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.

Tuesday, March 1, 2016

Is "Cooperative" Divorce Right for You?



Probably not, but let me explain why.

Two different approaches. If you have been researching Collaborative Divorce, you may have run across the term "cooperative divorce". Or, you may ask a lawyer about Collaborative Law and the lawyer starts suggesting cooperative divorce. While Collaborative Divorce is based on a statute in the Texas Family Code, cooperative divorce is not.  However, cooperative divorce is sometimes promoted by lawyers who either haven't been trained in Collaborative Law or who just haven't fully made the transition to Collaborative Law.

Main difference.The biggest difference between Collaborative and cooperative law is that in Collaborative Divorce, the attorneys must withdraw from representing the parties if the process breaks down and the parties head to court, while in cooperative law, the attorneys don't have to withdraw.  The Texas statute is clear that for a case to be operated under the Collaborative process, the withdrawal requirement is mandatory.  Without it, the process is not "Collaborative Law".

Reason for "cooperative". Probably the main reason why attorneys sometimes want to use the cooperative process, even if their client came in wanting a Collaborative Divorce, is  that they don't want to withdraw if the process fails.

Benefit of requiring withdrawal.  My experience is that the threat of withdrawal upon failure is one of the biggest reasons why the Collaborative process works.  If the discussions come to an apparent impasse, the parties will back up and try another approach rather than just stop and go to court.  The attorneys and other professionals don't want to lose business (and income) and the parties don't want the expense of hiring new counsel and getting them up to speed on the case.  There's also the loss of time for the transition that slows down the process.

Some other missing ingredients.The Texas Family Code provides some other benefits under Collaborative Law that are not available for cooperative divorces.
  • Confidentiality.  The meetings and discussions in a Collaborative case are confidential.  They are not in a cooperative divorce.
  • Privacy.  Cooperative divorce has no privacy protection.  Collaborative Divorce does.
  • Discovery.  There's no requirement that information be shared freely in cooperative divorces.  In Collaborative cases, information is shared and is usually gathered and reviewed by a neutral expert.  That also doesn't happen in cooperative cases.
  • Mistakes.  There's no duty to correct mistakes in cooperative cases, but there is in Collaborative cases.
  • Scheduling.  The court still controls scheduling in cooperative cases.  It does not in Collaborative cases.  The independence in Collaborative cases gives the parties much more freedom to take the time they need and want to resolve the issues. 
There are other differences between the systems as well.

Is there a role for cooperative divorce?  Possibly, if the divorce is a very simple case, probably with no kids and little or no disagreements.

If there are complicated children or property issues that require a thoughtful and open approach, Collaborative Law is probably a better choice.

Monday, February 15, 2016

Misinformation About Collaborative Law



When people are considering whether to stay married or get divorced, they will often do research on what their options are.  Some people think the only choice is litigation, while others will dig a little deeper.  Unfortunately, they need to be careful where they dig.

If you are investigating your options, please spend time to look up information provided by experienced and active Collaborative lawyers.  I occasionally spend some time looking on the Internet to see what people are writing about Collaborative Law.  Sadly, there are many misstatements about different aspects of the process. The mistakes seem to always be on web sites by non-Collaborative lawyers who write a little about the topic, probably to show up in another area for search results. Generally, their conclusion is that Collaborative Law is not such a great process.

While I certainly wouldn't want an attorney to have to do a Collaborative case if he or she didn't want to, I do thing we should keep the facts straight when explaining our views to the general public.  Here are three common misconceptions that are presented about Collaborative Law.

1.  It just works for the small group of people getting divorced who get along well. Actually, while it works well in the easy cases,  it's also very helpful for people who don't get along well.

There are many reasons why people choose the Collaborative process.  They may value the privacy, or the power to make their own decisions, or the control over the scheduling, or the creativity permitted, or the assistance of a neutral financial professional or mental health professional.

People with those interests may not get along, but they see the value in the process and they see how the mental health professional keeps everyone working together effectively.

2.  If the Collaborative Law process breaks down, you can't use the documents and information that was gathered in the Collaborative case.  That's not true.  While  statements and communications are protected, the documents and agreements produced can be kept and used as the parties finish off the case in litigation.  The result:  emails and statements made at meetings are confidential and can't the used in litigation, but spreadsheets created and the underlying documents supporting them can be used.

That means that it's not a total loss, but still the parties have to slow down and go to court to finish what they were unable to agree upon. One of the main reasons why Collaborative Law usually works is that the parties don't want the expense of hiring new attorneys or the delay of waiting 30 days while everyone gets started again.

3.  The Collaborative rules remove the right to have a trial.  That's not true either.  If the process breaks down or one or both of the parties want to go to trial, the parties can have a trial, once they hire new attorneys.  In reality, trials are about the last resort for either side.  Most Judges will require the parties to attend mediation before they go to trial, and that will usually lead to settlement.  Very few people actually want to go to trial where they leave everything up to the Judge.  Most people prefer to decide for themselves how their finances and children will be handled.

There are other misstatements I see regularly when I look on the Internet, but these are some of the more frequent and relevant mistakes.

If you are seriously looking for information about your options, do yourself a favor and start by looking for information from an experienced Collaborative lawyer who actually handles Collaborative cases. 


Monday, February 1, 2016

Safe Confrontation in Collaborative Cases


Have you ever wanted to just tell off your spouse or someone else who made you angry? You may have done it from time to time, or you may have kept your feelings bottled up like many people do. Sometimes that's a good thing to do, but most often it's not handled very well and the problems escalate.

If you don't get to express yourself and address your concerns, the situation may just continue while your stress level rises.

One of the great benefits of Collaborative Law is the opportunity to learn skills to communicate better and to do so in a safe, controlled atmosphere.   Instead of just reacting and blurting out your feelings, you learn how to express yourself in a way that will be heard and respected. 

Here's what we do in Collaborative cases.

  • Attorneys meet and talk with their clients before and after joint meetings.  They can even pause a joint meeting and meet privately when a difficult issue comes up.  Attorneys can help their clients respond to the situation in a constructive way. As much as possible, sensitive topics are planned for.
  • Attorneys also meet with the other attorney and other professionals before and after joint meetings.  They can also take a time out and meet briefly during a joint meeting so they can coordinate how to deal safely with a difficult issue.
  • The neutral mental health professional (MHP) we normally use in Collaborative Law cases in North Texas works with the parties as needed on their communication skills.  The MHP also manages each joint meeting and pays close attention to the body language and mood of each of the participants.  I have had several meetings stopped by the MHP so immediate concerns about what was happening could be addressed.
  • There's an emphasis on both parties learning to listen better and use language more carefully.  Learning to listen before speaking is very helpful.  Also, everyone benefits from learning to choose one's words and thinking about what is being said and how it affects others.
  • Focus on the future.  We encourage the parties to not re-hash the past.  We don't need to get into assigning blame or pointing out fault for past problems.  Instead , we help the parties learn to be constructive in planning for the future.
In Collaborative cases, we don't want to suppress issues.  We do want to help the parties learn productive and safe ways to express themselves so that they can resolve problems that come up during the Collaborative process as well as  after the divorce.