Saturday, March 15, 2014

What to Expect: How Easy is Collaborative Law?

Some people think that if you choose to work out your divorce issues and you agree to not go to court, you have elected to use a nice, simple, easy process.  While the process is generally nicer than litigation and is intended to at preserve family relationships (assuming you want or need to), it is not necessarily simple or easy.

If you are considering using Collaborative Law, we want you to have realistic expectations.  The preparation and meetings are often difficult and time consuming.  Here are some things to keep in mind if you begin the Collaborative process.

1.  There will be a number of meetings.  People often try to cut back on the meetings, but I can assure you that the attorneys and other professionals do not set up unnecessary meetings.  Issues tend to be handled better if we work on them in joint meetings rather than by email or phone calls between attorneys.  We always try to limit the meetings, but please work with the professionals if we say we need another meeting.

2.  Express what you want. Don't expect your attorney to speak for you.  This is not the process where you attorney writes pleadings and makes arguments for you.  We want you to speak up for yourself.  Your attorney will help you prepare.

3.  Each of you must listen to the other side.  In court, it often feels like whoever speaks first or loudest is the one the judge will pay attention to.  In Collaborative, we want both of you to speak and be heard by the other.

4.  Be patient.  This may take a while.  Even though going to court would probably take 9 to 18 months to reach resolution, people in Collaborative sometimes have unrealistic expectations that the process can be resolved in 2 to 3 meeting over a couple of months.  Some minimalist cases can be done that quickly, but most will take 3 or 4 months and some will take more.

5.  You must be an active participant.  You have to gather information, plan, be creative and suggest solutions.  There will be meetings to attend and you may have to study different options.  There will be times to meet with your attorney and times to meet with the other professionals.  You must speak your mind and tell us what you like or don't like.

6.  Be willing to grow.  You may need to expand your horizons.  Don't settle for the what the law will give you.  Ask for more and ask for different solutions.  We are talking about a major life event, so look into the future.

7.  Expect some discomfort.  You will hear some things you don't like.  You will be confronted with difficult issues and will have to compromise where you may not want to.  Instead of giving up or giving in, you can learn to seek other alternatives and find new solutions that can work for everyone.  It's just not the situation where you choose from a menu of possibilities.  Sometimes you will need to create a new menu and that may be hard.  But, it will be worthwhile.

Having realistic expectations will ensure that the Collaborative process is successful and less stressful for you.  Good luck!

Saturday, March 1, 2014

Discussing Why You Want to Use Collaborative Law

There's an important discussion that needs to take place, but which is often overlooked, at the start of a Collaborative Law case.  People choose to use the process for many different reasons, sometimes being influenced by more than one reason.

Here are some of the reasons why people choose to use Collaborative.  They are looking for:

  • A civil, less stressful, resolution of difficult issues.  Instead of "warfare" between spouses, they can choose to negotiate as adults to find acceptable ways to meet the needs of each party.  
  • An inexpensive process to resolve disputes.  
  • A fast process to resolve disputes.
  • A fair process.
  • A process where the parties can control the expenses.
  • Privacy.
  • A process where the parties make the decisions and control the outcome.
  •  A process where the parties control the timing, instead of leaving it to a court or arbitrary rules.
  • A process  that preserves important family relationships.
These are all reasons that different people have expressed in different cases.  They are all legitimate values, but you should know that:

  • Collaborative Law is not "cheap".  Cheap is a relative term.  In general, Collaborative Law can be less expensive than litigation because we don't do formal discovery or depositions, we don't use competing experts and we don't have numerous court appearances.  That's money that's saved.  On the other hand, there are two attorneys, usually a neutral mental health professional and a neutral financial professional and multiple meetings. We do gain some efficiency by having the other two professionals do a lot of the work on parenting issues and gathering financial information and creating budgets without having the attorneys sit in on the preliminary work.  My opinion is that, on balance, Collaborative can be cheaper than litigation, especially compared to hotly contested cases.
  • Collaborative Law is not inherently "fast", unless both parties are in agreement as to how fast they want to go.  The general rule is that the process can move along only as fast as the slower party is willing to go. One party cannot rush the other party in Collaborative.
What to Do
At the start of your Collaborative case, please take some time out to discuss with your Collaborative lawyer why you want to use the process.  Explain your expectations.  If you have unrealistic expectations, it is better to discover that early on so adjustments can be made or a new course chosen.  The attorneys and other professionals can adjust their approaches if they know from the beginning what is really important to you about the process.

The result will be greater comfort for you and a greater chance for a successful outcome!

Saturday, February 15, 2014

Is Collaborative Law Faster than Litigation?

Is Collaborative Law faster?  Usually, BUT it's not necessarily "fast".

The Collaborative process is deliberate.  We follow a Roadmap that is logical and efficient.
  • At our first joint meeting, we usually explain the process, make sure everyone understands it and then get a firm commitment from everyone to follow the process.  We also discuss the goals and expectations of each party.
  • The next step is gathering information.  Financial information is gathered by the neutral financial professional (FP).  Information about children's issues, if any, is gathered by the neutral mental health professional (MHP).
  • After we have the information to work with, we develop options to consider.  
  • The final step is to discuss and negotiate to an agreement.
Other considerations.  
  • We always have to remember that we can't go faster than the slower party is willing to go.  There are different levels of emotional readiness for divorce.  It is fairly common for one party to have been thinking and planning for the divorce for a long time.  That party is over the marriage and often is very anxious to get the divorce over with.  On the other hand, the other party may be taken by surprise and may need quite a while to adjust if the first spouse kept everything a secret.
  • Sometimes, some preparation is needed to transition out of a marriage.  In most Collaborative cases, the parties prepare budgets to help them make financial decisions.  That takes some time.  A house may need to be sold, refinanced or transferred to one party. It may take a while to divide certain assets.  With children, there may need to be planning about how and when to tell them or how to manage the sharing of the parenting post-divorce.  One party may need to find a job and/or get spousal support for some period of time.
  • There may be other reasons to delay final action on the divorce, including health, family obligations, job obligations, housing issues, etc.  Usually things can be wrapped up fairly quickly, but it could take a few months.  For someone very anxious to get the divorce over with, that can seem like a lifetime.
Comparison to litigation.  In litigation, there are numerous things that can delay progress.  Overall, the parties are looking at 9 months or more to reach a final trial in a contested case.  This is because the parties typically have to deal with:
  • Temporary hearings
  • Other hearings
  • Discovery
  • Preparation of an Inventory and Appraisement
  • Scheduling order from the Court
  • Mediation deadline just before trial
  • Trial date 9 months or more away.
What sometimes happens is one party has been thinking about the divorce for a long time,  without telling the other party.  When the divorce gets started, the first party is immediately ready for the process to be over because he/she has thought it over and planned everything for months.  The other party is surprised and unprepared and needs time to collect his/her thoughts and then begin making plans.

In a Collaborative case, the party who plans ahead feels like the process is moving very slowly.  The other party feels the opposite.  Gradually, the second party gets up to speed, but it may take a while.  

Even if it does seem slow at first, the Collaborative process will almost always move much faster than a litigated divorce.

Saturday, February 1, 2014

Is Collaborative Law Cheaper than Litigation?

Is Collaborative Law cheaper?  Probably.

Is Collaborative Law cheap?  Not necessarily, but it's all relative.

The Players.  In Texas, each party hires their own attorney.  Then, the attorneys select a neutral mental health professional (MHP) and a neutral financial professional (FP) to work with both parties.  That sounds like a lot of expense, but keep in mind that the MHP and FP do a lot of independent work in the case at a cost of less than half the charge of just one of the attorneys.

The Process.  We will have a series of joint meetings to  discuss and review facts and issues in the case. (We follow a Roadmap that is a step by step process of setting goals, gathering information, generating options and coming to agreements.)  At the joint meetings, we usually have both attorneys and both other professionals, unless we are just talking about non-financial children's issues.  Then we would have the attorneys and MHP.

Efficiencies. The Collaborative process operates very efficiently regarding creating a parenting plan and gathering and organizing financial records.  We have "offline" meetings with just the MHP and the parties on parenting issues and just the FP and the parties to do the preliminary financial work. 

In a litigated case, the attorney typically would be meeting with their client to gather information and formulate a plan on parenting issues.  The MHP is much less expensive and probably more qualified to help the parties than either attorney. 

Similarly on the financial issues, in litigation, the attorney would be telling the client what information is needed, then would review whatever was produced and would prepare an Inventory and Appraisement. The FP is much better qualified and less expensive in gathering, organizing and evaluating the finances.  In addition, the FP helps both parties plan and prepare budgets for post-divorce, which is rarely done in litigation.

Comparison in litigation

Hearings.  Especially in hotly contested cases, there are multiple hearings at the courthouse.  That means time off work, preparation time and attorney's fees.  We usually average about three hours at court every time a case has a hearing because we end up waiting around to be heard and then there's the time in the hearing.  And there are the inevitable postponements and resets.

Discovery. In litigation, we usually do discovery, which is a formal process involving written requests for information and as a result, the gathering of voluminous, often irrelevant, documents and photos that have to be copied or put on a disk for the other side.  Parties usually spend thousands of dollars on discovery alone.  Then there are often fights, and more hearings, about whether all the documents requested were produced.

Inventory and Appraisement.  This is like an expanded version of the joint spreadsheet used in Collaborative cases, but with a lot more detail, and each side prepares their own.  That means more than twice the cost.

Depositions.  These are a means of discovery where a witness is under oath and is asked questions by one or both attorneys.  There can be a number of these.  Each client will pay for the attorney's fees and some court reporter cost.

Mediation.  Most cases will settle in mediation.  The problem is that mediation usually takes place after many months, often just before trial.  You will pay the mediator as well as your own attorney.

Trial.  If mediation fails, you will go to trial. In Tarrant County, it usually takes 9 months to a year or more to get to trial.  Trials are also very expensive.

Paperwork. In addition to theses steps, there will be a lot of paperwork, from letters back and forth to pleadings and orders and discovery documents. It all costs money.

Bottom Line:  While Collaborative cases may seem expensive if viewed with no context or comparison to litigation, they actually are usually a lot cheaper than contested litigated cases.  In the Collaborative process, there are no hearings, discovery, Inventory, depositions or trial.  There's usually no mediation and there's a lot less paperwork.

If you want to compare processes, look at all the costs!

Wednesday, January 15, 2014

Does Shared Parenting Require an Amicable Relationship?

Joint custody is easy to imagine where the parents get along even after splitting up.  What about the significant number of cases where the parents don't like each other?  How can they work together in a shared custody arrangement?

Texas law provides a presumption that parents should be in a joint custody relationship, although that does not mean 50-50 time sharing or any other particular arrangement.  Joint managing conservatorship, the legalese term, is just a title.  The real meaning comes from how the time is shared between parents and how the powers, rights and duties of parents are shared between parents.

So how can parents share parenting if they can't get along?  It's certainly more difficult than when the parties like or tolerate each other.  There are some ways to approach such a situation to assure successful co-parenting.

1.  Focus on the kids first, not the parents.  Try to keep the children's lives has unchanged as possible, keeping in mind that their needs will constantly evolve as they age.  Mainly, don't think in "ownership" terms about "my time" or "my children".  Put the focus on what the children need or want and how they can best be attended to.  Don't make it a control fight between parents.

2.  Add structure.  Sometimes locking down schedules and responsibilities takes away the need or opportunity to pick fights between parents.  If everything is clearly defined in court orders, that should help avoid or minimize the conflict.

3.  Model good behavior.  In the long run, the children will benefit if at least one parent models good behavior.  Hopefully, the other parent will start to follow suit.  If not, keep a stiff upper lip and be the better person.  It's good for the kids.

4.  Practice good communication with the other parent.  Don't be argumentative.  Don't make derogatory  comments about the other parent.  Stick to the facts.  Don't worry about blame.  If there are problems, just fix them.  Be on time and be polite.

5.  Take a class on co-parenting.  Many courts require such a class.  It's best to take a class in person (your attorney can help you find a good one), but you can also take one on line.  It would be great for both parents to take the same class, but it's still good if just one takes the class.  And, as is true in many other matters, refresher classes in the future would be helpful also!

Regardless of how well you get along with the other parent, hopefully you can find some common ground around the children and learn to work together.  Good luck!

Wednesday, January 1, 2014

Is Collaborative Law a Good Fit for You?

In a recent blog post, Adryenn Cantor, a San Diego, CA attorney included an excellent list of five questions for people to ask themselves to determine if they are a good candidate for using Collaborative Law in a divorce case.  Here are her questions:
  1. "Do you want to end your marriage with respect and integrity? 
  2. Is taking a rational and fair approach to dividing your assets more important than seeing yourself as a winner and your spouse as the loser in this process?
  3. Are your children the most important aspect in this process?
  4.  Is saving money, which could go to you or your children more important than spending it on protracted litigation?
  5.  Do you want to model for yourself, your spouse and your children how mature adults handle significant challenges?"

Sunday, December 15, 2013

The Cost of a Collaborative Case: Is It Cheap? Part 2

There's an old joke about divorce that sometimes goes like this:

Q:  Was your divorce cheap?
A:  No, but it was worth it!

That joke could now apply to Collaborative divorces.  They are not cheap, but, if people must go through a divorce, this process is a much better way to do it.  At the same time, there are some ways to save some money.  Generally, the parties are better behaved and managed and cases are better resolved.

1.     The process allows the parties and attorneys to avoid expensive activities.  In difficult litigated cases, a lot of actions are instigated to wear down the other side.  There are often multiple hearings for temporary orders, clarification orders, modifications, enforcement and other reasons.  It becomes a war of attrition as one side beats up on the other, all the while costing both parties much more money.  Another means of that is using demanding or threatening letters between the attorneys.

       Since Collaborative Law doesn't allow the parties to go to court, that avenue is eliminated.  In addition, there is a lot more direct communication and dealing with the issues in Collaborative cases, instead of posturing.  Plus, the other professionals are closely involved and helping.  For example, if there are visitation problems, the mental health professional will meet with the parties, if needed, to help them resolve the issues.  They can also be addressed directly in joint meetings and there is a great deal more direct communication, even between meetings, among the attorneys and other professionals.

2.     There's better decision-making in Collaborative cases. There are several reasons why the Collaborative process is generally better than litigation.
  • The parties participate in all decisions.  In litigation, often the attorneys tend to make many of the decisions, standard guidelines are used or the issue is turned over to a judge to decide.  In Collaborative cases, the parties participate in discussions and no agreement is made unless everyone agrees.
  • When needed, neutral experts are readily brought in and the mental health professional and financial professional are normally always involved, so the parties can easily turn to experts in Collaborative cases.
  • There is a focus on the future, instead of assigning blame for past problems.  Looking ahead and not looking back saves time and avoids unproductive arguing over fault. It also allows the parties to move ahead without further damage to their relationship.
3.     Finally, there's a greater commitment to the terms of an agreement than there is to the terms of an order imposed by an outsider, such as a judge.  There's more buy-in when the parties participated in creating a plan, compromised with each other and committed to the final terms.  Even though parties should follow an order from a judge, they are going to feel better and usually be more willing to follow their own agreement which is probably slightly (but importantly) different from a judge's order.  That usually means there's more compliance and less fighting post divorce!

 As the old joke suggests, divorce is rarely cheap, but if it's done right, it can be worth it.  If you are facing this difficult time, you should look into using the Collaborative Law process.