Sunday, January 1, 2017

How to Slowly Prepare for a Divorce

Having Time to Think and Plan
If you are not in an emergency situation or under pressure to make quick decisions, you can actually prepare for a divorce that can be fairly rational.  That's not to say that you and your spouse will not act irrationally from time to time.  That happens. For some people, there is an opportunity to research and plan so that going through a divorce is not just reacting to a sudden situation.

If you have time to prepare, here are some suggestions for how to start on a divorce.

1.  Do you have some money?  If not, you need to accumulate some or find a source to lend money to you.  Not only will you have to pay legal expenses, but you will have to find a way to financially create and support two households out of one.  There will be all kinds of new expenses.  Even though you may hate to do so, you may have to borrow money from family or friends or banks.  Keep your options open.  If someone offers to help, don't turn them down.

2.  Do you have a place to live?  You may be able to continue sharing a residence with your spouse while the divorce is pending, but you probably won't want to.  Or, your spouse may want to move out.  Can you afford to keep your current residence? Or, can you afford a new residence?

3.  Do you have a way to protect your children?  You may have a mature, cooperative relationship with the other parent, but you may not.  Hopefully, you can lay the groundwork to start a cooperative parenting relationship with your spouse. You don't want the kids to be a pawn between the adults in your divorce.

4.  Do you have a way to support yourself?  If you aren't working, you need to find a job or start updating your training.  If at all possible, you need to be financially independent.  If that's not realistic, at least find a job or upgrade your job or skills.

5.  Do you have a plan for the future?  You need to think ahead about starting over in every facet of your life.  Don't fall into just reacting to what's going on with a divorce.  Do some planning and get help setting up plans and goals.

6.  Have you discussed divorce with your spouse?  If you can, and it wouldn't spook your spouse into over-reacting, you should gently bring up the topic.  Chances are, your spouse has been considering it also.  On the other hand, springing a surprise on the other spouse can create a lot of anger, which means you have a more difficult and expensive divorce.

7.  Will the split be peaceful?  Some are and some aren't.  You need to try to figure that out.  That's useful information to share with your attorney since it will probably determine how the divorce starts.

What to do:  Research attorneys and find someone nearby who does Collaborative divorces.  Work with an experienced Collaborative attorney if you want to keep things private and peaceful.  Good luck.

Thursday, December 1, 2016

Comparison Shopping for Attorneys

When people are considering filing for divorce, they usually start to think about  hiring an attorney. Unless someone knows a family law attorney or has had experience with many attorneys, it may be hard to get started in choosing one. For the people who may feel a little lost, here are some tips on how to find a good lawyer to help you with your case.

You may want to consider the following when researching attorneys:

1. Experience.  You probably want someone who has handled cases similar to yours in the past.  While each case is different, and outcomes may vary from case to case, it does make a difference if the attorney has worked on the same or similar issues in the past.

2.  Chemistry.  This is something that you may or may not feel after talking and meeting with the prospective attorney.   If you are uncomfortable with or dislike the attorney, do yourself (and the attorney) a favor and walk away.  On the other hand, if the attorney listens well to you, speaks in language you understand and appears concerned about you, that might be a good attorney for you.

3.  Information Available.  Does the attorney provide information for you, either in person, on the web site or by sending information to you?  Can you learn about the process you are starting into?  You are probably better off if you have more information available so you can mentally and emotionally prepare for what's ahead.

4.  Location.  In Collaborative cases, location is not too big of an issue.  Usually, I recommend having an attorney in the same county.  There usually is not much reason for the attorney and client to meet frequently at the attorney's office during a case. When a Collaborative case starts up, the professionals and clients usually pick the most convenient place to meet and schedule meetings for that location.  That decision is affected by where all the professionals office and where the parties live and work.  Considering all that, the meeting locations usually can be convenient for all.

5.  Cost.  Unfortunately, no attorney can give a guarantee of the total cost of the process.  You can find out the attorney's hourly rate and retainer amount, as well as get a general idea of what the other professionals will likely need for retainers.  You should remember that experienced attorneys will probably be more efficient than less experienced ones, but there won't be a great deal of difference.  Overall, the differences in cost between attorneys will not be substantial.

There is more information available than ever before about attorneys through the internet and various means of advertising. Still the most important step in hiring an attorney is a face-to-face meeting to check each other out.

One Final Word:   Ask the attorney how many Collaborative cases he or she has has handled through completion.  If they have not done any, there is likely a problem.  If the attorney you are meeting with tries to talk you out of using Collaborative Law, that attorney is probably not a real Collaborative lawyer.  Some lawyers advertise that they do Collaborative Law, but they always talk prospective clients out of using the Collaborative process. If you are interested in a Collaborative divorce, you need to talk to a real Collaborative attorney.

Saturday, October 15, 2016

Is Collaborative Law Safe Without the Injunctions?

In almost every divorce, Collaborative or litigated, there is mistrust between the parties.  Often, one or both parties feel vulnerable and at risk of being taken advantage of. Fortunately, Collaborative Divorces have safety features to protect the participants.

Here's how some parts of the Collaborative process provide extra protection.

"Code of Conduct"
In divorce litigation, one of the first steps normally taken is to get a temporary restraining order (TRO) issued and schedule a hearing for a temporary injunction that would continue in place until the final divorce is granted.  In some counties in Texas, there are "standing orders" that are automatic mutual temporary injunctions that apply immediately to both parties when the divorce is filed.

Regardless of which way the orders come into effect, there are restraints on the parties financially and socially that go into effect very quickly in most cases.  That is not necessarily the case with Collaborative cases, which concerns some people.

To address those concerns, in Texas, the Collaborative community has created a standard Participation Agreement that is signed in every case which has similar language limiting what the parties can do after they sign up to use Collaborative Law for their divorce. In Collaborative Divorces, the "Code of Conduct" attached to the Participation Agreement provides protection and rules to manage financial and other matters while the divorce is pending, and it becomes effective at the very start of the case when everyone signs the Participation Agreement.

Extra Set of Eyes
In most Collaborative Divorces, a neutral Financial Professional (FP) works with the parties to gather, organize and interpret the financial data for the married couple.  The FP is trained in divorce law and financial analysis and planning.  A major job of the FP is to help the parties gather the relevant financial records and organize them into a spreadsheet that is used by everyone.  The FP normally looks at tax returns and financial statements to help determine what the assets and liabilities are and what their values are. 

In a litigated divorce, there is no neutral financial expert playing that role. The Court relies on the parties to produce the financial data, which sometimes results in incomplete or misleading information. 

In Collaborative cases, the FP is an extra set of expert eyes for both parties helping to gather and check the information provided.  That saves a lot of money by focusing on the most relevant information and avoiding duplication and overlap. If any additional information is needed, the FP will request it immediately.  If there are any questions about the financial information, the FP takes the lead in getting clarification or additional information.

Obligation to Correct Mistakes
In litigated divorces, if a party makes a mistake, there's often no obligation for the other party to bring it to their attention or to correct it. 

In sharp contrast, in Collaborative Divorces, if a party or professional discovers a mistake, there is an obligation to bring it to everyone's attention and correct it. That makes Collaborative a much safer process for the parties because they are less likely to be disadvantaged by a mistake.

Unique Provisions Improve Safety for the Parties
Because of these provisions, the Collaborative process has proven to be a safe alternative to litigation.  A temporary injunction is no magic shield that can prevent all misbehavior.  With the Collaborative Divorce provisions, there are more weapons to fight misbehavior and dishonesty, so the process is certainly worth serious consideration.

Saturday, October 1, 2016

Why Should You Try Collaborative Law?

If you are facing a divorce and you are trying to decide how to proceed, you might be interested to know some of the advantages of Collaborative Law.  See if any of these appeal to you.  If so, you should consult with an experienced Collaborative lawyer and discuss whether the process could work to your benefit.  Here are some topics to discuss with an attorney.

  • Privacy.  In litigation, you have a lot of pleadings filed that are public records and hearings held in open courts.  In Collaborative Law, the process is handled by having a series of short, private meetings (not at the Courthouse).  The work is conducted quietly and privately.  When the agreement is finalized, there is a prove-up at the Courthouse, but it is a minimal, routine appearance. Discussions are held in private and documents are kept private.
  • Control over the outcome.  Instead of having a Judge make interim and final decisions, the parties make their own decisions all along.
  • Professional assistance.  Each party has their own attorney and there are a neutral financial advisor and a neutral therapist to help the parties with financial issues and communication and children's issues.
  • Focus on important issues.  At the outset, the parties express their personal goals, needs and interests and then the process focuses on achieving  what each party wants.  Both parties can get their needs met most of the time. 
  • Both parties are benefited.  By focusing on what's important for both parties, both become satisfied.
  • Civilized approach.  Collaborative trades in the experiences of trials, testimony, depositions and formal discovery for short meetings that follow an agenda and focus on the important issues that benefit both parties.  We do not participation in the typical "beat down" of many litigated cases. The parties are on their best behavior and the neutral therapist ensures that they behave and function well in the process. It is a much less stressful process.
  • Improve communications.  One of the side benefits of the process is that the parties usually learn better listening and communication skills with the help of the therapist and we don't just divide everything in two.
  • Creative solutions.  In Collaborative cases, we are open to any proposals. We do not automatically default to the guidelines for child support or possession schedules, for example.  We are free to invent new approaches as long as they help the parties meet their needs.
  • Can protect assets.  We have great flexibility to deal with assets and take actions to help the parties meet their needs.  Our negotiations are interest-based, rather than positional.  That means that we always focus on the underlying interests or needs of each party instead of starting with arbitrary positions so we can end up with an arbitrary result in the middle.  The middle may not be a good solution.
  • It can move as quickly or slowly as the parties want.  Actually, we move a quickly as the slower party wants to go, but the difference is that we are not bound by an arbitrary court schedule imposed by the Judge who rarely considered the circumstances of the parties. 
 If you think any of these advantages of Collaborative Law appeal to you, meet with a trained Collaborative lawyer who can help you decide if your case would be appropriate.

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.