Friday, February 15, 2008

7 Ways Collaborative Law Helps Kids

Collaborative Law is presented as being a kinder and gentler way to get divorced or resolve other family legal matters. Attorneys like being able to help people through family transitions in a more positive and productive manner. Clients who have used Collaborative Law almost always sing its praises for helping to create better solutions and allowing them to control the outcome. In addition to all those factors, Collaborative Law also helps children in a number of ways that don't get mentioned as much, but which are, in reality, very important and beneficial. Consider the following 7 ways that Collaborative Law especially helps children.

1. Collaborative Law teaches parents better communication skills. Most parents don't naturally use "I" statements. In Collaborative cases, the parents are taught to make careful word choices before speaking. They learn to avoid saying "you" and instead to make statements about themselves ("I felt angry/confused when Mike didn't get home on time", instead of "You made me mad when you didn't bring Mike home on time.") Such subtle differences from word choice can make a huge difference. There is also a great emphasis on listening skills and being respectful to the other spouse. Actually, a lot of the communication skills would be great things to learn during a marriage.

2. Parents model good behavior. Even with the divorce going on, parents are able to function well and minimize fighting. By having a series of civilized negotiating meetings, the parties show their children that the parents can still act like adults, even when they disagree on some vital topics. Children learn from their parents they don't have to lose their temper or throw a fit to get their way; they learn how to disagree nicely.

3. Parents can improve their parenting skills. In many cases involving children, a neutral child expert is brought in help the parties be aware of a wide range of possibilities. The parents can polish up their skills or learn new ways to work with children. The child expert can help the parties come up with new solutions consistent their underlying goals and needs.

4. Brainstorming leads to better decisions and plans. Spending time generating multiple possible solutions can lead to completely new ideas or lead to creative possibilities. Even silly ideas may change into great ideas with a small adjustment. Following the stage of generating multiple options, the parties spend time analyzing the effectiveness and practicality of each option, instead of shooting them down as they are originally brought up. Eventually, what's left is one or more great ideas that will work to help the parties meet their needs.

5. Parents get along better, which reduces long-term stress on children. It is undisputable that divorce is often very stressful on the children. When the parents get along with each other and cooperate in finding solutions, the children do not get as upset as they do in confrontational divorces. And that's not even mentioning how bad it gets when children are put in the middle of custody or visitation fights.

6. Kids can maintain good relationships with both parents and don't have to choose sides. Children benefit from having close, loving relationships with both parents. Usually, each parent brings some unique value to the children, so the children really lose out if one parent becomes distant or uninvolved because that parent can't get along with the other parent.

7. Collaborative Law is a better use of the money for the family. The parents don't waste their resources. They cooperate and share information with each other instead of going through a largely wasteful "Discovery" process used in litigation. They use one neutral expert to handle specific tasks, instead of having two -- one for each side -- in litigation. They also skip expensive and unnecessary actions, such as ordering a Social Study, psychological evaluations and bringing in battling experts to testify.

Collaborative Law clearly is beneficial for parents and children. The benefits for children have been under-publicized, but, in the long run, may be the most important value of the process.

Tuesday, February 12, 2008

How to Set Goals for Collaborative Cases

At the first of the year, many people spend time coming up with their New Year's Resolutions (lose weight, make more money, spend more time with the kids, etc.). They are setting goals for themselves for the upcoming year. If done with sufficient thoughtfulness, the effort can be really beneficial. Weighing different choices, looking at the pros and cons, and making commitments to action are all important steps that theoretically can lead to a better life, if the resolutions are truly incorporated into your life. The Resolutions provide guidance and reinforcement your actions in trying to attain goals.

Collaborative Law also relies on goals to set the agenda for the process. Usually at the first joint meeting, the attorneys and any other professionals in the case help both parties clearly define their most important broad goals for their life. They usually will consider both short-term and long-term goals. This is one of the most important steps in the process because it determines what the issues are and what the parties want and need to achieve.

Although we are all used to setting goals in some fashion, whether it be New Year's Resolutions or career goals or personal fitness goals or some other type, the parties to a family law matter often have trouble coming up with and defining the goals for their lives. To provide some guidance in the Collaborative Law context, here are some tips for setting goals:

1. Talk about broad, high-level goals that can encompass a number of actions. A good goal would be to ensure that the children have the financial ability to graduate from college, which opens up a discussion about various means of accomplishing it. A not-so-broad goal would be to have the father pay for college tuition for the kids. It sounds similar, but it really limits the options, and unnecessarily so. There could be other sources of funds and there may be other expenses to pay to enable a child to go to college. The broader statement of the goal provides a better opportunity to find solutions that are acceptable to both parties and benefit the child.

2. Make the goals clearly defined so that they are meaningful. For example, wanting to have adequate funds to pay for graduate school for one of the spouses is much easier to deal with than to want to have more time with the children or have a happier life. The last two are very broad goals, but aren't really very clear. The graduate school goal is not so narrow that it limits the options, but it also has enough detail that it can be understood and the parties can brainstorm solutions to provide adequate funding.

3. Make the goals achievable. The goals should be realistic, although not necessarily easy to accomplish. If you have a 16-year-old child, recognize that the child has a mind of her own and you may not be able to impose your will on her. Instead of having, as a goal, that the child would spend every other weekend with you, you might suggest working out a cooperative arrangement for parent and child to have a mutually acceptable schedule together. If there's not enough money already in a retirement account, you may not be able to provide adequate funds for retirement from that account in a short time period, but you might be able to discover other ways to deal with the retirement situation, so your goal could be something like providing the best use of the existing retirement assets to set up the maximum level of retirement account growth that would be safely possible.

4. Don't confuse the means or method for a goal. If you want to improve your relationship with a child, there are a number of ways to do so. Have regular visits at times when the child is willing and able to spend time. (For a younger child, you might get a standardized or regular schedule. For an older child, you may need to carve out shorter periods of time that don't interfere with school, studying, dates, sports, computer games with friends, etc.) Those are all means of accomplishing the goal of maintaining or improving a close relationship with a child.

5. Set important goals. Think about the things that are the most important to you or that would affect your health, safety or financial well-being. Deal with those topics and develop goals for them. Don't waste your time on unimportant or hypothetical or irrelevant goals. Don't let others tell you what "should" be your goals. Don't waste your time on impossible goals, although challenging yourself to stretch a little is appropriate and beneficial.

Following these steps will help you formulate meaningful goals which will help you successfully navigate the Collaborative process. (BTW: If your lawyer is a member of the Collaborative Law Institute of Texas, he or she should be able to give you a workbook that will also help you come up with your goals.) Good luck!

Saturday, February 9, 2008

Alimony is Not a 4-Letter Word

Often, one of the most emotional topics in a Collaborative case is alimony. One side often feels like she or he is entitled to it for a number of reasons, including the following, among others: because of having a long-term marriage, or because of health problems, or because of bleak job prospects, or because her or his spouse had been cheating on her or him, or because she or he supported the spouse through school and then the spouse wants a divorce just as the high income is about to start. Most often, alimony is sought by the wife, but there are occasional situations where the wife is the one better off financially and husband needs or wants alimony.

As strongly and emotionally as one spouse feels entitled to alimony, the other often resists alimony.

One of the advantages of using Collaborative Law is that we view alimony differently. We remove the sense of entitlement or revenge and we remove the stigma some may feel in paying it. We recognize that it is just a tool in helping one or both parties achieve their goals and meet their needs. Actually, it can be a tax planning tool because it is a deduction to the paying party.

If both parties will move beyond their initial feelings about the subject, they will discover that they can both benefit from using alimony. One way this can become crystal clear is to utilize a divorce financial planner who can explain the law and quantify the benefits to both parties. Using a trained financial planner in the case will normally benefit both parties. The planner will help the parties prepare personal budgets and project their needs and financial abilities well into the future. The planner may recommend using or not using alimony in a given case.

While alimony may not be needed or appropriate in all cases, the parties should remain open minded about it as a tool to help them reach their goals and achieve a complete resolution to their divorce.

Thursday, February 7, 2008

Can We Start in Litigation and Switch to Collaborative Law?

Occasionally, I will have a client or attorney ask me if we can start out a divorce case in litigation, have a temporary hearing and then switch over to Collaborative Law. This usually comes up where one party really wants to use Collaborative Law and the other isn't really sold on it. The "unsold" one will sometimes propose a compromise of using the process, but only after a temporary hearing, where that party expects to get his or her way at the expense of the other party.

I would say that there is nothing in the Texas law that forbids that change in approaches(though some Collaborative lawyers won't even consider doing it), but that I would advise against it. I haven't ever done a case that way and I don't think I would want to. Here are some some problems I would foresee:

1. The parties may like the peaceful approach of the Collaborative Law process, but there's a reduced chance of success because of a lack of a full commitment by at least one of the parties.

2. Taking this approach, the parties would give up the following advantages of the Collaborative process:

Control-- At a temporary hearing, control is given over to the Judge or the "standard" solutions. The parties are not fully able to negotiate equally.

Privacy--Court papers are public records and if there is an actual hearing, it is in open court.

Creativity--Temporary hearings normally involve reliance on standard solutions and orders instead of spending hours developing unique orders to meet the specific circumstances of the case.

Preserving important relationships--At a hearing or even in negotiations, parties can easily become angry about what is said and done.

Encouraging full input by both parties--Temporary hearings discourage full input by both parties. Judges and attorneys in temporary orders hearings or discussions mostly rely on the standard answers and pay little attention to the unique aspects of a case or the non-standard approaches that may be proposed by a party.

Interest-based negotiating--Temporary hearings generally involve positional bargaining and usually have very little to do with the parties' real needs or any unusual requests.

Protection from an overbearing or controling spouse--The parties most likely are at court because one party senses she or he has an advantage and wants to capitalize on it. Threats and demands are easily made in negotiations and there is neither a framework nor trained professionals to end and deal with such behavior, as would have been the case with the Collaborative approach.

3. Obviously, at least one party is not truly committed to Collaborative Law problem-solving or decision-making because they want to rely on arbitrary, standard solutions. Without the full commitment to Collaborative Law, there is little chance of success. If both parties understood and were committed to Collaborative Law, they would have been using it.

Caveat: I view the situation differently if both parties start out in litigation without an expectation of using Collaborative Law and then later both decide they want to try Collaborative because one or both may have changed attorneys or maybe they are tired of fighting. If they are both fully informed and committed to using the Collaborative process, I would consider making the change. Nothing in the law would prohibit it. I view that as a fundamentally different situation from one where a party obviously wants to gain the upper hand through litigation before agreeing to Collaborate on the remaining issues. This is something I would consider on a case-by-case basis.

If you are interested in using Collaborative Law at any step of your family law case process, I recommend that you immediately get in touch with your attorney and discuss whether it is advisable. Make sure you are dealing with an attorney who is at least fully trained (at least a 2 day training program) and preferably one who is experienced in Collaborative Law.

Monday, February 4, 2008

Free Online Summaries of Family Laws in All Fifty States

Even though the Collaborative process works best when the parties establish and focus on their own goals and interests rather than rely on arbitrary or statutory standards, some parties (and occasionally, an attorney) want to discuss how a court would handle a situation, such as child support or property division or visitation. For example, they may ask how much child support would be ordered based on a gross income of $9,000.00 per month. They often follow that by insisting that they will accept nothing less than the standard child support that a court would impose. That obviously limits options and doesn't necessarily help the parties achieve their goals.

Knowing how people often think, I prefer to use an approach that was suggested by Don Royall of Houston several years ago in a paper he presented at the Texas Advanced Family Law Seminar . He suggested that, instead of trying to not inform clients about Texas law, we should provide information about how Texas and various other states deal with the same situation. In other words, if a party wants information about the Texas child support scheme, s/he should get that information, but should also get information about how child support is calculated in Oklahoma, New Mexico, Illinois, California, Florida, Kentucky, New York, Arizona, etc. Providing that information from a variety of states encourages a party to be more creative and open to various solutions that are being used around the country. It helps a party understand that there is no single "correct" answer.

The following links were published in the South Carolina Family Law Blog and in the California Divorce Blawg to provide information for the parties to consider when they want to know about what state law provides:

The American Bar Association's Section of Family Law publishes charts in its Family Law Quarterly which summarize the basic laws in each state by topic, including custody, alimony and grounds for divorce. These charts are current as of November 2007, and they are useful as a quick reference to both attorneys and clients. Charts are available on the following subjects:

Alimony/Spousal Support Factors
Custody Criteria
Child Support Guidelines
Grounds for Divorce and Residency Requirements
Property Division
Third-Party Visitation
Appointment Laws in Adoption, Guardianship, and Parentage Cases
Download All Charts

Source: Posted on October 30, 2007 by J. Benjamin Stevens in the South Carolina Family Law Blog. Thanks to John Harding for his original article on this subject published at his California Divorce Blawg.

Friday, February 1, 2008

I'm Not Crazy -- Why Do We Need a Therapist?

Collaborative Law divorce cases in Texas more and more are relying on a single neutral mental health professional (MHP) and a single neutral financial professional (FP) to assist the attorneys and parties. Some people resist bringing in the MHPeither because they think the cost will be too great or because they don't think they will need the help. I'll deal with the cost issue in more detail in a separate post, but now I would like to discuss the value an MHP brings to the process.

Many parties to a divorce (or other Collaborative case) think they aren't "crazy", so they don't need to use a therapist. Ignoring, for now, the fact that most people are not really able to objectively diagnose themselves, craziness is not really the rationale for using an MHP in the process. The MHP does not do "therapy" with the parties or try to cure problems. The therapist generally works more as a "coach" for the parties to help them deal with a difficult and stressful situation and still be able to function effectively.

The following are my Top 5 Reasons for using a Mental Health Professional in a Collaborative case:

5. The MHP can help maintain order at meetings. At the first joint meeting, we normally agree on behavior guidelines for all to follow. While we all start out with the best of intentions, people sometimes forget the original agreements and slip into old patterns of arguing. That's when the MHP can step in and gently correct the behavior and help us get back on track. Even with parties who seemingly get along very well, it is easy for a session to degenerate to an argument unless there is expert help to intervene.

4. The MHP is much better than most attorneys at observing and interpreting body language and can help head off small problems before they get bigger. I had a case where the MHP became aware that one party's feelings were hurt by something that was said and the attorneys were completely unaware of it. The MHP was able to stop us so we could address the party's concerns and then get back to the discussion on finances. In another case, the MHP detected that one party was becoming nervous and upset. The MHP correctly figured out the party felt that her spouse was being domineering and she felt she was not being heard. We were able to provide reassurance by changing the way the discussion was proceeding. Because the MHP talks with the parties before and after the joint meetings, the MHP is alert to potential problems and can step in early to provide help.

3. One of the most beneficial things an MHP does is help keep both parties focused on the important goals for each of them. Even with good intentions, one or both parties will often get off subject and start discussing topics that don't really help them get to final agreements on the primary issues. An MHP can easily and nicely help the parties to remain focused on the important goals they identified at the outset.

2. The neutral perspective of the MHP is helpful in providing feedback to both parties. The MHP is perceived as impartial, so criticisms and suggestions are more easily received by the parties. Sometimes, the parties like to run ideas by the MHP for a reaction and analysis. Having a neutral expert is really helpful to the parties when discussing the merits of different ideas.

1. A divorce or other family law dispute really is a stressful situation and the MHP helps both parties deal with the stress. The MHP will usually meet with both parties before the first joint meeting and discuss how the process works as well as the background facts of the case. The MHP will usually talk with the parties after each joint meeting and normally attends all joint meetings. Each party gets well prepared and knows generally what to expect at the meetings. In addition, during meetings, the MHP is there to reassure both parties and maintain an atmosphere that is respectful and safe. The parties in a Collaborative divorce are not free from stress, but they are much better able to handle it and usually face smaller doses of it than they would in a traditional litigated divorce.

These are some of the main reasons why it is really helpful to have a mental health professional help with each Collaborative case. In the end, the parties have always (in my cases) appreciated the work of the MHP. In my experience, there is no doubt that an MHP increases the likelihood of a successful outcome for the case. You would almost be crazy to not want to use one. Seriously, you should discuss with your Collaborative attorney whether to bring an MHP into the case. If you do bring in one, I'm sure you'll see the benefit.