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455422869Recently I received a referral from Kristin, a client I represented in 2011 in her collaborative divorce. In thanking her for the referral, I took the opportunity to ask her how she was doing. With her permission, her response is reproduced below. At the time of her divorce, Kristin and her husband had two (2) children ages 10 and 12. Hi Tonda, Nice to hear from you. I will fill you in with some detail for examples of what can lay on the other side of divorce to help you give hope to your clients going through this painful process. Everyone is doing well here; the kids are doing really well splitting their time between our 2 households (4 miles apart). Tom and I have a much better relationship now than when we were getting divorced. We talk several times per week and text, usually daily, mostly regarding kids’ stuff like coordinating activities/homework and just general parenting issues. We also try to meet for coffee sometimes to discuss things more in depth like holidays and vacation planning and kids’ milestones. We see each other at their basketball games, tennis matches, orchestra concerts, etc, even holidays sometimes, and usually sit together with our new spouses. Tom and I both got re-married a couple of months ago and Tom and his wife are expecting a baby in March. I married a pharmacist that I met after the divorce and we got married in Yosemite in August of this year. The four of us get along well and the kids get along well with both our spouses so I have nothing but great things to say about the collaborative process. It really helped us to avoid a lot of un-pleasantries and keep our family together without staying married, which is really great. I hope all is well with you and your practice. I will continue to recommend people look into collaborative divorce as an option. It has been very helpful to us to use the divorce agreement as a structure, but we stay very flexible with rearranging schedules, holidays and vacations etc. We have actually never even had an argument since the divorce. It has helped us build a sense of cooperation and the collaborative process really reinforced putting the kids as the center point for all decisions going forward. One of the things that always stuck in my mind through the whole process was that Tom and I decided that even though we did not have a successful and healthy marriage, we would have a successful and healthy divorce and be successful and healthy parents. Best, Kristin
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494330099As a society, we are inclined to attach shorthand labels to everything from parenting (Tiger Mom, Soccer Mom, Helicopter Parents) to politics (Red States and Blue States, the War on Drugs).  It’s a function of our human brains that we are wired to categorize concepts in order to make sense of the world, but sometimes it feels like we’ve put this tendency on steroids.  Too often people assume a label is sufficient to explain complex social phenomena (Obamacare, the Arab Spring) or to fully define an individual or group of people (Boomers, Gen X’ers, Millenials).  We confuse sound bites with explanations. Think about the times you’ve seen two shorthand labels in a headline, maybe with a “vs.” in between, and believed there was no need to read further to understand the situation (Israeli vs. Palestinian conflict).  It is easy to become polarized instead of thoughtful, rigid instead of nuanced.

I recently attended the Fetzer Symposium, a multidisciplinary gathering of Collaborative professionals, mediators, judges and others whose professional lives have been devoted to creativity and healing.  Each of the fifty participants was there because they were attracted to the theme:  “Divorce:  What does Love have to do With It?”  A rich tapestry of conversations, ideas and initiatives was created. Professional labels just weren’t that important—-everyone there was committed to reducing conflict in divorce.  I thought of the tendency we have to label family law processes and sometimes pit them against each other (collaborative vs. cooperative vs. adversarial vs. mediated vs. litigated).  Not only does it waste precious energy and create unnecessary conflict to oppose someone based solely on the label attached to their work, such animosity can also prevent us from looking further, going past the label to find our common values in helping families through crisis.   There is plenty of room at the family law table.  I felt honored and hopeful to be among so many family law professionals of all stripes who have earned the right to add peacemaking to other adjectives describing their work, not as a shorthand label but as an invitation to go beyond the label.
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With so much at stake in a divorce, it is tempting to think about how to “win”.  Yet, the grim irony of divorce is that “winning” often leads to poor results.   I know that seems like a contradiction, but most divorce lawyers who, like me, have spoken with “winning” clients after a divorce, know that it is true.  Almost every “winning” client I have known during the past 30 years of divorce practice has expressed severe disappointment with their “winning” outcome.   The real “cost” of a litigated divorce (or even a divorce that settles on the courthouse steps) is so great financially, emotionally and, particularly for children, psychologically, that there truly are no winners. Does that mean that, when facing divorce, you should simply “give up” and let your spouse have whatever he or she wants?  Of course not.  Because there is so much that matters, you need to get the best possible outcome for you and your family.  So, how can you achieve that, without trying to “win” in the traditional sense?  By finding a smarter way to get your spouse “to yes”. Getting To Yes is the whole essence of divorce.  More than 95% of all divorces end in an agreement (and not a trial), so your divorce is likely to end in an agreement of some kind.  Therefore, the entire divorce process is one of seeking ways to get your spouse to say “yes” to the things that really matter. So, how do you get your spouse to eventually “say yes” to the things that are important to you?   It is tempting to think that you will get your spouse to “say yes” by hiring an aggressive lawyer to make bold arguments in your favor.  Tempting, maybe, but does that really work?  Is your spouse the kind of person who will respond to arguments by giving in?  Probably not.  On the other hand, if you are like the rest of the world, you will need to be much more strategic. The chances are quite good that the best way to get your spouse to say yes is to help them see that saying yes meets their interests.   This notion of ”interest based bargaining” is a way to truly “win” without having to make anyone lose.   This method of truly “winning” without creating losers is rapidly growing in popularity and is commonly used by Collaborative Divorce lawyers.  To find a Collaborative Divorce Lawyer in Minnesota who can explain this to you go to www.collabortivelaw.org.
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By Antoine Ducrot (1814–?) (Koller Auktionen) [Public domain], <a href=I have learned a few things over the years being a divorce and family law attorney and mediator. One thing I have observed is that men are often result-oriented in a divorce (and just generally in life, right?!). They frequently believe that they have a solution worked out. If only their spouse would listen to them, they could have been done with this whole process yesterday. I have also observed that while women are concerned about the terms of the final agreement, they also want to be sure that they go through a thoughtful process to get there. Part of this stems from women’s tendency to value relationships more than men. Another part of this is that men may not appreciate the extent that relationships matter in negotiations. If men understood how much relationships matter in negotiations, they would be more thoughtful in how they approach negotiations in divorce, because as a result they would frequently find that they would get better outcomes for themselves and their spouses. With more open communication comes more potential options that benefit both people.  A great way to approach a negotiation is to start by trying to listen and ask open ended questions in order to honestly figure out what the other person wants and why they want it, in order to better understand their perspective. Without this knowledge, many potential settlement options will go undiscovered, which results in lost opportunities for both people. Of course generalizations about men and women are not always fair or accurate, but what negotiation professionals understand is that—regardless of gender—if a person feels valued and respected, they are more likely to show the same value and respect in return.  The result of this mutual respect is that communication between the two people, in a divorce or other legal process, is more open and honest and more effective and efficient, which almost invariably leads to more potential options for settlement and better outcomes for both people.
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The Future is BrightPart 6: Selecting the right team for your family may be essential to the success of your Collaborative Divorce. Collaborative Divorce is often a team process, in which you work with mental health professionals and financial neutrals, as well as with attorneys, to help you achieve the best outcome for your family. One of the keys to your success is selecting a team that can best meet the unique needs of your family. Some divorcing couples and professionals prefer the standardized process in which the full team is assembled at the beginning of the case. In Minnesota, a full team generally consists of two attorneys, (one for each party); a child specialist (if there are minor children); a financial neutral and a divorce coach. The advantage of assembling a full team (often described as the “Cadillac” of the Collaborative Divorce Process) at the very beginning is that you know that you have all of the necessary professionals on board, so that all of your family needs can be immediately addressed. While you may be concerned about keeping your professional costs down, the full team process, if used efficiently, will not necessarily be more expensive. Working with the right professionals at the right time may actually reduce the conflict and, therefore, your overall costs. Perhaps more importantly, even if it does cost you a little more, getting a better outcome for your family may have incalculable benefits and may save you financial and emotional costs down the road. Other families and professionals prefer what I will call the “customized team” model. In this model you and your spouse work together to decide exactly which team members you need to help address the unique needs of your family. This option allows you to put your dollars where they are most needed.  For example, if you believe that you and your spouse need the most help in creating a parenting plan, you may wish to spend more of your money working with a child specialist. Similarly, if your difficulties lie primarily with finances or communication, you may wish to spend more time with a financial neutral or a divorce coach. To learn more about the role of each professional and to get assistance in selecting the right team of professionals for your family, go to www.collaborativelaw.org or www.ousky.com .
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The Future is BrightPart 3: Collaborative Divorce helps create better outcomes by requiring commitment at the beginning of the process.  A Collaborative Divorce is one in which the husband and the wife each retain a lawyer for settlement purposes only. One of the reasons that the process works well is that it causes both parties to make the necessary commitment early in the process. Almost all divorce cases, (approximately 95%) settle out of court. However, too often the settlement comes after the parties are near the point of financial and emotional exhaustion, sometimes creating flawed settlements and resentment. Many people reach a point of committing to a settlement only when they are nearly out of money, or they are told by their attorneys or the judge that moving forward will not be successful. These reluctant settlements, while better than a trial, come at too great of a price and can lead to a rocky future for the family. In a Collaborative Divorce, both parties and their attorneys sign a Participation Agreement at the beginning of the process that challenges clients to focus on commitment to settlement before they are financially and emotionally drained. Because both parties are asked to engage their attorneys for settlement purposes only, they are forced to think about their commitment to settlement at the very beginning of the case, and not “on the courthouse steps.” Both clients understand that each of them must make a commitment at the beginning of the process. Early commitment from each party leads to better settlements that are made before financial and emotional resources are fully exhausted. Early and deep client commitment is a big part of why people often get better outcomes in a Collaborative Divorce, since skilled Collaborative Professionals can help them commit, not only to settlement, but to other important matters, such as improving skills in the areas of parenting, communication or financial acumen. However, this is only a part of the equation. In order to be successful, committed clients need to be guided by professionals that are skilled in helping them achieve the best outcomes in this new environment. This information will be discussed in the upcoming blog. However, if you want information on this now, go to www.collaborativelaw.org or www.ousky.com. Read on to Part 4 by clicking here
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Trust The “Rule of Relationship” is one of the most powerful forces in our lives. Often we are not even aware of its existence. In a divorce, it can be more powerful than the rule of law. Here is how it works. Let’s assume you and your spouse are separated but you do not have any legal document regulating your separation or parenting. You have informally agreed to share weekends with the children and you pick the children up from your spouse’s home of Friday, promising to return them by 6:00 p.m. on Sunday. What if you decide not to return the children at that time? You will not have broken any law since there is no divorce or court order. Yet the consequences of your decision may be even more severe than any punishment a court could order as you have violated the “Rule of Relationship.” You may have damaged trust in a manner that could be very difficult to repair. Maintaining some level of trust is crucial in almost all situations. It is tempting to think that, in a divorce, there is no trust. Indeed, your spouse may even have been unfaithful causing you to believe that all trust is lost. But, in reality, there is almost always some degree of trust that exists in any relationship. If you literally had no trust at all, you would not ever allow your spouse to even be in the presence of your children, since you need to trust them to provide for their well being and safety, for at least some portion of their week. Despite the broken promises that can give rise to a divorce, most people are able to find a way to retain some basic level of trust, out of necessity and concern for their children. Trust is generally regulated by the “Rule of Relationship” and not by laws. Trust can only be created or lost through behavior. When it comes to regulating day to day behavior no court or government, no matter how well intended, can intervene on a daily basis to address these difficult situations. Parents are often left with their own laws, the Rule of Relationship,” to help them parent their children and regulate their lives. That is one of the reasons more and more parents are choosing out of court solutions, such as Collaborative Practice, to help them resolve their issues out of court. Working parenting issues out of court, where the laws of relationship and responsibility can help rebuild trust, can help your parenting plan go more smoothly and gives your children a true role model for developing trust in their lives.
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There is a very funny video making the rounds that shows a woman talking to her husband about this mysterious pain in the middle of her forehead.  Early in the video we are shown that the pain is being caused by a nail in her forehead. When the husband gently tries to point this out, the woman becomes upset with him for “refusing to listen” and for always “trying to solve the problem.” The video is really very funny. It is sure to make you laugh; and might even drive home a point. There are several insights to be drawn from this video. I like to focus on this very simple one:  Sometimes the causes of our seemingly complex problems are so plain that we need only to look in the mirror. Things that have become complex in our minds are quite obvious to those around us and, if we step back, could become obvious to us as well. I work with divorcing couples every day who struggle to find their way through difficult issues. While divorce can, of course, present complex issues the bigger challenge is that the emotions surrounding the divorce can be so intense that even simple solutions can seem elusive. During these painful experiences, our minds can so easily fixate on what other people could do to make things better. Most of my clients are quite skilled at identifying the ways that their spouse could improve their behavior. While their observations may be accurate (at least in part), changing a spouse’s behavior is often beyond our control. Yet, our power to change other things; our own behavior, our attitude, or our ability to accept what is happening in our lives, can often be quite plain to see.  Sometimes it is as even as obvious as a nail in our forehead.
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Besides being a family law attorney, I am a divorced mother of a teenager. My daughter was 9 when her dad and I separated. Parenting is not for the faint of heart, even with a great kid. I cherish the fact that I have a strong co-parenting relationship with my daughter’s father as we celebrate the successes and face the challenges of launching a young woman into independence. So it bothers me when I see divorced women torpedoing the co-parenting relationship. I don’t seem to attract these kind of women as my clients, but I meet them socially or hear the stories from others (None of the moms below were my clients). The following is my advice to those women, because I have lived it.
1.  Stop calling yourself a “single mother.”   Unless your child’s father died or has no involvement in your child’s life, your child still has a dad. Calling yourself a single mom marginalizes dad. I know of a mom who sent dad a copy of the registration form for summer camp, since dad was paying half the cost of extra-curricular activities.  Mom put her name and contact information on the form and drew a line through the section for the other parent. Even if you have sole custody, respect the fact that your child has two parents. 2.  Communicate, communicate, communicate. Dads need to know what is going on with kids when they are at mom’s home, and vice versa. I know of a dad who reached out to mom to discuss how to handle a power struggle.  Mom responded by saying, “That’s between you and [daughter]. You have to figure it out on your own.” I wonder if mom would have said the same thing to a teacher asking for input. This isn’t a test where comparing answers is cheating. This is your kid’s life. And don’t forget there will likely be a time in the future where you are struggling to find the answer to a parenting dilemma. It is a relief and a blessing to have a co-parent when that happens. 3.  Communicate doesn’t mean micro-manage. The flip side is the mom who is hyper-vigilant and second-guesses every decision, monitoring every meal and activity. I know a mom who was critical because dad ate out at restaurants too much. Give yourself permission to let go of the small stuff.
When my daughter was younger, she was on a soccer team but was tired of going to practices. She was at my house and was supposed to be picked up in the carpool.  What I didn’t realize is that she texted her friend and said she wasn’t going to practice, and then she left the house and re-entered through the egress window in the basement. I found her hiding out in the basement. It was a relief to be able to call her dad and have a unified approach to dealing with honesty, and to also re-assess soccer as an activity for her. Unless there are domestic violence issues, do whatever you can to nurture a parent partnership. Let go of competition with dad.  Let go of anger towards dad. Let go of perfection. Trust me, life is so much better, for your kids and for you, when you have a co-parent.
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TissuesIn a collaborative divorce process – there are usually tissues on the table. When a client first comes into an attorney’s office to tell their story or learn about divorce, it can be emotional and scary. Some people cry. Some of those tears come from sadness, fear, or worry about the future. Some people feel guilt or are mourning the loss of a relationship. Whatever the emotions are, in collaborative divorce, it is alright to express them. Indeed, expression of emotion can be key to the process – help clients process the transition and be more honest in the negotiations. Sometimes, clients cry quietly and silently in the process. The team may keep the process moving or take time to acknowledge the emotion. Clients can always take a break or ask for a moment alone. Silence may be a useful way to acknowledge the emotion. At other times, emotions may run hot and anger can result in intensified behavior. The team may choose to discuss the emotions or use a coach (mental health professional) to help keep emotions productive in the meetings. Clients may cry during joint meetings or when meeting with other professionals. Some clients cry while a lot others hardly cry. In a recent joint meeting, two clients were sharing each of their desires to spend Christmas morning with the children. The attorneys asked each client to express their personal reasons in the meeting. In front of the attorneys and the other spouse, they each shared their thoughts on this subject. Wife cried during her turn – the emotions were pure and real. After a moment of silence, Husband’s attorney acknowledged her emotion, saying “I know that was hard and I thank you for sharing your thoughts.” Husband expressed empathy as well. When he spoke, he acknowledged her by saying “It’s hard for me to share my thoughts now because I know how important this is to you.” Emotion is real and the collaborative process allows for its expression. Indeed, there will always be tissues on the table.