My previous posts have covered: Making the decision to get divorced and searching out the various processes on how to get divorced, including collaborative divorce. From my way of thinking, which is not necessarily how anyone else might think, the next step for me was to talk with my spouse. So filled with my newfound knowledge about collaborative divorce this is what I proceeded to do.
While I was hopeful we could agree to use the collaborative process, I also realized that getting both of us to agree on this would be one of my biggest challenges. I think we both felt certain about divorce, now it was how to accomplish it. I spoke with her one evening (we were still living in the same house) and discussed what I had learned about collaborative divorce.
I had a couple of brochures (not attorney specific material) provided by the attorney I had decided to work with, along with a list of about 10-15 collaborative attorneys and their contact information. I talked about the benefits for both of us in using this process (see my last post). I encouraged her to look over the material and to speak with another collaborative attorney or several so she could make an informed choice. I was still hopeful after this discussion that she would agree to a collaborative divorce. In the back of my mind, I had some doubts simply because during our 30 some years of marriage, there were many times when we would not agree on what I thought were issues of significant importance.
A few days later my former spouse told me she had contacted another attorney, not one of the several listed as collaborative attorneys. She told me that this attorney recommended against a collaborative divorce, stating it was not necessarily less expensive or less stressful. It wasn’t until later when I found out she had talked to an attorney who was well known in family law circles as someone who vigorously opposed collaborative divorce due to the fact that if issues could not be settled, both of us would have to find different attorneys to represent us going forward. I wrote about this in a my previous post about collaborative divorce. What I liked about this feature was it put everyone, including attorneys, on the same side of the fence sharing the goal of reaching agreements without court.
I ask you to think about this for a minute. The attorney I talked to did both traditional divorce litigation and collaborative divorce work. She could have recommended either. My attorney recommended collaborative divorce after listening to my desired goals. The attorney my spouse talked with only did traditional litigation divorce, and so what do you think she was going to recommend. Did that attorney talk with my spouse about my spouse’s goals? Whose interests were being placed first? While the answer to this question seems clear to me, Go to my website and under “about us” click on the Collaborative Divorce Knowledge Kit. Especially look at page 2, outlining the differences between collaborative and litigation processes. I’ll let you decide for yourself which process places your interests first.
It wasn’t until later, well into the divorce process, I found out this attorney had a reputation for contentious litigation, driving up costs for legal fees, and stretching out the time it took to get divorced. My spouse ended up hiring this attorney. It was my worst nightmare. Of all the attorney’s she could have hired she chose this one. Oddly, this should not have come as a surprise to me, and looking back now, maybe it didn’t. But it sure was a huge disappointment, to say the least.
Hindsight being 20/20, if I were to go back and do something different, it would be to have asked my spouse to attend a meeting with a collaboratively trained coach. In most cases this would be a mental health professional, (not a therapist) and me together to further explore the benefits of a collaborative divorce vs. a traditional divorce and our own individual and joint goals for this process. While I have doubts my spouse would have attended such a meeting, since she had previously declined to participate in marital counseling, I wish I would have known at the time to ask for such a meeting. My advice to any divorcing couple is to take advantage of utilizing a collaborative coach even when exploring divorce options. I wish I had. But always remember it takes two to effectively collaborate.
In my next post of “Getting Unmarried” before I get into my actual divorce process experience, I’ll talk a little more about choosing an attorney.
Professionals who work with divorcing couples know that it is rare for couples to be at the same place in terms of deciding whether the marriage needs to end. In almost every case, there is one spouse who has taken more time to think about the life of the marriage and how it may have become damaging to both parents and children.
What are some tips for those who have given the subject a great deal of thought, and think the future could be brighter in two homes?
- Make sure your spouse knows that you have heard their own complaints. On a consistent basis, when they start to complain about your behavior, let them know you understand they are unhappy also, and that you want them to be happy as much as you want to be happy. Life is short, and going around in circles over what can’t be fixed is wasted time. It’s important to acknowledge with respect that you may not be able to meet each other’s needs, even if you were able to do so at one time.
- Do your research. Find ways to approach a potential divorce as positive as possible, and will not end in your family’s ruin. Collaborative Divorce is a professional team approach to solving family differences which focuses on creating the smartest solution possible – with an intentional financial plan, and parenting plan. Find a way to contain the amount of time you need to make decisions, to contain the cost and get the smartest solution possible for your family. Share the positive aspects of your research with your spouse.
- Find a safe place to talk. This may NOT be your kitchen table, or the local coffee shop. It may be in the office of a family specialist with the knowledge and skill to create a therapeutic setting for tough conversations. Talk with respected friends and colleagues who may know a Licensed Marriage and Family Therapist (LMFT), Licensed Social Worker (LICSW), Psychologist (LP) or other mental health professional who understands the dynamics of family systems and has a positive, proven approach.
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.
The first post of “Getting Unmarried,” I talk about making the decision to get divorced. The first installment of “How to get divorced” focused on my thought process considering traditional litigation, mediation and briefly mentioning the do-it-yourself process. In this post, I share with you what I learned about collaborative divorce, a term I had never heard of before.
One day I received a letter from a family law attorney who was a member of the local chamber of commerce, where I also was a member. She was marketing her services as a family law attorney and happened to be in the same area of the Minneapolis and St. Paul metro area. I looked at her website where I first heard of the term collaborative divorce. I was intrigued. This attorney, along with a life coach, was offering free workshops on divorce. I signed up to attend the next available workshop. In the meantime, I wanted to learn as much as I could about this new term (new to me), collaborative divorce.
Collaborative divorce, I learned, was—in its most simple definition—divorce without court. As I continued to learn more about collaborative divorce, it was a great deal more than just divorce without court. Each spouse has their own attorney. Other professionals, such as a financial specialist and a child specialist, act as neutrals and are employed as needed to assist the couple in reaching agreements about finances and co-parenting their children. Coaching services are available as needed to help the couple with communication challenges during the process, in order to promote better decision making. A coach also helps with developing a relationship plan the couple uses both during the process and post-divorce.
What I really liked about collaborative divorce was the concept of both spouses and each of their attorneys signing what is called a Participation Agreement, committing that court or the threat of court is not an option to be considered in a collaborative divorce. While everyone has the right to court processes even when we would sign an agreement stating otherwise, it was to be understood that if the spouses later elected to discontinue the collaborative divorce and go to court, the two attorneys would have to discontinue representing them, requiring both spouses to find new attorneys to represent them in court. The attorneys who represented the spouses in the collaborative process would attempt to utilize the most economical and orderly means available to transfer each spouse’s information to the new attorneys.
I learned the basic tenants of a collaborative divorce beyond the pledge not to go to court include:
- Both spouses and attorneys would participate in good faith to reach agreements that considered the interests, concerns and needs of both spouses and their children, if any.
- Each spouse would be required to fully disclose to each other all information that would be relevant to their circumstances. This would include all financial information being disclosed to a financial neutral.
- Everyone in a collaborative divorce is to mutually respect each other and communicate in a manner that conveys respect. Communicating with respect greatly assists in the effort to reach agreements everyone can live with.
- Emphasizes the needs of children. This is critical, in my opinion, for divorcing couples with children.
- The couple would retain control over the outcomes decided versus having someone else, knowing little about the family, making decisions for them.
The divorce process can be so difficult it is hard to imagine anything positive coming from it. However, in Collaborative Team Practice your family is surrounded by professionals who understand the complications of relationships, the emotional distress of divorce and how to navigate this process with open communication, balance and respect. When a family takes advantage of the professionals’ knowledge, skills and guidance the divorce process turns into an opportunity to communicate and work together in new ways.
Families generally come to divorce because they have been immersed in negative patterns that are not working. Spouses or partners don’t feel heard, respected, valued, appreciated, free to be themselves and/or balanced. One or both in the relationship have worked hard to try to turn it around, to do better, to make it work, but the established patterns are formidable.
In the actual divorce process itself, there are brand new options.
You have made the difficult decision to separate or dissolve the marriage so the pressure is off to “fix the relationship.” Now the focus is on accepting the end of the partnership or marriage and re-establishing and strengthening your separate selves. Your new job is to form a co-parenting relationship. This is very different from the partner or spousal relationship. We seek to have our own needs met within a spousal relationship which is the part of the relationship that is most likely to become broken. In a co-parenting relationship you are not expecting to have your own needs met, instead the goal is to meet the needs of your children.
Doing what is best for your children is something that both of you want.
The Collaborative Professionals guide you through the divorce process of deciding how to divide assets and debts and establish separate living arrangements and most importantly to develop a parenting plan. This is an opportunity, with assistance, to talk to each other differently and to rediscover and build upon the strengths you each have to work together for your children.
Disagreements about finances, spending and debt are leading causes of divorce. How to pay for or divide the marital debt has been a major issue for divorcing couples during the recent recession.
Here are seven tips on how to deal with debt in a divorce:
1. IDENTIFY YOUR DEBTS. Review your credit report which you can obtain for free once per year from each of the major credit reporting agencies: Experian, Transunion and Equifax. You need to make sure you know what debts are in your name and your spouse’s name.
2. ARE THE DEBTS JOINT OR INDIVIDUAL. You and your spouse’s credit reports will tell you which debts are joint with your spouse and which ones are yours alone or spouse’s alone.
3. PAY OFF JOINT DEBTS. As much as possible, pay off debts which are joint. If a debt continues as a joint debt after the divorce, you can each be pursued by the creditor even if your divorce agreement makes one of you responsible for payment of the joint debt.
4. CONSULT WITH A DEBT COUNSELING SERVICE. If you and your spouse are unable to make the monthly payments on your debt, a reputable debt counseling service may be able to help you negotiate a payment plan with your creditors. Some recommended debt counseling services are The Village and Family Means.
5. BANKRUPTCY OPTION. If you have substantial debt and not many assets, consulting with a bankruptcy attorney may give you another option for dealing with debt.
6. PLAN TO END JOINT DEBT LIABILITY. If you can’t pay off all your joint debts, develop a plan to end your joint liability including credit cards, mortgage, lines of credit and other debt.
7. ESTABLISH AND MAINTAIN YOUR CREDIT. If one spouse has no individual credit card, explore ways to allocate resources to that spouse to obtain an individual credit card. If one spouse is planning to buy a new home and assume a new mortgage, make sure that actions like closing credit card accounts do not result in a lower credit score for that spouse which could jeopardize the purchase of a new home.
In a collaborative divorce, couples work with neutral financial specialists like Dave Jamison who has helped couples who are refinancing mortgages or obtaining new mortgages during the divorce process.Working with a neutral financial specialist, both spouse’s interests are addressed. This avoids the problems caused when one spouse makes a unilateral decision or action which adversely affects one or both of their credit scores or abilities to secure financing in the future.
Even if debt was a problem during your marriage, there are ways to “part” your debt in divorce. In this upcoming series of posts I will outline what I think were the most important decisions I had to make when in 2008 I began the journey to end my thirty-year marriage. It is my hope that readers of these posts will be able to reflect on their own circumstances and either find guidance, reassurance, or be prompted to reflect further on their own situation and realize they are not alone in this journey.
In this first post, I will write about what to me was not only the most important decision but also the most difficult. Decision point number one was to come to the realization that my thirty year marriage needed to come to an end and that I was the one to make it happen. It took me an incredibly long time to reach this point. I now realize that maybe our divorce or “getting unmarried,” as I will refer to it from here on, should have happened twenty years earlier. As I reflect back over the years, I believe the process of my becoming unmarried did begin twenty years earlier and not in 2008 when I took the initial steps to end the marriage. I suspect many, although not all, marriages begin to end much earlier than the time when one spouse takes that first step forward.
You see, I had actually started thinking of getting unmarried twenty years earlier. At one point I went so far as to talk with a family law attorney, engaged that attorney, and later decided not to proceed. Four years prior to my legally beginning the end of my marriage, I began going to counseling on my own. I pleaded with my spouse to come with me but to no avail. I continued asking, but after her repeated unwillingness I stopped asking and continued on my own. I had spent two years talking off and on with the pastor of my church about our marriage difficulties and that I was seriously thinking of ending the marriage. I felt like there was nothing more I could do.
I am sharing all this with you because for me, and I am sure for many others, I had to know that to move forward with “getting unmarried” I needed to answer the question, did I do all that I could, with an unequivocal yes. I’m sure if you asked my former spouse today, she would say I could have done more. In my mind I really felt as though I did all that I could do and that is what mattered to me. Holding this feeling was and is comforting to me as I continue to move forward in this journey called life. How would you answer, have I done all that I could?
If you are considering “getting unmarried” or maybe you have already made that decision I invite you to travel along with me on this journey, as this transition in life continues. Watch for the next post of “Getting Unmarried” Part 2; How to get unmarried. In Part II I will talk about decision point number two, deciding for yourself how you want to get unmarried. How are you going to do it?
Read Getting Unmarried Part II: How To Get Divorced here.
If you are going through or thinking about starting a Collaborative Divorce, you might wonder why you need a Child Specialist. After all, if you and your spouse agree on custody and parenting time (previously called “visitation”), why spend money on a Child Specialist? As a Collaborative Attorney and Mediator, I enjoy helping parents with the parenting piece; however, I am not an expert in child development, and I don’t meet with the children. Furthermore, I don’t want parents to come up with just any old plan – my wish for them is to succeed in their post-divorce co-parenting relationship and raise happy, healthy kids.
A Child Specialist helps you and your spouse create not only the day-to-day and holiday/vacation schedule, but helps you identify your goals and values as parents, so you can create a custom-made plan specifically addressing the unique needs of your children. As parents in a fast-paced world, we need to determine the appropriate age for our kids to have a cell phone. We need to think about how much screen time per day is healthy. Is texting at the dinner table OK (not!)? These are issues parents need to deal with at some point, but parents residing separately really need to be on the same page. Child Specialists can assist with these decisions. Clients often tell me how glad they are they hired a Child Specialist, because they are more in-tune with their children, and are therefore, better parents.
Child Specialists are valuable members of the Collaborative Team and are wonderful resources for parents. Believe me, I know this personally because I consult with them when I have questions about my own kiddo! Although you know your children the best (their funny little quirks, favorite color, best friend’s name, and so forth) Child Specialists know what makes children tick from a developmental perspective; thus, they are treasure troves of information. Why not tap into that? Think of it this way: would you rather spend the money on an expert who can guide you now to the land of great co-parenting or spend two, maybe three times or more on therapy for your kids later, because you and your spouse did the bare minimum to just get through the divorce (understandable – it’s a painful ordeal). Consistency in parenting, as well as respecting and understanding your different parenting styles and personalities, can be the difference between a “so-so” parenting plan and a “so-good” parenting plan. It’s easy to spend time and money on gadgets, toys, clothes, and activities for kids, so consider taking the time and money to invest in utilizing a Child Specialist to craft a parenting plan that will help you and your spouse co-parent effectively post-divorce. I bet you’ll be glad you did!