Thursday, September 15, 2016

Will it Work?

When you hear about some new idea that someone urges you to try out, one of your first questions may be, "Will it Work?". We don't want to waste time and money on something that doesn't stand a chance of working.

It may not work.
Anyone telling you about Collaborative Law will have to admit that there is a chance that the process won't work in some cases.  Sometimes it's because of the parties involved, other times it's the whole context of how the matter is happening.  Many times it can be because of outside forces, such as pressure from family members, time constraints or work issues. It can also make a difference it you choose to work with experienced versus inexperienced professionals.

Failure is rare.
The down side is that if the process is unsuccessful, the professionals have to withdraw and the there's added costs for the parties in getting new attorneys.  The good news is that failure is rare. 

Here are some common circumstances which sometimes unnecessarily scare people away from using Collaborative Law.

1.  One or both parties are mad. Actually, that's not unusual.  These are divorces after all. When we work with a full team, including the neutral mental health professional, communication improves greatly. People end up working together much better because they are surrounded by trained professionals who help them learn better communication skills.  That's an extra benefit of using the Collaborative process.

2. One doesn't trust the other party.  Again, that's common when people get divorced.  Again, trust is managed and greatly improved with the involvement of the neutral mental health professional, the neutral financial professional and two lawyers, all watching over everything. Part of the Participation Agreement everyone signs at the outset is an agreement to be open and honest.  We all also agree to correct any mistakes anyone finds.  This is about the most protected people can be in a negotiating process.

3. Someone believes the other party can "out-negotiate" them.  That's not even an issue because of having the team working together. Plus, we negotiate differently.  We don't use car-buying tactics.  We approach it differently by getting both parties to tell us their real goals, interests and needs. The negotiations focus on meeting the goals for both parties, rather than creating a "win-lose" scenario in which only one party is satisfied.

If you have any of these concerns, please talk with your attorney.  If you are meeting with a trained, experienced Collaborative attorney, your questions will be answered and your concerns laid to rest. While these are common issues, you really should have no problem entering into the process under these circumstances.

Thursday, September 1, 2016

Why Do We All Meet in the Same Room? Part 2 -- Benefits

We recently discussed why having Collaborative meetings works when all the parties are in the room sitting around a common table.  It's a safe, effective and well-managed process.

This is in contrast to the typical litigation scenario where the attorneys speak for the clients or ask questions in court and the Judge makes rulings which may or may not actually help the parties work through this difficult process.

If you choose Collaborative Law, you will have the meetings in the same room, but there are a number of benefits from meeting directly together. Here are some to consider.

1.  The direct contact improves communication.  It's not filtered or interpreted by having the attorneys speak for you or against you.  You can speak for yourself, with support from your attorney and the other professionals.

2.  Everyone feels safe.  We don't wander off topic or allow ambushes.  We plan an agenda and stay with it.  If someone starts feeling anxious or upset, the Mental Health Professional (MHP) can step in and restore order.

3.  Both parties get heard.  A frequent complaint about Court is that one or both parties don't really get to say what they want to say in Court.  In Collaborative, the parties are encouraged to speak up.

4.  Collaborative is an efficient process.  You can get immediate answers and you can continue a discussion as long as is needed and then move on. You can directly address issues and get resolution.

5.  The process becomes real for everyone.  Direct participation, discussion and the ability to make decisions and agreements is in sharp contrast to litigation. There, technical legal issues sometime take over and dominate discussions, instead of having humans thinking and acting cooperatively to find their own solutions. In Collaborative cases, the parties are in control of their own outcomes.

If you are facing a divorce and are deciding how to proceed, please talk with a trained Collaborative lawyer who is experienced with Collaborative cases.  You can find out if Collaborative would be right for your case.

Monday, August 15, 2016

Why Do We All Meet in the Same Room?

One of the key elements of Collaborative Law is that we have meetings with both parties in the same room with both attorneys, plus the Mental Health Professional (MHP) and the Financial Professional (FP).  We encourage direct, respectful communication between the parties and the professionals.

Occasionally, some people are a little hesitant to commit to sitting next to, or even across the table from, the spouse they are splitting with.

This is another aspect of Collaborative Law that sounds difficult, but which normally works well and usually helps some wounds heal.

Why does it work?

1.  MHP: A big part of the MHP's role is to manage the discussions and help the two parties improve their communication skills so they can effectively participate in the process.  The MHP will redirect one or both parties, as needed, and can call a timeout if someone appears uncomfortable or some other problem shows up. Plus, the MHP discusses rules of conduct with the two parties to reinforce the expectations of their conduct.

2.  Attorneys:  In addition to the MHP, there are two specially-trained attorneys cooperating, helping lead the process and acting as role models for the parties.  The attorneys act very differently than they would in a litigated divorce. 

3.  FP:  Having the neutral FP also adds to the security and integrity of the process.  Perceptions of a power imbalance between the parties can change because the FP can control the gathering and review of financial records, making sure that everything is produced and accurate.  The FP also takes a lot of the emotion out of the financial discussions.

4.  Planning:  With the Collaborative process, we initially determine the goals and needs for each party, then have meetings that are planned out and which follow set agendas.  Minutes are kept and there are discussions before and after the joint meetings, so the professionals keep on top of any issues and make sure that we all stay on track and don't wander off to upsetting unscheduled topics.

If you are considering using Collaborative Law to work out a divorce, don't worry about being in the same room with your spouse, even if one or both of you are upset.  The process is set up with many safeguards to make sure everyone is comfortable and safe  working together. Please talk with your attorney about any concerns you may have.

Friday, July 15, 2016

Is Collaborative Law Appropriate for Our Divorce?

In my view, no case is too complicated for Collaborative Law.  In fact, the more complicated a case is, the better it is to use the Collaborative process instead of fighting and using a standardized approach in litigation.

The question of whether to try Collaborative usually comes up more in the context of some cases that don't have a lot of moving parts.  Simple cases, with limited issues, may not need the Collaborative process.

It can be  a real judgment call to decide whether to use Collaborative or just try to quickly finish an agreement on limited issues.

So, how do you know if your divorce is appropriate for Collaborative Law?

If there are no kids and very little property, an informal approach would probably work, as long as there are no major fights.

But, here are some issues that call for the Collaborative Law approach:

1.  You have a custody conflict.  If both parents start out saying they want primary custody, Collaborative would be very helpful.  There are many options available and Collaborative is certainly a better option than going through a court custody battle.

2. You need a special parenting plan for the kids.  This might be a unique visitation schedule or special time-sharing arrangements. This often comes up when one or both parents have weird or changing work schedules.

3. There are conflicts over expenses, activities or educational needs for the children.  Collaborative Law provides a flexible and creative way to work out agreements that benefit kids while being manageable for the parents.

4.  Post-divorce financial help is needed.  There may be a great disparity in income, education or health between the parties.  Alimony may be needed and help with education expenses for a spouse may also be needed. Working in Collaborative, the parties can find ways to provide needed support post-divorce in affordable, but beneficial ways for both parties.

5. There are special financial needs.  There may be bills to pay off, a house to be sold, a new house to be purchased right away or assets that are hard to divide.  Collaborative Law gives you the time and flexibility to come up with appropriate, customized solutions.

Collaborative Law is not for just the easy cases or ones with very few issues.  It works well for custody issues and complex property issues.  If you are facing a divorce, it is in your best interest to contact a trained Collaborative Law attorney for a consultation so you can decide if the process would work for you.

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!