Friday, July 25, 2008

Why Can't We Start Negotiating at the 1st Meeting?

It's not unusual for one or both of the parties in a family law case to be very anxious from the outset to finish the case as rapidly as possible. They are undeterred by the 60-day waiting period provided by state law for a divorce, and they don't really care if the other party isn't ready to move as quickly. Aside from those issues, it generally is not possible to cover everything that is needed at the first meeting and then fit in negotiations in a 1 1/2 to 2 hour meeting.

Often, the parties don't see the need to establish a foundation for the process to work for them. The foundation includes several parts. Various documents and procedures are carefully reviewed by all parties to make sure there is understanding and agreement. Any questions about the process and any doubts about whether to use it need to be resolved. We have found that if we skim over, or skip, discussions of the documents and procedures, the case is much more likely later to develop major problems. It is very helpful for everyone to review and commit to the process and to understand how it works.

There is a "Roadmap" which needs to be followed, and it includes the following elements:
1. Determine the goals for the parties.
2. Assess the facts of the case. Gather all relevant information and put it in useable form.
3. Identify what issues need to be resolved and brainstorm possible solutions. In the brainstorming stage, there's no discussion of the merits of the proposals, they're just listed.
4. Evaluate the possible solutions. Figure out what might work and which ones won't.
5. Negotiate to an agreement that meets the goals of both parties.
It is important to follow each step in order and to not skip over some steps.

At the initial joint meeting, after reviewing and approving the documents and participation agreement, the parties work on their goals. After that, the parties can deal with any brief, urgent needs, although most such issues will be reserved for later meetings. By the time the goals are set and any urgent needs are briefly discussed, the time limit is usually reached. My experience is that the parties become less effective and often more argumentative if they stay in session for longer than two hours.

Once the foundation is set in the first meeting, the parties will have an excellent chance for success with the process.

Tuesday, July 15, 2008

Why Do We Spend Time Writing Our Goals?

Some people are just impatient and some wonder why we set goals when most people going through divorces don't spend time doing it. The answer is that we need a target to focus on. Collaborative Law is interest-based, which means that negotiations take into consideration the goals, needs and interests of each party. An agreement is not to be based on standard formulas or guidelines. We really want to know what is important to the parties in the case. We want to meet their specific needs instead of just handing them a piece of paper granting the divorce which is just based on standard solutions or what the judge decided. Setting goals helps us know what we need to accomplish and helps the parties decide what's really important for them. It might seem easier to not invest the time in coming up with the goals for each party, but we use the goals to create solutions that are meaningful and valuable. It turns out to be time well spent!

Tuesday, July 1, 2008

Top 10 Reasons Why Doctors Prefer Collaborative Law

Over the past few years, I have noticed that a number of physicians facing divorce have become fans of Collaborative Law as the best process for them and their families. Many doctors (or their spouses) have researched and discovered the process on the Internet. After I discuss the possibilities with them, doctors and their spouses almost always are enthusiastic about trying the process, even if they hadn't heard about it before. Here are some of the reasons why it is appealing for physician divorces.
  • Privacy and control. In contrast to how litigated divorces proceed, Collaborative divorces permit a private process where the parties control the timing and outcome. Meetings are conducted privately and decisions are made by the parties in joint meetings where both sides are encouraged to participate and ultimately make their own decisions. Parties don't waste time at the courthouse and don't have to fit their schedules around the judge's availability.

  • Flexibility for kids' schedules. Not only are many doctors regularly on-call, but their schedules often change monthly. In addition, less senior doctors get their schedules moved around and they get the less desirable times to work and cover for others. All of that makes it hard or impossible for the traditional standard visitation schedule to work. The Collaborative Law process encourages the parties to be creative and come up with unique approaches for visitation challenges. In Collaborative cases, there is no assumption that the parents must follow the standard schedule.

  • Keeping a good relationship between both parents and children. One of the main reasons why Collaborative Law is popular is because it encourages and enables the parties to improve their communication and respectful behavior toward each other. We usually work with a communication specialist, who is a mental health professional (MHP). The MHP always helps make the process more productive and effective and less stressful. We often have the parents work separately with a child specialist to create a special plan for sharing time with the children. An MHP can help the parents focus on the essential issues and avoid emotional land mines that often interrupt unguided negotiations.

  • Enabling the parents to provide for their children for the long term. In Texas, child support generally ends when a child turns 18 and graduates from high school, whichever is later. State law does not provide for payment of college expenses or support through college. Nevertheless, many parents recognize that college is essential for children who want to have fulfilling careers. They also recognize the rapidly increasing cost of a college education. Since Collaborative Law does not impose limitations on what goals the parties may have, it is quite common for parents, in a Collaborative case, to set up plans to provide a college education and the necessary support for the children through college.

  • Reasonably determine the value of a medical practice. In a litigated divorce when a doctor owns an interest in a medical practice, it is normal for both sides to hire their own expert to put a value on the interest in the medical practice. In contrast, in a Collaborative Law case, the parties normally agree on one appraiser. That cuts the cost in half and also reduces the fighting over the values produced. The experts appreciate not having to testify in depositions and court (also saving the fee for those actions) and enjoy the freedom of neutrality. One of the most serious concerns of a medical professional is the uncertainty of future income. As was illustrated by the recent Congressional action in passing legislation and then having to override a veto, physicians' income is easily affected by factors out of their control. Dealing with federal law and insurance companies, the occasional effects of an economic downturn and the burden of malpractice insurance (even after tort reform), create problems that must be considered when valuing a practice.

  • Managing debt. Debt from a variety of sources can be a problem for physicians. Medical school is obviously expensive and many doctors start out with a heavy load of student loans. Buying into a practice can also be very expensive, as is starting up a new practice at any time in one's career. Overhead for a medical office is very high and it seems that a doctor has little control over how much or when s/he will be paid. Credit card debt, even for well-established physicians can be substantial. Using a financial professional (FP) in a Collaborative case makes it possible to create a plan to control and eventually eliminate debt. That is something that normally doesn't happen in a litigated divorce.

  • Consideration of tax consequences. In a Collaborative case, the FP works with both parties to analyze the tax consequences of various property division and support provisions. That provides the best opportunity for the parties to save on taxes. That normally doesn't happen in litigation.

  • Protecting and managing retirement funds. In a similar manner, the financial professional also helps the parties figure out the best way to divide and manage their retirement assets or may suggest creating new retirement funds. Both parties get the benefit of an expert who helps them set up an arrangement that is consistent with their goals and needs. That normally doesn't happen in a litigated divorce.

  • Dealing with complex and significant assets or investments. In Collaborative cases, the parties utilize an expert to analyze their assets and to help them determine the best allocation of so they can meet their goals and needs. In litigation, such assets are often divided arbitrarily and without analysis of the tax and other consequences of the actions. If there are substantial assets, the parties need to invest sufficient time, expertise and creativity to achieve a division that is beneficial to both parties.
  • Alimony. Many doctors have a knee-jerk reaction that alimony is totally unacceptable. Many doctors' wives automatically believe they should be entitled to alimony. On an emotional level, those are sometimes understandable opinions. On a financial level, however, alimony can often be used to significantly benefit both parties. The alimony needs to be carefully structured to comply with federal tax law, but that is done with the help of the financial professional. Alimony is not appropriate or beneficial in every case, but it should be viewed with an open mind as a possible solution that can actually help both parties, when properly utilized. The key is having the neutral financial professional who works in Collaborative Law cases.

When considering possible divorce actions, doctors have become much more aware of the benefits of the Collaborative Law process. If facing a potential divorce, they should seek out attorneys who have the special training required for Collaborative Law work. The process will not work in every case, but it is certainly advisable to request that a family law attorney discuss the possibility with the prospective party before anyone files for divorce. Clearly, there are many advantages to using the process in the appropriate case.