Wednesday, June 15, 2016

How Do We Start a Collaborative Divorce?



Once you decide you want to use the Collaborative Law process instead of litigation or mediation, you're probably ready to get started.  So, what should you expect as you get started?  

Different attorneys may do things slightly differently, but here are some steps that are fairly common.

1.  Make sure you understand how the process works.  You and your attorney should have a good discussion and go over the process thoroughly.  It's not like anything you would see on TV.  You should learn what to expect at the first meeting -- it's usually handled about the same from case to case.  You can also talk about how to prepare for the meeting.

2.  Have a discussion with your attorney about why you want to use Collaborative Law.  Some of the common reasons are because of the privacy, getting to control the process, getting to decide the terms of the final agreement, being able to create non-traditional solutions, focusing on needs and interests rather than arbitrary guidelines, being able to maintain important family relationships or using a less stressful process.  It helps for the attorney to understand your motivation and to know what's really important to you, so they can help you achieve your goals.

3.  Review documents.  There will be a Participation Agreement that is fundamental to the process.  It is written in moderate legalese, so it will take some interpretation, but it is very important that you understand it. In part, it explains again how the process works. You might also review the Roadmap to Resolution, which is an outline of the steps in the Collaborative process. You will probably also go over the Expectations of Conduct. That's a reminder on how to behave during the Collaborative process.

4.  Outline your goals.  One of the best advantages of Collaborative Law is  that we are always working to achieve your goals and meet your needs post-divorce.  We need you to carefully explain what's important to you.

5.  Study your calendar so we can schedule the first meetings.  We want to schedule the first joint meeting as soon as possible, and then 2or 3 more joint meetings, along with separate meetings with the therapist (if there are children's issues) and the financial neutral. It helps to schedule the meetings early so we can keep progressing.

These are the basic steps, but talk with your attorney about what he or she wants you to do.  

Some Next Steps:  Gather financial records and start working on a budget, if you're in a hurry.  The financial neutral will tell you what's needed and help you organize it.

Wednesday, June 1, 2016

Why Choose Collaborative Divorce Over Mediation?


When people are considering their options for divorce, it usually boils down to litigation, mediation or Collaborative Law, if they are aware of the Collaborative option.  If they choose to avoid traditional litigation, they usually consider either mediation (often without attorneys) or Collaborative Law.

So, why would someone choose Collaborative Divorce over mediation?  For different people, one process may work better or feel better than the other.  Here are some points to consider if you face this process decision.

1.  With Collaborative Law, each party will have their own attorney throughout the process.  That can lead to more informed decisions and some assurance that the important issues will be discussed and resolved.  With mediation, sometimes parties choose to work with a mediator and without attorneys while they hammer out an agreement.  That will save money initially, but sometimes the parties, without attorney guidance, make bad decisions that have to get un-done. That gets expensive and it might kill the agreement. Sometimes, it's better to spend a little more money as you go along than to take a chance on making some bad financial and life decisions.

2.  In Collaborative, we normally use a team of helpers.  On financial decisions, a neutral financial professional works with both parties to gather and organize financial data. That's especially helpful when one spouse does not really have much financial experience or knowledge.  On children's issues, the neutral therapist or child specialist helps the parties calmly work out a plan to share time and responsibility regarding the children.  Both neutrals are much better than relying on just standard guidelines approaches.  They can help the parties be creative because of their expertise and experience.

3.  There's a more informed decision in Collaborative. With attorneys and neutral experts, plus an explicit agreement to share all relevant information, Collaborative Divorce provides the means to get the needed information to both parties.  In mediation, there is less oversight and it can be hard to get some information if one side wants to avoid disclosing certain facts.

4.  In Collaborative cases, documents get prepared correctly.  In mediation, especially without attorneys, it's often hard to find someone  who will prepare the documents.  Even worse, some people with significant assets attempt to use online forms, a sure recipe for disaster.

5.  Collaborative Law utilizes interest-based negotiations.  The parties start off by establishing their goals and interests, and then the negotiations are always focused on trying to meet the needs of both parties.  In mediation, most often, the parties revert to positional bargaining, like that used in buying a used car.  One side starts high and the other starts low.  Often, only one of the parties comes out in good shape in an agreement.

Let me emphasize that mediation can be a very good process.  I am a mediator and I strongly support the process. The biggest problems occur when the parties try to save money by negotiating their own divorce without lawyers.  That will almost always lead to major problems.  Please consult with a lawyer before you start negotiating on your own on such serious matters.


Sunday, May 15, 2016

How to Protect Yourself in Divorce Over 50


As Baby Boomers reach middle age and beyond, many will experience a divorce occurring late in life.  That timing can create special problems.  Getting a routine divorce and splitting everything in half may seem like an acceptable outcome, but it may not be. 

My suggestion is to look into using Collaborative Law.  Because a Collaborative divorce is focused on the goals and needs of the parties, you will automatically be starting in a better position. Rather than mechanically dividing everything in half, Collaborative gives you the opportunity to craft a customized divorce agreement that can benefit both parties.  Do yourself a favor and talk with a Collaborative attorney before you get started.

Here are some suggestions if you are facing a "gray divorce":

1.  Don't blow things up.  Don't start off by attacking your spouse or trying to punish him/her for past transgressions.  Your aggressive moves will probably be met by equally aggressive moves and things will escalate.  You will be much  better off, and save money, if you don't start off in battle mode.

2.  Work with a counselor.  This is a good way to keep a lid on it.  A therapist can help you deal with the natural anger that often occurs in divorce.  Having a rational, experienced person on your side to listen to you vent and to make helpful suggestions is extremely valuable.

3.  Get a job or training, if you need to.  Coming out of a divorce, both spouses normally have to work. If you've been out of the workforce for a few years, or a lot of years, you probably will need some education to sharpen and update your skills.  If you need to put off starting the divorce so that you can go  to school on community funds, do it if you can.  There will always be less money once you separate, so do what you can while you are together.

4.  Gather all the financial records that you can.  Make copies and keep them in a secure place.  Don't destroy or hide the original records.  Just get copies of the last 2-3 years of bank and credit card statements, as well as tax returns, insurance policies, mortgage records and any other significant records you can uncover.

5.  Make a plan for yourself.  Identify needs and goals that will be important to you after the divorce. Work on a financial plan, including a budget, early on.  You may need to work with a financial planner who can help you understand your assets, liabilities and possibilities.  Also, create a network of family and friends who can support you emotionally as you go through the process.  You need to work with a counselor, but friends are also invaluable.  Don't forget to consider your kids, even the adult ones.  They can have a good relationship with both parents post divorce and you should not be trying to sabotage it.

The most important step, if you are over 50 and facing a divorce, is to consult with a Collaborative Lawyer as early as possible.  Do as much advance preparation as possible to improve your outcome. Good luck!

Sunday, May 1, 2016

Can You Negotiate Your Own Divorce?


The short answer is yes, but. There's always a but. On your own, you may make mistakes on some important issues.  To try to negotiate your own divorce without professional help, you should have only a very limited and simple estate, and probably no kids. 

Depending on your situation, you may want to try the Collaborative divorce process as an alternative to make sure your divorce is handled right and the result is keyed to meeting your needs.

 Here are some questions to ask yourself if you are considering a DIY divorce.

1.  Do you have the information you need?  That would be complete and current records on the finances and information about what to expect regarding your kids.  You may also want some past records on financial accounts if you have concerns about what happened in the past.

    Do you have some assurance that you have the complete and correct information?  Is something being withheld?  Do you have just partial information? Are you relying on what your spouse tells you?  Do you know what you don't know about?

2.  Do you have adequate time, without pressure, to negotiate?  Often, one party gets in a big hurry to finish.  That's often the party who controls the information.  An impatient spouse can make negotiating very uncomfortable if you are doing it on your own.

3.  Do you understand the law and the issues you are dealing with?  Many of the issues are quite complicated and subtle distinctions must by made.  Omissions or wrong decisions can be very expensive.

4.  Are there any issues that your spouse refuses to negotiate?  That can happen if one spouse believes he or she is right or that they might be treated unfairly, from their point of view. Without professionals intervening, one spouse may say that some things on non-negotiable.

5.  Do you feel equal power in the negotiating with you spouse?  If not, you may be in for a rough time.  Sometimes the weaker spouse just caves in to get it over with, and they lose out on things they should have gotten.

6.  Do you think negotiating will be simple?  It usually isn't.

7.  What should you do about the house? Sell it?  Jointly own it post-divorce?  Let one party keep it?  How will the mortgage be paid in the future?  This can be both an emotional issue and a financially draining situation.

8.  Is alimony an issue?  That's often a hot-button issue and often both parties are misinformed about the law on alimony.

9.  Do you know what to do about health insurance? Everybody needs a policy now. Both parties often start out on a single policy during a marriage. When the divorce is final, one party has to get off the old policy and then get coverage somewhere.  Plus, provision to cover the children is necessary?  How are those policies paid for?  There are lots of decisions to be made. 

10.  Do you know what to do about Social Security and retirement assets?  These are very complicated and involve what might be the biggest assets.  Mistakes can have serious consequences later in life.

Bottom Line:  Unless you have an unusually small and uncontroversial estate, you should hire an attorney to help you negotiate your divorce.  Keep in mind that Collaborative Law provides a safe process and lots of professional support when you need it.  When you are deciding how to proceed, be sure to at least consult with a trained Collaborative lawyer to see if that process would benefit you.  Good luck!


Friday, April 15, 2016

Is Collaborative Divorce Right for You?


Process option choices:  There are now several  different approaches to getting divorced:
  • There's the traditional litigation model where you go to court, early and often in many cases.
  • Another possibility is sitting around the kitchen table and making decisions like reasonable adults.  That won't always work, but it can be great.  
  • Another option is mediation, where you have a neutral 3rd party working with both spouses to help them reach an agreement, but the mediator cannot give legal advice to either party. 
  • The newest approach is Collaborative Law where the spouses each hire specially trained attorneys who don't go to court with their clients. Usually, a neutral therapist and a neutral financial advisor  help the parties.  There is a regular step-by-step process involving a series of meetings to reach peaceful agreements.
Reasons to try Collaborative:  So, how can you tell if Collaborative Divorce is the right process for you to use?  It may be if any of the following are concerns to you.
  • Privacy
  • Control over the timing
  • Control over the outcome
  • Less stress
  • Not having to accept arbitrary or standard solutions
  • The ability to create out-of-the-box solutions
  • Equalizing power
  • Needing expert help on children's issues
  • Needing expert help on financial issues
  • Wanting to be able to speak up in a safe environment
  • Preserving relationships between parents
Other considerations: 

1.  Are you willing and able to negotiate, work and compromise with your spouse?  In a Collaborative case, keep in mind that the negotiations and work with your spouse take place with a team of two attorneys, a neutral therapist and a neutral financial professional (on financial issues).  If you don't want to negotiate and participate, you may want to turn everything to a Judge who doesn't know you and who will probably default to a standard or guidelines approach.

2.  You don't get your day in court in the Collaborative process.  Instead, you do get to fully express yourself in front of your spouse in a safe environment.   Plus, in a Collaborative setting, your opinion and choices matter.  You fully participate in fashioning the terms of your divorce. "Your day in court" is not really very valuable. It's mostly symbolic.  Stating what you want in court doesn't give any assurance that you will get it.

3.  Collaborative Divorces are not cheap, but they're good value.  Litigated divorces aren't cheap either.  In general, litigation can be a lot more expensive.  It usually lasts longer than Collaboration. When experts are used, there are usually two, instead of one.  In litigation, you have two attorneys doing things that are done by a single, less-expensive expert in Collaborative cases.  Collaborative Divorces utilize resources much more efficiently than litigation generally does.

If you are about to start up a divorce, you should carefully consider what process to use.  As you are gathering information, be sure to talk with a trained Collaborative attorney who can discuss all your process options and help you decide which is best for your situation.  Good luck!



Friday, April 1, 2016

Why Some People Put Off Starting a Collaborative Divorce



By now, you may have figured out your marriage is not going to last. The questions are when and how the divorce will take place.

Some people, when faced with that situation, put off deciding.  Others will explore their options, but become paralyzed because there are too many choices.  Still others make quick decisions, but based on emotion or bad information.

Sometimes, people make an initial decision to file for divorce and then put off getting started.  If you find yourself in that position, let me address some misconceptions about Collaborative Divorce that may be stalling your momentum.

Here are some mistaken ideas people have about the Collaborative process, with an explanation about the reality for each.

1. They believe they need everything agreed before they start the process.  Wrong.  The Collaborative Divorce process is a method used to resolve disputes.  It's a great way to create solutions for sharing time with the kids or dividing the assets.  Collaborative is used to help the parties make decisions.

2. The parties don't get along. That's not unusual since they're getting divorced, but it doesn't keep them from working in the Collaborative process.  Having the neutral mental health professional work with both parties helps them learn to listen and communicate better as well as generally behave better in joint meetings.  Unless there are serious threats of violence, most behavior issues can be managed with two attorneys working with the therapist to keep order. It doesn't get better in court.

3.  They don't have all the information.  Actually, one of the early steps in the Collaborative Divorce process is to gather information.  The neutral financial professional takes charge of identifying, gathering, organizing and evaluating the financial information for the parties.  It is a very efficient process and it's great to have an extra set of expert eyes looking at the financial records.

4. Someone doesn't understand the process.  Any attorney trained in Collaborative Law will be happy to explain the process to a prospective client.  Some will do a free consultation on the process choices available to clients for divorce.  If you or your spouse  doesn't understand how Collaborative Law works, read some more in this Blog or on my web site, or you can check Collaborativedivorce.com.

5.   Some people don't think they need Collaborative lawyers because they can agree on everything on their own.  Sometimes it works, but more often, problems develop.  After all, if they could agree on everything, they wouldn't be getting a divorce.  What happens frequently is that one party decides how things should be done and then insists that the spouse go along with it.  That's not a good idea for the "non-deciding" spouse.  Collaborative Law gives a much better opportunity for both parties to participate in working out the agreement. A one-sided agreement won't work well in the long run.

If you find yourself thinking any of the statements above, please talk with a Collaborative Law attorney and help yourself.  You'll appreciate it afterwards.


Tuesday, March 15, 2016

Reality Testing -- What Do You Expect from a Collaborative Divorce?


If you are thinking about using Collaborative Law to get a divorce, it's a good idea to be aware of what you are expecting and it would be very helpful to your attorney if you discussed your expectations for the process. 

Do you have great expectations about Collaborative Divorce?  Are you expecting any of the following?

1. It should be an easy experience.  "Easy" is a little like "fair" -- it's a subjective term and everyone sees it a little differently.  In general, you should keep in mind that this is still a divorce, with lots of emotions.  You are un-doing years of marriage and many decisions made over the years.  Divorce is rarely "easy", no matter which process is used.

2. It should be quick.  Again, "quick" or fast is relative.  No divorce with significant children's issues or substantial property can be quick.  There's a lot at stake and we all have to be careful to make sure the best results are obtained by everyone.

3.  It should be painless.  Again, this is a divorce.  Divorces are rarely painless.  We do have an advantage in Collaborative Divorces because we use a neutral therapist and a neutral financial who help the process run better and with less conflict than many litigated divorces.  There's bound to be some pain in ending the marriage, but it will generally be much less painful, just not quite painless.

4.  It should be cheap.  In a similar vein, a Collaborative Divorce is probably less expensive than  many or most litigated cases, but it can still cost a substantial amount.  The more complicated the
issues, the more meetings and preparation are required.  That also means the cost increases.  Keep in mind that complicated cases are definitely more expensive in litigation. Collaborative may not be cheap, but it's a wise expense.

5.  You should get everything you want.  That never happens, regardless of the process.  However, in Collaborative Divorces, we do make an effort to focus on what both sides want and need.  We do try to obtain as much of those results as possible. We probably come closer to getting what you want than would happen if we just left everything up to a Judge.

6. The lawyers will handle everything for you.  Not true.  We help you determine your goals and needs, and we help you prepare for meetings and discussions. We do some background work with the other professionals.  But, the parties have a major role throughout the process and they speak up directly in our meetings.  This is not a passive process for the clients. The result is that the parties have much more influence on the final outcome of the case.

7.  You should come out of the divorce with the same standard of living that you experienced while married.  That's not likely in most cases.  We usually still have the same size pie to be divided now into two households, rather than supporting just one.  We have to be realistic.  Fortunately, the neutral financial expert normally helps both parties plan their budgets for their post-divorce lives.  That usually helps reduce the impact on day-to-day living.

So why use Collaborative?  As you can see, Collaborative Divorce may not be exactly what you expect.  Still, people are choosing the process because it is very private, they have more control over the outcome, they can create unusual provisions, it's less stressful and they can maintain civil relationships with the co-parent of their children. 

Bottom Line with Collaborative Divorce:  You can get a good result if you are patient and put in the effort.