vs. Second Wives” makes me cringe. There is so much wrong with it, or at least so much to dislike or be uncomfortable about.
Let me count the ways (Keep in mind that this is in the context of Spousal Maintenance).
It implies that there will be another wife after the first, which is a fair assumption, but still. It implies that the first and second wives will be at odds with each other over money, which is unfortunate and sad to think about. It implies that the husband, at least in his first marriage, is the breadwinner.
In our culture of perceived independence and self-sufficiency, it may strike us as dependent and therefore inconsistent with current cultural standards.
It uncomfortably reminds us that many spouses, most likely the wife and often for good reasons, give up career and educational advancement, and so their future financial independence and self-sufficiency, to stay at home with children for the benefit of the greater family. Then, if they divorce, they are in big financial trouble without consistent and lengthy financial support from their ex.
I’ve seen many couples divorce where the breadwinner doesn’t want to or just won’t acknowledge the homemaker’s non-financial contribution to the family and opportunity cost of being out of the workforce or taking a lower-paying, more flexible job. I’ve also seen many cases where the homemaker never left home after the kids were older, when it would have been more appropriate to find employment, because re-entering the job market was likely the original marital intent.
There is an interesting article in Time magazine’s May 27, 2013 edition titled “The End of Alimony” and a short radio segment, along eerily similar lines, on NPR titled “Alimony Till Death Do Us Part? Nay Say Some Ex-Spouses.” The basic premise of each is that there is growing momentum (but I’m not aware of any such movement in Minnesota) to limit Alimony court awards, or what we in Minnesota call “Spousal Maintenance.” The irony cited is that while ex-husbands used to be the only ones against Alimony, now second wives are also organizing to do away with Alimony, which their husband’s are paying to their ex-wives. The result, it is argued, makes for a pretty large constituency which legislators ignore at their own political peril.
There is no Spousal Maintenance calculator in Minnesota. Instead it is a case-by-case, facts-and-circumstances analysis.
One of the hardest, and grayest, part of the law in divorce is Spousal Maintenance. It often feels like pulling teeth to get a higher-earning spouse to even acknowledge that the lesser earning spouse has any reasonable financial need. Striking a balance to reach a fair outcome is the key.
Traditionally trained attorneys, in my opinion, often do a terrible job addressing Spousal Maintenance. Just bringing it up is likely to start a battle that is out of proportion to the reasonableness of the request.
That’s why Spousal Maintenance is a great issue to address with a Collaborative Divorce, because at the beginning of a Collaborative Divorce the attorneys and other professionals help the spouses identify their financial resources and shortfalls by analyzing their budgets in relation to their incomes. They also help the lower earning spouse explore their future career options (including going back to school) and therefore their reasonable financial need. The answer is not usually “yes” or “no”, in black and white. The initial answer is almost always “let’s evaluate this”, which is appropriate given the complexity of the question and the importance of the answer. 
My parents are 87 years old and I have recently had to face their realities which include limited mobility, increased health problems, and questions about whether they should stay in their home, go to an assisted living facility, or get in home care.
It has been hard to talk to them about these issues in part because they are still mentally sound , happily living independently at the end of a dirt road at the edge of the Superior National Forest and enjoying the birds and wildlife which they can only see there.
It was hard to make the phone call to them last winter suggesting that a drive at night to a special event one and a half hours from their home was not a good idea. Recently, after my mother suffered several falls resulting in hospital stays, it was hard to talk to her about the assisted care options . I found a good resource with the Minnesota Senior Link at 1-800-333-2433. I talked to someone who gave me a list of resources in their area.
These are decisions made by families every day. My family includes my parents, sister and brother, and extended family.
Luckily, we seem to be able to communicate and agree on what needs to be done. But there are some families where there are substantial disagreements and conflicts, or no communication at all. For those with disagreements, the collaborative process offers a way to resolve disputes. See www.collaborativelaw.org for professionals who can help you resolve these disagreements.
Abraham Lincoln, one of my heroes, spoke to a divided nation in 1861 and expressed a hope that everyone, north and south, would be touched by “the better angels of our nature”. 
These poetic words are often ringing in my ears when I sit with a divorcing couple hoping that they might be able to summon their best selves during difficult times. Divorce can be so emotionally challenging that it is easy to excuse people who cannot bring their better angels to the process. It would be wrong to judge anyone who, when facing divorce, becomes so blinded by fear or anger that they seem unable to summon their better natures.
Yet, as a divorce attorney, someone who has a responsibility to help clients achieve better results, I cannot escape the fact that my job requires me to help them, (and if possible their spouse) find their better selves. I do know from nearly three decades of experience that they will make better decisions and get better outcomes, particularly for their children, if they can find their “better angels”.
Until ten years ago, I did not think it was even possible to help clients find their better selves. Hardened by 20 years of practicing divorce law, I had come to believe that I had to, for the most part, accept irrational and self destructive behavior from my clients. However, during the past ten years, through the Collaborative Process, I have found that there are ways to help people find their better selves and, therefore, achieve better outcomes.
This has been partly due to the training that I have received from my Collaborative Colleagues to help clients in new ways. It is strengthened by the fact that the other attorney will work with my client’s spouse in the same manner; and by the fact that the clients can get the support of a child specialist, financial neutral and coach who will help them both bring their best selves to the table.
These poetic words are often ringing in my ears when I sit with a divorcing couple hoping that they might be able to summon their best selves during difficult times. Divorce can be so emotionally challenging that it is easy to excuse people who cannot bring their better angels to the process. It would be wrong to judge anyone who, when facing divorce, becomes so blinded by fear or anger that they seem unable to summon their better natures.
Yet, as a divorce attorney, someone who has a responsibility to help clients achieve better results, I cannot escape the fact that my job requires me to help them, (and if possible their spouse) find their better selves. I do know from nearly three decades of experience that they will make better decisions and get better outcomes, particularly for their children, if they can find their “better angels”.
Until ten years ago, I did not think it was even possible to help clients find their better selves. Hardened by 20 years of practicing divorce law, I had come to believe that I had to, for the most part, accept irrational and self destructive behavior from my clients. However, during the past ten years, through the Collaborative Process, I have found that there are ways to help people find their better selves and, therefore, achieve better outcomes.
This has been partly due to the training that I have received from my Collaborative Colleagues to help clients in new ways. It is strengthened by the fact that the other attorney will work with my client’s spouse in the same manner; and by the fact that the clients can get the support of a child specialist, financial neutral and coach who will help them both bring their best selves to the table. The most common mistake I have seen couples make during divorce might surprise you. It’s something that is done unknowingly. It’s done with good intentions. It’s something our culture has taught us to do.
So what is it? It’s choosing an attorney before choosing a process. When confronted with the reality of separation or divorce, your first step may be to ask friends, co-workers or family members for the names of good family law attorneys. Seeking a referral from a trusted acquaintance seems to make sense given the extremely personal nature of this legal event. It certainly is preferable to doing a Google search.
It’s important to realize, however, that, in addition to having varying degrees of competence, different attorneys use diverse methods of conflict resolution. A well-intentioned family member or friend may recommend a litigation attorney who is most comfortable in a courtroom. If you think you will need a judge’s help in reaching a fair resolution, you should look for a lawyer with this particular skill set. On the other hand, if you are more concerned about the impact your separation will have on your children, and prefer to maintain more privacy and control during the process, Collaborative practice may be a better process option for you and your family. If that’s the case, you and your spouse or partner should look for attorneys who specialize in the Collaborative process.
Separation and divorce are among life’s most challenging events. Choosing the right process first, then attorneys, is the safest way to proceed.
Many recovering alcoholics claim that the wisdom of The Serenity Prayer saved their life. I have found in my practice that the wisdom contained in this simple prayer can also serve as an essential guide for helping people through a difficult divorce.
The Serenity Prayer, which asks for the serenity to accept the things you cannot change; the power to change the things you can and the wisdom to know the difference, provides an important framework for dealing with almost all difficult situations.
Divorce almost always creates unfortunate realities that lie outside our control; the fact that you will not see your children on certain days; the reality that your family income will now be spread through two homes; and many other stubborn truths. These realities cannot be changed and, in the end, the ability to find acceptance and serenity is a worthy goal.
Divorce also requires people to summon courage to address daunting challenges; finding ways to co-parent when you are angry or scared; learning to manage new financial challenges; or trying to communicate effectively in painful situations. People who find this courage in divorce are much more likely to achieve their goals.
Finally, gaining wisdom about which areas need acceptance and which challenges require us to act courageously is often the ultimate challenge in a divorce. While some of this wisdom may come from divorce sources, some of the wisdom can be gathered by finding people you can trust to help you focus your time and energy on your most important goals.
One thing I like about the Collaborative Divorce Process is the focus on giving people the tools they need to truly help themselves. The first step in the process is generally to help clients identify their highest goals. As the process evolves divorcing couples are counseled to accept the things beyond their control so that they can focus their attention and limited resources on the things that truly matter. Clients who truly commit themselves to these principles can move from chaos to a new sense of order; sometimes even a deep sense of serenity. In any case, I have found that giving people the opportunity to gain wisdom about when to “let go” and when to work for change is the most important part of a divorce attorney’s job. 
“I hope we can be friends.” This is not an uncommon wish of one or both people when going through a divorce. Sometimes, however, there is a lot of pain and anguish going on for at least one of them and significant negative energy between the couple. “How did we get like this?” is another frequent question I hear in my practice. So how do we answer the question and can you become friends? It is helpful to think about how relationships develop in order to answer the question. I heard Isolina Ricci, speak to a group of mental health professionals and attorneys about her research around divorce and families a couple years ago. She introduced a very helpful concept that I often share with clients to help them understand whether and how they can be friends.
When we meet people, we start with a business relationship. We use more formal language, make few assumptions, make clear agreements, have minimal expectations and are not very attached to or invested in the relationship. Ricci notes that we are private, explicit, cool and reserved. As we get to know someone and move to friendship, we are less formal, begin to make assumptions and have expectations and are therefore more invested in the relationship. When the relationship becomes intimate, we become very informal with each other, act based on assumptions formed from past experiences with the individual, give the benefit of the doubt, and are very invested in the relationship. Ricci notes that we are vulnerable, implicit, hot and intense. However, when we reach the point of divorce, the relationship has moved from one of positive intimacy to negative intimacy. We move from the positive qualities of intimacy to the opposite of those qualities, (i.e., shared to abused confidences, loyalty and trust to disloyalty and distrust, positive assumptions to negative assumptions, benefit-of-doubt to suspicion and blame, for example). What we need to realize is that when we are in a place of negative intimacy, we cannot simply go back to friendship. In order to become friends, we need to move from negative intimacy back to the business relationship and then rebuild to friendship from there. Ricci calls this the detox-negative-intimacy, where we reset to a business-like relationship. In the Collaborative process, we actually help people learn how to step back to the business relationship by modeling respectful communication, not make assumptions but ask questions to clarify, strive to be trustworthy, make clear agreements, create healthy boundaries relating to times and means of communication, and sticking to facts rather than being emotionally reactive. And this is very hard work! But, by making the intentional effort to go back to a business relationship, we can start rebuilding trust by honoring agreements, getting rid of unproductive assumptions by asking clarifying questions, and redeveloping a give-and-take relationship. Over time, it is possible to create a business like friendly relationship.
Now that Minnesota has passed the Same-Sex Marriage Bill, there is much to figure out with regard to how laws will apply to same-sex couples and how laws will need to be amended to include same-sex couples. Now that same-sex couples can marry, they will also be subject to the laws for dissolving the marriage. The costs to the couples for going through the process might change because there will be a legal structure in place that now answers questions about division of assets and liabilities, as well as custody and parenting issue. As noted in the article in CNN Money about the cost of same-sex divorce, the cost for a “divorce” in states that have not recognized same-sex marriage has proven to be higher than states where same-sex marriage is recognized.
The article notes that, “For an out-of-court settlement in states where same-sex marriage isn’t recognized, a same-sex divorce typically costs around $20,000, versus $10,000 for an opposite-sex couple, said Randall Kessler, a partner at Kessler & Solomiany Family Law Attorneys in Atlanta.” When children are involved, it further states that, “Same-sex couples who negotiate property division on their own but bring the custody issue to court are usually looking at $40,000, compared to $20,000 for opposite-sex couples, Kessler said. And a long, drawn-out court battle over custody could lead costs to jump to $100,000 or more for a same-sex couple, twice what it costs for an opposite-sex couple.”
In my Collaborative practice, I have previously worked with same-sex couples dissolving their relationship with children. We did have to navigate the legal system with some creativity to address the issues of property division and parenting issues because they did not fit into the opposite-sex dissolution system. But the Collaborative process allowed them to be treated as a family system and reach a settlement that worked for everyone involved and it was less expensive than if it had been done through traditional legal system. Now that we have legalized same-sex marriage in Minnesota, we will have a system in place that will provide answers to the legal questions that arise in same-sex divorce. And the Collaborative Process will continue to be a responsive process to help manage costs, keep the decision making power within the family, and enable healthy transitions.