In collaborative dissolution cases, this is a common objection when meeting for the first time with clients. Another variation is, “I can be a terrific co-parent, just not with my spouse.” I am often stymied by this reaction. Of course, I know nothing about the other spouse except the views of my potential client. My initial response is to acquiesce and to reject the collaborative approach. But depending on the circumstances, both spouses bear the risk of escalating litigation. A better approach is to persuade the spouse in my office of the advantages of the collaborative model, especially if the couple has trouble communicating. They may have misperceived the resistance of the other spouse. I consider the context. The couple has typically been working toward a break-up for a long time. They have often taken strong positions based upon strained communications. I encourage the spouse to review the open communications features described in the Participation Agreement. For example, in four-way meetings with clients and attorneys, both spouses can be safely heard without the risk that their words could later be regretted. In addition, the spouses themselves can set the pace of the process rather than be bound by judicial deadlines. This may be persuasive in cases where one spouse is more eager to end the marriage. Resolution is often facilitated when some issues are allowed to “percolate.” Another advantage of the collaborative process is cost savings. Initially, this seemed to me to be counter-intuitive given the potential number of team members and meetings. But when the alternative is communicating exclusively through the attorneys, these meetings are a bargain. If a client in my office expresses a favorable view toward the collaborative process, another approach is to communicate directly in writing with the “stubborn” spouse. The correspondence always contains the caveat that I represent only their spouse and I recommend they obtain their own attorney. I include a general discussion recommending the collaborative model and provide IACP literature and brochures. The letter accurately states that the vast majority of all divorces are resolved through settlement. A major advantage with the collaborative process is the emphasis on preserving future relationships (especially where minor children are involved). In discussing the problem of the stubborn spouse, one of my colleagues gave me permission to share the following experience. He consulted with a woman who was knowledgeable and favorably inclined towards a collaborative divorce. But she was adamant that her husband was too stubborn and controlling to ever agree to anything she suggested. Nevertheless, she agreed that he could send her husband a letter recommending the collaborative process. The letter was down-to-earth and explained the practical benefits of enhanced communications and interest-based negotiations. To his client’s surprise, her husband agreed to give it a try and requested a referral to another collaborative lawyer. As it turned out, the collaborative process proved successful. The take-away for both collaborative professionals and clients is to continue exploring this option even when confronted with resistance from a stubborn spouse. The process of reaching agreement is facilitated when couples can meet on their own terms. Also, clients are often attracted to the collegial format. If a resistant spouse is on the fence, share with them Father Frances Fleming’s sage advice, “Love your enemies. It drives them nuts.” About the Author Gregory R. Solum, Attorney at Law My goal is to guide my clients to their destination in a manner that is transparent, fluid and valuable. General Practice of Civil, Family, Probate and Appellate Law since 1980/ Mediator (including Family Court) since 1995/ Collaborative Team Divorce since 2000/ University of Minnesota Law School Instructor 1991-2009. www.solumlaw.com
It may be tempting to save money in a divorce by drafting a decree with your spouse, or by completing a form decree. This is especially true if it appears that you and your spouse are in accord on all issues. But be warned: unintended consequences can arise months or years after your decree has been filed and entered by the Court. Once your decree has been filed by the Court and entered by Court Administration, your decree becomes the legal guide for everything related to your divorce: custody and parenting time, support, property and debt division. On the surface, these issues can seem simple and many couples attempt drafting their own dissolution paperwork without counsel in an effort to save on the investment of lawyers and other professionals. While it is true that parties are often in the best position to make decisions about what their families need, attorneys are uniquely trained (and perhaps some are even naturally suited) to imagining something their clients may not be inclined to consider: the worst-case scenario. The worst-case scenario is and should be an ever-present consideration for attorneys as they counsel their clients regarding important decisions that will have long-term impacts on parenting and financial issues. An attorney may be a glass-is-half-full type of person, but he or she has been trained to imagine what could go wrong five years out from a divorce or custody determination. The worst-case scenario may not be an enjoyable rumination, but it is critically important in drafting strong contracts. Take Couple A, for example. Couple A was married for 12 years. They have an eight-year-old child and they own a home, which they purchased together during the marriage. Couple A decide to divorce in November and to sell the home in the spring when the housing market is stronger. They agree to share the closing costs and to equally divide the sale proceeds. They also decide that they will have equal parenting time, but they do not create a specific parenting time schedule. Couple A feels pretty good about the progress they are making, and they should feel great – many couples are not able to have fruitful conversations about parenting and property issues in the context of a separation. Couple A signs and files their divorce decree, which awards the home to Wife, pending the sale of the house. Husband has purchased a townhome a few miles away. Couple A is glad to have the divorce behind them so they can focus on their child and on moving forward with life. What could go wrong? Let’s check back in with Couple A one year after their decree is entered. It is late fall and the marital home is still unsold. At the time the divorce was finalized, the realtor recommended repairs that required time and money and the parties were not able to agree on a listing price. Some offers were made, but the parties felt that the property should sell for more. Wife has been paying the mortgage for the past year, and the parties have now just received a solid offer. Wife wants to be credited for reducing the mortgage principal during the year she made mortgage payments and is asking for additional sale proceeds. Husband does not agree – he has done some of the repair work on the home and has paid for lawn maintenance. The decree is silent on principal reduction, and he believes the net equity should be divided equally, as worded in the decree. In addition, Wife has put in an offer on a home twenty miles away from Husband’s new home. Wife wants the now 9-year-old to attend school near her new home, in a different school district. Even though the parties agreed on equal parenting time, Husband has been picking up overtime at work to help offset some of his expenses, so Wife has had significantly more overnight parenting time over the course of the last year. Wife has hired a lawyer and is threatening to take Husband to court to address school choice, parenting time, and the division of equity from the sale of the marital home. If Couple A had attorneys, even to simply review their draft decree, they could have included some provisions to address these foreseeable events. As a family law attorney, I have encountered many “Couple As,” who, with the best intentions, endeavored to divorce without counsel because they believed it would save them time and money. However, in many instances, these couples overlook important details and pitfalls that a family law attorney will mitigate by including provisions that anticipate change and communication breakdowns. In the end, these couples have unnecessarily spent significant amounts of money to resolve issues that could have been avoided by addressing them properly at the time of divorce. If Couple A had engaged in the Collaborative Divorce process and retained collaborative attorneys committed to working only out of court, they would have had conversations focused on problem solving the issues that they later encountered up front. While many divorcing couples can and should make efforts to reach agreements on their own, attorneys offer unique perspective and experience when counseling clients on important agreements. If you are considering a divorce or have questions about whether the Collaborative Divorce process is right for you (there are many wonderful blog posts on the CLI site explaining why it probably is), contact CLI or browse through the online listing of collaborative attorneys (Find a professional) – most of us offer free initial consultations and love the collaborative work we do. About the Author: Rebecca Randen is a family law practitioner and partner at the firm Randen, Chakirov & Grotkin LLC. She practices collaborative and traditional family law in the metro and greater Minnesota. She is a lifelong Beatles fan. www.rcglawoffice.com
Frustrated with the world of politics today? Unless you are reading this from your hospital bed, having just awakened from a long coma, I am going to guess the answer is yes. Whether you are a Democrat or a Republican, it’s likely that you have about had it with all of the acrimony and with the arguments being made by “the other side”. Probably the one thing we can all agree on is that everyone on “the other side” is quite disagreeable, both in their opinions and their manner of expressing their views. If you have bravely ventured out into the world of political discourse in an attempt to influence “the other side”, whether at a gathering of friends or family, or on some social media site, there is a pretty good chance you came away even more frustrated after the experience. Any naïve thoughts you may have had about the other person changing their mind likely hit a brick wall that, by the end of the exchange, had become, if anything, even stronger in its resistance. If “the other side” argued back at you there is a pretty good chance that your brick wall got fortified as well. You and “the other side” achieved the very opposite of what you both wanted to achieve, and you both were left in a state of frustration. As a divorce lawyer, I am struck by how similar all of this is to how most couples behave when they are in conflict. I am hoping there is something about watching these political arguments that may create a true learning opportunity for these couples. The reality that I just described; the dynamic that most arguments lead to chaos, frustration, and a deepening of divisions is an important insight. And what better time to learn it than when you are going through a divorce. Trust me, as someone who has “been through” numerous divorces, the maddening events that are playing out on the political stage, bear an amazing resemblance to conversations I have regularly observed in my office during the past three decades. Two people, seized with emotions, bent on getting another person to agree with them, stay awake at night thinking of great arguments to persuade their spouse that they are right, or worse, thinking of “good” attorneys who can do that for them. If you are in the middle of it (either politics or divorce), you are likely so caught up in your frustration with “the other side” that you have little insight about what you are doing that is actually making your life worse. However, if you are able to stand back, if only for a moment, both with the political arena and arguments with divorcing couple, it is fairly easy to see that all we are doing is pouring gas on a raging fire. Once you come to that realization, you may find yourself wondering what the alternative might be. Our inner voice immediately retorts that “we can’t just give in”, thinking, from the standpoint of our ego, that fight or flight are the only true options. Is there a third option? There is. It has different names, but the most common phrase that negotiators use is “interest-based bargaining.” I will skip that jargon and simply call this alternative “dialogue” for the moment. Dialogue, in the sense I am using it, is one of those ideas that is simple but not easy. It starts with the idea of letting go of arguments and changing minds and focusing instead on seeking common ground or at least a basis for common understanding. What I have observed, at least with divorcing couples, is that if we can reframe the discussion away from “arguments to change minds” and on to dialogues aimed at achieving common understanding, it is possible to achieve common goals. This type of dialogue is a central tenet of something called Collaborative Divorce. To learn more about Collaborative Divorce, go to www.collaborativelaw.org. In the meantime, watch what is happening on the political stage and see if there might be some valuable life lessons that will help us become a better nation, and better families. About the Author Ron Ousky, JD, is a Collaborative Attorney and mediator who has dedicated his practice to making sure that families facing conflict understand their options. He believes that families facing divorce are in a unique situation to make a better life for their families and he is dedicated to helping them find the resources to build a better future. For more information about his practice go to www.ousky.com
Divorce is never an easy topic, nor should it be an easy answer – but what about during a pandemic? Is disrupting your family’s life to separate into two households the right thing to do when a pandemic is taking place? There is never going to be a “right” time to divorce. Once a couple figures out either on their own or through counseling that their problems cannot be solved, a constructive divorce is often the next step. Courts are open and those cases that can be resolved without any court hearings are moving more rapidly than ever through the now virtual court system. The collaborative divorce model has been around for awhile, but using it now during the pandemic can make your divorce more efficient, while still bringing in the professionals as needed for your particular situation, including financial planners, mortgage brokers, child specialists, divorce coaches or mediators. Collaborative may be the right process for you if you want the following:
- To stay out of court,
- To work things out on your own,
- To make a plan for the future for both parties looking at your family’s interests and needs,
- To maintain a private, safe environment to exchange ideas and options,
- To put your family first.
Wouldn’t it be great if families could complete their divorce in a conference room rather than a courtroom? That’s the thinking behind the Collaborative Process and what makes the Collaborative Law Institute of Minnesota so helpful to divorce professionals and divorcing families. Because of TV shows and just our general culture of “fighting” for our rights, we often think that we have to spend endless amounts of money and fight in court to get a divorce, but that simply isn’t true. In the Collaborative Process, we help families reach agreements without ever setting foot in a courtroom. The Collaborative Law Institute of Minnesota (CLI) trains professionals in areas of law, finances, relationships and mental health to work with families outside of court to reach durable and understandable divorce agreements that work for their families. Law school is focused on training attorneys for inside the courtroom. That’s why we need CLI to train attorneys and other divorce professionals to help clients outside the courtroom. This is a major paradigm shift for the legal profession, but it shouldn’t be so surprising that this is the help and advice that families need and want. Because, let’s be honest, who really wants to go to court?
April is Autism Awareness Month, the two month anniversary of the Marjory Stoneman Douglas High School shooting, and the 19th anniversary of Columbine. Why talk about ASD and school shootings in the same sentence? And why a divorce blog? I will get to that. But as a lawyer-mom, these two issues are at the forefront of my mind, and probably the minds of many parents and educators these days. We should rest assured that our kids would know what to do during a lock-down because they have spontaneous drills throughout the year, right? Ugh…what am I saying? The fact that kids NEED lockdown drills is downright outrageous! Nonetheless, I wondered what the younger kids are told and what happens during these drills. Well, lucky me, when I recently volunteered in my son’s elementary school classroom, the school had a lock down drill. And one word sums up the experience: chilling. Lockdown drills are very different from the fire and tornado drills we had as kids. I’m sure everyone remembers the fire drills – exit the classroom quickly and get away from the building. Or the tornado drills – go out to the hallways, away from the doors and windows, and cover your head with your hands. Up until about 1999, THOSE were the drills Minnesotan kids experienced. In fact, most the time, much to our teacher’s chagrin, we were laughing and joking around. A lock down drill, however, has a very different vibe. The kids must be EXTREMELY quiet. They huddle into a specific area and are instructed to remain eerily still. This had been a bustling class (and school) just moments before, but now it was so quiet, you could hear a pin drop. This was a class of 30 second graders, so I was stunned at the deafening silence. Just when I thought it was over (it seemed like forever, but was probably two minutes) someone rattled the door handle. Forcefully. Not a peep from the kids, but I jumped. Luckily, they didn’t see me or they might have erupted into giggles. We had to continue to remain quiet and motionless. Interestingly, I don’t remember what happened next; that is, I don’t recall if there was a bell or another signal indicating the drill was over (I think I was sort of in shock). The kids went about their business, working on their projects, like it was no big deal. Only it was a big deal. At least it was to me and the other adults in the room. I just looked at the staff, wide-eyed, and shook my head. School lock downs are now a reality for school-aged children. It makes my heart ache. I asked my son that evening why they have lockdowns and he nonchalantly said it was in case anyone wants to break into the school. That was it. Simple enough. But as we grown-ups know, there is nothing simple about this. My son is a “mover and a crasher,” so I was relieved he made it through the drill. But I thought about the other high-needs/special-needs kids in his school. For any child who has physical needs or doesn’t cognitively understand the drill, simply can’t be quiet and remain calm, needs to move, or overreacts when accidentally bumped or touched by a classmate, what would that child do in this drill? Or, God forbid, in a REAL situation? With more and more kids being diagnosed with ASD, what protocols are in place for them? Is there a special section in their IEP about drills? There ought to be. This made me think about special-needs kids whose parents are going through a divorce. The teachers are aware of kids’ needs (or should be). So, too, should the divorce team. A child’s symptoms often reemerge or worsen when they are stressed, which could happen during parental conflict and/or separation. Child specialists can work with the parents and the child’s pediatrician and/or therapist to help create a parenting plan that is in the child’s best interests. Like it or not, otherwise fit and loving parents need to work together for there children’s sake. Fortunately, the Collaborative process can help parents really focus on their kids, by putting them in the center, rather than the middle, of the divorce process. Every family situation is unique. Every family and every child deserve a creative plan to help move them forward, restructure, and get to a new “normal.” Drill and lockdown protocols included.
With the holidays upon us, most of us are getting ready for gatherings with family and friends and figuring out who is hosting which holiday. Many families have traditions that may go back generations. As parents, we may choose to keep those traditions or create new ones. One of my family traditions was my grandmother’s cranberry marshmallow salad. I have her recipe, helped her make it when I was a little girl, but I just can’t recreate it on my own. No matter how much sugar I add, it’s too tart; sadly, I might just need to let this tradition go. (Unlike the shredded carrot and jello salad many of us grew up with, this cranberry salad really was fabulous!) I discovered and revised a cranberry sauce that my kids actually eat, so that has become part of our Thanksgiving tradition. While she is no longer with us and I miss her terribly, I suspect my grandmother would be just fine with my new creation. Whether your traditions are about food, going to Grandma’s every Thanksgiving or stopping by for dessert at Uncle Jim’s Christmas Day, traditions are part of who we are. For families experiencing separation and divorce, it’s important to try to maintain those traditions. A new normal, along with new traditions, will eventually emerge, but if your kids love going to your in-laws because Uncle John makes the best peach pie ever and Santa makes a special appearance for the little ones – thanks to Uncle Al – please maintain those traditions for your kids. While you might not want to spend the holidays with your (former) spouse and his or her family, based on what clients have told me, consider the following: 1) share the holidays, rather than trying to keep them all to yourself, so your kids can enjoy those special traditions (who doesn’t love spending time with all the aunts, uncles, and cousins? On both sides of the family?) and 2) consider spending the holidays with your former spouse at some point in the future. Sounds crazy, right? No…your kids would love it! While it is probably the furthest thing from your mind right now and might not happen for some time, parents who are able to step up for the benefit of their kids are glad they were able to come together as co-parents and enjoy their children together. And if you have had a good relationship with your in-laws in the past, chances are, you will have a pleasant time, too. ‘Tis the season for giving…and you will definitely be giving your kids a wonderful gift.
In parts 1 and 2, we defined vortex 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. As discussed in previous months, the “divortex” can be avoided by choosing the Collaborative Process. Prior articles describe what Collaboration is – it is a process that avoids court and may use a team of experts to help clients create the best settlement option possible. The professionals on a team are, generally speaking, the two attorneys, a neutral financial professional, a neutral child specialist, and a neutral divorce coach. Although the inclusion of financial and mental health professionals in the divorce process is nothing new, the manner in which they are used in the Collaborative process is unique. The attorneys’ roles are different in Collaboration, as well. While each spouse retains his or her own attorney, the attorneys work together to help the clients achieve an outcome that works for the entire family. The attorneys give legal advice to their individual clients, but more importantly, they help their clients realize what their interests and goals are. The objective of Collaboration is to get to a place where everyone is OK (a win-win) rather than a win-lose. The attorneys are trained in the Collaborative model and interest-based negotiation. A financial neutral helps the divorcing couple with property division and cash flow. Financial neutrals are financial experts and are CPAs, CDFAs, and CFSs who are trained in the Collaborative process and who understand the legal process. A child specialist is a neutral who helps the couple with creating a comprehensive and viable parenting plan. The child specialist is a therapist who is also trained in the Collaborative process. The child specialist is the voice of the children and not only helps the children during the divorce process, but helps parents help their children during this transition. A divorce coach is also a therapist and a neutral in this process. The coach’s role is to the help the couple communicate better. It is important for each spouse to have a voice in this process and the coach can help with that. In high conflict cases, a coach helps the process move along more smoothly. Although it seems like there are a lot of professionals involved in Collaboration, every professional has a specific role. In a non-collaborative case, the attorneys are acting as financial advisor, child specialist, and coach. And while attorneys can help with those pieces of the case, attorneys are not experts in those areas. In the Collaborative process, you get the best advice from the various professionals who are trained to help you reach a settlement. Consequently, a Collaborative team CAN help you avoid the divortex!
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.
Remember hearing that as a child? I do. I said it. I believed it. And then I didn’t. Names DO hurt, even if they aren’t “really bad, mean names.” They can burn a memory into your brain that can haunt you. My son, who is six, is one of the younger children in his 1st grade class. Next to his 2nd grade soccer buddies, he’s a bit vertically challenged, although he’s considered “average” in height. Nonetheless, when he came home in tears the other day because an older child called him “shorty,” he undoubtedly felt the sting of name-calling. Welcome to the real world, my sweet, darling son! We have all experienced it, to some extent, and it stinks. Rather than utter that renowned phrase to my son, my collaboratively-trained lawyer brain went into “better-get-more-information” mode. The conversation went like this: Me: How did that make you feel when he said that? Son: Sad. Me: Mmmmm….I can see that… Son: And angry… Me: Definitely! (Pause). So, what happened next? Son: (without missing a beat) I grabbed the ball out of his hands, dribbled it down the court, and made a basket. Me: (Stunned!) Wow! That is AMAZING! (Beaming with pride…that’s my boy!) So, my son “shows up” this kid by making a basket, yet he was still upset (hours?) later and recalls the name-calling rather than his awesome basket?! This certainly illustrates words have a HUGE impact on others, whether we realize it or not. It doesn’t have to be name-calling, either. It can be just the language we use and the way we say it. The tone in our voice can turn an otherwise innocuous comment into a heated argument. So…STOP. Take a DEEP breath (and maybe throw a stick at some THING). THINK before you speak, and CHOOSE your words carefully. Then go shoot some hoops.