Monday, June 1, 2015

Dealing with a Spouse Coming Out

While it is still fairly uncommon, we are starting to see more situations where a couple has been married a long time and "suddenly" one spouse tells the other that he/she is gay. That will generally end a marriage.

The spouse coming out has usually thought about it for a long time and often tries to avoid or fight the realization that he/she is gay.  Many times, the other spouse is totally surprised, but sometimes the spouse may have had suspicions or there may have even been some discussions in the past.  Either way, this will be a very difficult time for both parties.  It becomes way more difficult if there are kids.  There are often feelings of anger, denial, disappointment and fear.

Because this is such an emotional time, counseling can be very helpful for both spouses and children, but the counseling would be to help the parties adjust, not to undo the change of circumstances.

Assuming there's no turning back, the parents will face divorce.  With that, they should consider the "how" -- which process they will use for the divorce.  Will it be litigation,  mediation, do-it-yourself or Collaborative Law? Given the name of this blog, it should be no surprise that I recommend Collaborative Law.  Here's why, based on my experience:

1. Privacy.  Many people would prefer to keep their personal business and finances private.  That would be true in many cases where a party is coming out, depending on how public they are willing to make things.  In Collaborative cases, the process is private from the beginning.  Litigation is not and litigation is often used prior to going to mediation.  The process of mediation is private, but it does not have all the attributes of Collaborative Law. (see below)

2. Flexibility.  Collaborative Law provides great flexibility in timing and outcome.  You can work at your own speed (whatever both parties agree to) and there are very few limits on the terms of your agreement, as long as it is clear and enforceable.  In litigation or do-it-yourself, and sometimes in mediation, your schedule is at the mercy of the Court.  In litigation or do-it-yourself, the results tend to be according to guidelines and standard outcomes, rather than customized.

3. Utilization of a team of professionals.  This is only the case in Collaborative Law.  We normally use a team of two attorneys, a neutral therapist and a neutral financial advisor.  The therapist helps the parties to listen and communicate better and to deal with basic children's issues, if any.  The financial advisor gathers, organizes, reviews and explains all the financial information. You won't find that in any of the other processes.  In many cases, one parent has little knowledge of the finances while the other has had less involvement with the children.  The experts help level the playing field.

4. Civilized and less stressful.  For everyone going through a divorce, the future is uncertain.  The process of divorce takes an emotional toll on the parties.   Having specially trained attorneys, plus the neutral experts, creates a safer environment.  We plan and manage the meetings to reduce stress for the parties.  It is much easier to attend small meetings than it is to show up at the courthouse and possibly have to testify.

5. No duplicate experts.  We utilize a single, neutral expert for jobs such as real estate appraisal, business appraisal or tax considerations.  We can also use a child specialist if there are significant children's issues.  In litigated cases, it is common for each side to hire their own set of experts, which doubles the cost for the clients.

If you are facing a divorce after either you or your spouse has come out, you should find an experienced Collaborative Lawyer and discuss your situation to see if the process would be the best option for you.  Make sure the lawyer has handled a number of Collaborative cases and believes in the process.  Most Collaborative attorneys can handle litigation if you prefer that process, but not all litigation attorneys can do Collaborative work.  Good luck!

Friday, May 1, 2015

It's Not a 50-50 World!

While many people expect property and debts to be divided 50-50 on divorce, that rarely happens.  There are several reasons for that.

First, Texas law does not mandate, or even suggest, an equal division.  Texas law requires that property division be "just and right".  That leaves a lot of wiggle room.

Sometimes, there are great disparities of income between the parties.  In many cases, one party has been out of the workforce, taking care of the home, while the other spouse made a good living.  When a person rejoins the work force later in life, it can be tough to get a job at all, much less a good-paying one.  Even when both parties have been working during the marriage, disparities in income are still common.

There can also be health differences which affect both income and expenses.  If a party can't work or can do certain things, obviously their income will suffer.  In addition, one party may have chronic health issues that lead to much higher expenditures. Either way, it makes sense to help out the party with a greater need.

In some cases, one party may have significant separate property income or just plenty of separate property assets while the other party has little or none.  The party with more separate assets often just doesn't need the community assets as much as the party without separate assets.

In each of those situations, it makes sense to provide a little more help to the disadvantaged party.  

Both parties need to adjust their expectations when dividing property and debts.  There are rarely equal divisions in divorces.  Instead, it makes sense to focus on actual needs and abilities of each party.

Before you get started on your divorce, it's a good idea to discuss approaches to property division with your lawyer.  Don't proceed based on your assumptions about the law.

Sunday, March 1, 2015

Why to Consider Collaborative Law

Whether you are facing the start of a divorce or other family law matter, or you are already unhappily experiencing a litigated family law matter, you should be aware that there is a more peaceful, less stressful, more creative alternative to litigation.

There are actually many reasons why people choose to use the Collaborative Law process.  Here is a checklist of some of the reasons.  If any of the reasons appeal to you and you are facing a divorce, you should consult with an experienced Collaborative attorney. It's best to start in the process, but you can always switch over in mid-stream if both parties have Collaborative-trained attorneys.

  • Privacy: You don't want your finances or personal behaviors out in public.  Many people don't want publicity and are concerned for their jobs.  Public officials, professionals, business leaders, professional sports figures and others usually prefer that their private lives not be opened up in public.
  • Need unusual terms:  Courts tend to use standard guidelines and approaches, but many people need special consideration that's not available in court.  It might be alimony, even if they don't technically qualify for it, or special visitation schedules because of unusual work schedules, or special consideration with the children or unusual cooperative agreements to keep a joint business going without taking it apart in a property division.  Collaborative agreements can be a lot more flexible and creative than court is.
  • Control timing:  Courts almost always will impose a scheduling order if the case doesn't move quickly to resolution. That schedule often stretches out for a year before the final trial date.  With Collaborative Law, on average, cases usually can be finished in 3 to 6 months, but can be done more quickly or more slowly, depending on the needs and desires of the parties.  A Collaborative case can be pending for up to 2 years without a court interfering with it.
  • You want a civil, peaceful process:  Litigation is a combative system not based on cooperation. Litigation attorneys must follow the rules and deadlines of the system and they depend on having a variety of hearings that can get pretty ugly.  Collaborative Law uses a series of short meetings and in Texas, we normally use a neutral therapist as a communication specialist who helps both parties work together effectively.
  • You want to make your own decisions:  Litigation leaves most decisions ultimately to the judge, or the attorneys make agreements based on what they believe the judge would rule.  In Collaborative Law, parties make their own decisions.
  • Want a neutral Financial Professional to help you understand the financial issues and options: In litigation, in some cases, each party will hire their own financial advisor, but most of the time, they don't use one.  In Collaborative Law cases, we normally use one neutral advisor for both parties in every case.
  • You want to offset a power advantage by your spouse:  It's very common in litigation for one party to have more power than the other because the party has knowledge, experience or information, or maybe has physically intimidated the other party.  In Collaborative, the neutral experts prevent such imbalances by sharing information and educating both parties.  Intimidation is not allowed to be used.
  • You want to be sure you get all the information you need for making decisions: In litigation, it's not unusual for one party to hide information. It rarely happens in Collaborative Law because we have an extra set of eyes reviewing the finances for everyone and we have open disclosure of relevant information.  Kid issues are worked through with the communication specialist or sometimes with a child specialist who are very experienced.
  • You want a more efficient process:  Litigation is  pretty inefficient.  Cases often have multiple temporary hearings. Information is usually gathered by the inefficient and over broad Discovery process which requests much more information than is necessary.  Collaborative Law has a step-by-step process that is followed in a series of short meetings that have agendas that are followed.  The process generally takes a lot less time than Litigation.
  • You want to keep a good relationship with your spouse:  Litigation pits each spouse against the other.  One wins and other loses.  In Collaborative cases, the parties work to achieve mutually beneficial goals.  With creative solutions, we avoid the old win-lose scenario.
  • You want to minimize fighting over the children:  Standard options in litigation often lead to unnecessary fighting over the kids.  Instead of finding ways to cooperative, as in Collaborative, litigators often are in custody fights or fights over the number of days per week they see the kids.  With the child specialist or communication specialist, Collaborative parents work informally to create plans that they are both happy with.
  • You want to improve your communication with your ex:  Improved communication in litigation means sending messages through your lawyer rather than sending ugly text messages or using the kids as messengers.  In Collaborative Law, we work on listening skills and practice how to say things in less offensive ways so that reasonable discussions can be held.

Saturday, February 14, 2015

Considering Reconciling?

This is kind of a chicken and egg situation.  Which came first, the possibility of reconciliation or choosing to use the Collaborative process?

Some people choose to try a Collaborative approach to divorce because they want to keep open the possibility of reconciling with their spouse.  Other people end up reconciling because they tried Collaborative Law and their experience working with their spouse gave a spark to the idea of possibly reconciling.

If reconciliation is a possible outcome you would consider or desire, here are some suggestions to help you get to that possibility.

  • Don't burn bridges.  Be kind to your spouse and don't say or do mean things.Trying to wear down or wear out your spouse is a terrible strategy for reconciliation.
  • Listen.  One of the big problems in many marriages is poor listening skills.  This would be a good time to learn to be an active listener and also to not interrupt your spouse.  Respond appropriately, but you need to hear out what your spouse is telling you.
  • Forgive.  Don't hold grudges.  There are plenty of reasons to be upset with your spouse, and for your spouse to be upset with you, but you don't have to be upset.  Be mature and forgive your spouse.  You will undoubtedly need forgiveness yourself, so be willing to overlook some things and forget about past issues.
  • Admit mistakes.   But try to focus on the future.  Don't waste time arguing over past mistakes and slights.  Admit and move on.
  • Get professional help. That means, see a counselor.  I'm not a therapist and most lawyers aren't.  Please get help from a licensed counselor who works with couples.  There's no quick cure for marital problems and there are no reliable self-help programs.  You need a professional and you need to be willing to make changes.  If either spouse refuses to go to counseling because "I don't have a problem", reconciliation won't work.  Both parties need to be willing to fully commit to getting proper help.
There's no guarantee that using Collaborative Law will lead to reconciliation, but  the Collaborative approach sure establishes an environment much more conducive to reconciliation than litigation does.  Good luck!

Monday, September 15, 2014

Advantages of Using an Experienced Collaborative Law Attorney

There are getting to be a number of trained Collaborative Law attorneys in Texas and other places.  That's good because it gives clients more to choose from.  On the flip-side, it's sometimes hard for a party to figure out who to hire to help them through the process.

In a previous post, I wrote about how to choose an experienced Collaborative attorney.  Here are some reasons why you should want to hire an attorney with good Collaborative experience.

  • Experienced attorneys start to recognize and understand different personality types.  This helps them in dealing with the parties in a case.  
  • Attorneys with extensive Collaborative experience naturally have experience and confidence in the other team members.  Over time, Collaborative attorneys tend to work with the same attorneys and other professionals in different cases -- not in every case, but often.  That helps the professionals trust each other and work together effectively.
  • With experience, attorneys become able to recognize problems early on.  They can then work with the other professionals to stop problems before them get too big.
  • After a while, experienced attorneys begin to learn effective ways to resolve stand-offs.  Occasionally, parties will start to get stuck in negotiating and they would have a hard time working out a solution without the attorneys and other professionals.  Experienced Collaborative attorneys have often seen such problems before and usually can help the parties work their way out of the difficulty. 
  • Experienced Collaborative attorneys are more understanding of their own clients.  The attorneys are often more sensitive to the feelings and concerns and can more readily help their clients when they start to get down or upset. 
If you are considering trying a Collaborative divorce, you should carefully examine the experience and training of the attorneys who practice Collaborative Law.  Getting one who is very experienced will pay off in the long run.

Monday, September 1, 2014

How to Tell Whether an Attorney is Experienced in Collaborative Law

As more people decide to give Collaborative a try in resolving their family law issues, clients are faced with having to choose among a number of attorneys who say they practice Collaborative Law.  Naturally, some attorneys have more Collaborative experience than other attorneys.

For the record, there is no "certification" for Collaborative Law in Texas.  If you see a claim that someone is "certified" in Collaborative Law in Texas, that attorney or other professional does not know what they are talking about.  You should look elsewhere for your representation.

In a later post, I will explain the advantages of using an experienced Collaborative attorney.  For now, I want to explain how to tell whether the attorney has good Collaborative experience.

Here are some things to look for:

1. Active work in Collaborative Law for a number of years. Someone who just got trained in the last year or two may be a good Collaborator, but would probably be better with experience. There's no substitute for having handled a lot of cases. This also shows a commitment to using the process.

2. Extensive training.  All Collaborative lawyers should have an initial two-day training to get the basics down.  Afterwards, attorneys should get training about every year.  There is no legal requirement for that, but training matters and getting advanced training helps with skills.

3. Speaking at public or training events.  This is another clue about who is keeping up to date and who knows about the field.  You can usually find this on web sites.

4. Leadership.  Someone who has acted as a leader in Collaborative Law groups and activities shows commitment to the use and expansion of the process.

5. Being a though leader.  Someone who writes about Collaborative Law usually understands the process, the problems, strategies and solutions.  Prospective clients also can read what has been written and decide if they like the attitude and approaches of the writer.

Looking for these signs will help you identify whether an attorney is an experienced Collaborative attorney.

Friday, August 15, 2014

Being Realistic --Don't Get Greedy!

There's a lot of pressure when it comes time to resolve a divorce.  Mostly, it's self-imposed, but it is real nevertheless.  A big concern is for both parties to be as financially secure as possible even though you increase expenses by splitting one household into two.  Often the party with less earning power is very fearful about the future.

As a result, sometimes one party to a divorce starts pushing hard to get as much cash or other assets as possible.  Aside from the fact that such an approach is straying from the focus on the goals that was discussed at the first meeting, the parties can easily get into conflict over the money.  That can make it harder to get to an agreement over the broader issues.

To avoid those problems, the parties should always be realistic. Here are some things to keep in mind.

1.  Don't over-reach.  In the Collaborative process, we emphasize that we are not bound by standard guidelines or presumptions.  We start with the goals of the parties and try to find solutions consistent with the goals.  However, that's not a license to insist on unreasonably large shares of the assets.  That could make an overall agreement much less likely if someone appears unreasonable or greedy.

2.  Listen to your attorney and the other professionals.  We and they are on your side.  We are all working together to help everyone reach an agreement.  We try to expand the pie and create win-win situations, but we need you to follow our advice.  Even when we disagree with you, we are all trying to help both parties.

3.  Both parties need to feel good about the  result.  If one side asks for so much that the other side feels mistreated or cheated, the deal will fall apart.  Even while you are taking care of your needs, it is important to think of how your spouse will feel about your proposal.  No one forces a settlement on the other side -- there must be voluntary agreement.

4.  Keep in mind that both parties will have to adjust their standard of living.  In most cases, the parties try to stretch the same amount funds to cover two households, instead of one.  There will be changes for both parties and there won't be as much money available per person as there used to be.

5.  Don't get too complicated.  While there may be many issues on the table, don't try to create such an elaborate plan that it will fail.  Be realistic!  Keep things simple. 

In sum, don't focus exclusively  on yourself.  Think about your spouse and how he or she will react to the solutions you propose.  Be willing to compromise and try to find some points that you can agree to that will benefit your ex.  Goodwill goes a long ways!