Friday, December 10, 2010

The Opportunity to Take Personal Responsibility in a Divorce


Society tends to value the situation where one party takes personal responsibility for his or her decisions and actions. That is true in business, politics and personal life.

However, when people start to go through a divorce, they sometimes tend to be less motivated to assume responsibility for their decisions. In many cases, they come to expect a judge to make the significant decisions. When that happens, it often impacts on the quality of the decisions and the parties' satisfaction with the court's rulings. It also sometimes lessens the "buy-in" or involvement of the parties. As a result, when things don't work out very well, the responsibility and blame land on the court. Instead of trying to remedy the situation, the parties will sometimes fall into the habit of thinking there's nothing they can do because they are bound by the court's decision, and that's often true.

If there's some interest in having the parties come up with their own solutions, there are four ways it can play out.
  • If both parties feel strong enough and want to take the responsibility, they can do so using Collaborative Law.
  • If one party wants to try Collaborative Law, but the other is uncertain about it, Collaborative may still work for them. The party who is wavering can be reassured by the fact that there would be two neutral professionals involved and the attorneys have a slightly different mission than they do in litigation cases. The spouse's attorney is not going to be cut-throat or try to make things difficult for you. Both attorneys will try unconventional means of getting to an agreement.
  • If one party definitely wants the judge to make the decisions, then there's no way to use Collaborative Law, and that's too bad.
  • If neither party really wants the responsibility for working out solutions, then they can't do Collaborative, and that's also too bad.
In the end, people facing family law issues must decide how they want decisions made. Do they want to make their own decisions, with the help of neutral experts, or do they want to turn over the decision-making process to a court where they will not have to create a solution, but where they may be very unsatisfied with the result. To participate or not to participate, that is the question. Do you want to take personal responsibility? If so, Collaborative Law may be the best approach for you.

Monday, November 15, 2010

How to Choose a Collaborative Lawyer


Unfortunately, Collaborative lawyers are not as common as family law attorneys. Not all family law attorneys are trained in Collaborative Law. Even worse, some attorneys who advertise themselves to be Collaborative lawyers are not fully trained in Collaborative Law.

So, if you want to use a Collaborative Law attorney, how can you find one and how do you find the best one for you? Here are three simple steps you can follow.

1. Check around for a referral. You know that often referrals are the best ways to find professionals or stores or other providers of goods or services. You can have some confidence in hiring someone if s/he has been recommended by someone you know and trust. Good sources for Collaborative attorney referrals would include friends, counselors and attorneys. Hopefully, someone will have had some experience with a Collaborative attorney.

2. Research on the Internet. You need to find someone who is experienced and qualified (trained). It's also good to work with someone in your home county for convenience and to minimize travel expense for you and others. Look at web sites to find out how long each attorney has done Collaborative Law and how much and how recent their training is. (It's really helpful to get some additional training every year to keep the skills up.) You can also research the background of any referred attorneys. In Texas, we have the Collaborative Law Institute of Texas, a statewide organization (www.collablawtexas.com), an international group, the International Academy of Collaborative Professionals (www.collaborativepractice.com), and local groups (there are many local groups, but as an example-- www.aboutcollaborativepractice.com). Those web sites and others list trained Collaborative lawyers.

3. Meet with some attorneys in person. Again, focus on experience and training. You can ask whether they have handled similar Collaborative cases and how some issues are often resolved. Keep in mind that most experienced attorneys will charge a consultation fee.

Important: The biggest benefit of meeting with a prospective attorney in person is that you can get a sense of whether there would be good chemistry. Your personality and objectives should be a comfortable match with the attorney's. You don't need identical personalities, but both of you should feel good about working together.

Good luck in your search to find a compatible attorney for your Collaborative case.



Friday, October 15, 2010

Dealing with Anger


Collaborative divorce is often described as a peaceful means of settling very difficult family issues. Just like in litigated cases in the court system, Collaborative divorces sometimes experience displays of anger between the parties. That is unavoidable, and it may not be all bad.

Anger is a natural and very common aspect of divorce. Virtually everyone going through a divorce will experience periods of anger towards their spouse. Most people work through the anger at some point, but some have a great deal of trouble letting go of the anger.

Experience, and therapists, tell us that bottling up the feelings of anger can be unhealthy. That doesn't necessarily mean that we should encourage the parties in a Collaborative case to just share their immediate emotions without thinking about it.

On the other hand, the Collaborative Law process provides several ways to help manage the parties' emotions to lead to constructive results. Here are some that come into play:



Managing Emotions
  • In Texas, we usually use a neutral mental health professional (MHP) as a communication facilitator. In that role, the MHP works with each party to manage any feelings of anger. They help the parties learn useful skills that can benefit their other family, personal and business relationship. MHPs can work with parties to teach them how to maintain control so they don't immediately shift into "fight" mode. They learn how to listen better and how to chose words to express their feelings without escalating the conflict.
  • Another important key is helping the parties to stay focused on the "Roadmap to Resolution", the step-by-step process that we follow to reach an agreement. The Roadmap helps people take things a step at a time. Breaking the process into small, incremental steps helps the parties concentrate on useful and productive issues, avoiding the easy distractions into side issues that can come up.
  • If need be, we can also arrange individual therapy for one or both of the parties. Sometimes there are long-term issues that require extra help. Other times, counseling can lead to better understanding and better skills by the participants. There's almost no one who couldn't benefit by some counseling during a divorce, even in the Collaborative process.
  • How information is handled is a significant advantage over the methods used in litigation. The requirements that the parties cooperate with each other and share information help because they eliminate gamesmanship and skirmishes on side issues. Transparency and cooperation are the opposites of what normally happens in divorces in litigation. The openness of the process helps reduce stress and anger.
  • The Collaborative experience is enhanced by direct communications between the attorneys and parties. The fact that we have joint meetings, face-to-face, helps us avoid the common problem of distortions of communications as they pass from party to attorney, then attorney to attorney, and then attorney to party. Direct discussions with immediate responses and conclusions help minimize misunderstandings that can lead to anger. They also cut down on delay.
As effective a process as it usually is, Collaborative Law can't make anger disappear. In divorces and other family law matters, it's not unusual for the parties to get mad. Through the use of a variety of tools, however, Collaborative practice is better able to diffuse the anger and deal with the situation in ways that help preserve important family relationships. That's a major reason why many attorneys and parties are recommending Collaborative Law.

Wednesday, September 15, 2010

How Would You Describe Collaborative Law?


Some people who are about to go through a divorce (or other family law controversy) are able to take a little time and investigate what is ahead of them. Some focus on information about how to go to court and assume that it is the only alternative. Others try to imagine how they would like to deal with the legal issues and then look around to find out if that is possible. Of the former group, some get lucky and find out about various alternatives. Others get ensnared in the legal system without knowing that there are various approaches that can be used, depending on the circumstances of the case.

For those who approach the investigation with an open mind and some curiosity, here are some descriptive terms that can lead to consideration of Collaborative Law as the preferred option.


  • Civilized. Having peaceful discussions, assisted by trained professionals, can be a much more effective means to reach a mutually agreeable solution than going to court and hurling charges at each other.
  • Friendly. While not all Collaborative parties remain friendly, there is certainly a better chance that it will happen in the environment of joint meetings, especially when a trained, neutral therapist is working on the case.
  • Private. Instead of filing charges and making demands in public documents and testifying in an open courtroom, Collaborative cases provide a private venue where the parties talk and work in the privacy of their attorneys' or other professionals' offices.
  • Maintaining control over the process. In a Collaborative case, the parties determine the issues and schedule. In litigation, there are often court-imposed deadlines and schedules.
  • Making your own decisions. Collaborative case depend on the parties to ultimately reach their own decisions instead of turning the issues over to a judge who often knows little about the case.
  • Saving money. While it cannot be said that Collaborative Law is cheap, it is true that the process saves money in several ways by, among other reasons: using joint, neutral experts; avoiding the tedious and expensive written discovery process; and not having to wait for judges and others at the courthouse, as often happens.
  • Less stressful. In Texas, we usually hire a neutral therapist to work with both parties and assist them in communicating more effectively, as well as managing stress. In addition, not facing the courtroom and trials (or hearings) is a great stress reliever.
  • Use of neutral experts. Collaborative attorneys normally hire joint, neutral experts for financial issues, appraisals, psychological issues and other matters.That produces greater confidence in their advise and avoids a battle of experts that often happens in litigation cases.
  • Cooperation. The Collaborative process depends on cooperation and the attorneys work to educate and screen prospective clients before starting the process to make sure they will be cooperative.
  • Face-to-face discussions. Instead to turning issues over to a judge or having discussions filtered through the attorneys, Collaborative cases progress by having the parties and their attorneys (and usually the mental health professional) have direct discussions.
  • Full disclosure. Although non-Collaboratively trained people sometimes doubt it, the process does provide for full disclosure of all relevant information. Requested information is frequently withheld in litigated cases, and Collaborative cases ultimately have the same safeguards as litigation cases. But Collaborative cases also have an additional layer of protection built in with the work of the neutral financial professional (FP) who reviews and evaluates the financial information provided. The FP will request additional information whenever he or she notices something is missing. That protection is not normally present in a litigated case.
  • Customized. Instead of relying on standard formulas for child support or property division or standard schedules for visitation, Collaborative cases encourage the parties to think outside the box and come up with creative new solutions.
  • Voluntary. If both parties agree to try Collaborative Law, they can do so. If either one doesn't want to do it, then they won't. It can't be forced on anyone.
People facing legal action in family law matters should research their options and make an informed decision about how to best proceed. One way to do so is to do an Internet search using the above terms along with "divorce" or "child support" or "child custody" or other such issue. It would also be wise to meet with a trained, active Collaborative lawyer to fully consider whether Collaborative Law would be appropriate for their situation.


Sunday, August 1, 2010

Can We Switch from Litigation to Collaborative Law?


Sometimes, a Collaborative-trained lawyer will file a family law case and start it as a regular litigation matter. After a little work has been done on it, the other side may hire a Collaborative attorney and want to convert the case into a Collaborative case. Some people question whether that is possible. The short answer is "Yes", we can switch processes in mid-stream. Another relevant question, however, is whether that is advisable.

Initially, the change is fairly easy to accomplish mechanically. Just like in any other case, the parties would need to commit to the Collaborative process, including the attorney withdrawal provision, and sign a formal participation agreement. The parties would then file (in Texas) the notice of Collaborative proceeding with the court.

Why would you want to do this? For any and all of the reasons often discussed: having a less-stressful environment, letting the parties control the timing and outcome of the process, privacy, the opportunity for creative solutions, etc.

A slightly more difficult question is when you should make the change. The best answer is probably as early as possible, before damage is done by tactics, testimony and other means. Switching early leaves more options open.

One approach which is a very bad idea (in my opinion), is to postpone the switch until some temporary orders are entered using the traditional litigation approach. An attorney who proposes that is clearly not fully convinced of the value and success of the Collaborative process. Such an approach limits options and poisons the relationship between the parties. It would make the Collaborative process much more difficult because the attorneys and parties get used to treating each other the way they do in litigation. It also necessarily includes decision making on important issues, financial and personal, without the benefit of having the neutral financial and communication specialists involved.

The difference between that approach and the decision to switch generally is that when both sides say they want to use Collaborative Law from the outset, but one side wants to get some initial orders made under the litigation approach, that one side is clearly undermining the Collaborative approach and expecting the court to favor them in some way that the other side would never agree to. Once a party is taken advantage of like that, it will be hard to be effective in Collaborative Law.

The Bottom Line: It's OK to switch from litigation to Collaborative Law, and it's not hard to do. But, the sooner the switch, the better.

Thursday, July 1, 2010

Facing a "Later in Life" Divorce -- Part I


As Baby Boomers reach retirement age, they not only face changes in their work life. Increasingly, they are facing changes in their home life. Having a long-term marriage doesn't necessarily mean that divorce is out of the question. Facing a divorce in your 50's, 60's or 70's involves some serious concerns that may appear to be of a greater magnitude than the same issues experienced by 20-something, 30-something or even 40-somethings.

Typical issues for older Americans facing divorce include such familiar topics as housing, employment, retirement, health insurance, children and debt management, among other things.
  • Can you afford to keep the house? Should you? Should you sell it to cash out?
  • If you have a job, how long can you expect to keep it? If you don't have a job, are you employable at your age?
  • Will retirement funds that might have been sufficient for one household be enough to support two households?
  • Do you have health insurance available?
  • Do you have children in college? Do your adult children live at home or still need financial support? Can your children help support you?
  • How much debt is there? Can you afford to pay it off? Is bankruptcy on the horizon?
If you, or your spouse, file for a traditional litigated divorce in Tarrant County, Texas, what can you expect? While each judge is a little different, here, you would probably see something like this:

1. The initial consideration is whether you have a job. If you have a job, the question becomes how far you can stretch your income. Often one spouse has been the primary breadwinner and the other spouse has provided a supplementary income that was much lower. If you are the lower-income spouse, you will be in for a difficult time. Texas courts can't provide much alimony by court order, although you may get your spouse to agree to pay alimony at a higher level or for a longer period of time. Usually, you can't expect to just live off the alimony.

If you don't have a job, and aren't at retirement age, at the time of separation, you will probably face pressure to get a job right away, even if you have been out of the workforce for a number of years or if you lack training for a good job.

2. One of the spouses can probably keep the house if he or she wants it and can afford it. Of course, it may be hard to afford it without a job. There may also be pressure from the other spouse to sell the house and split the cash, even if you couldn't qualify for a new mortgage.

3. The other financial issues revolve around whether there is enough cash available. If you are lucky and there's plenty of income and other assets, you may be able to divide the property and debts and still live comfortably.

On the other hand, if cash is in short supply, it won't get any better when you divorce.

In a litigated divorce, the basic approach is to encourage an unemployed spouse to get a job and then divide the assets and debts, usually in the neighborhood of 50-50. If there's a great disparity in income between the parties, a court may give a little more of the assets to the lower-income party, but that doesn't always help, especially if the main asset to be divided is a retirement account.

There's normally no mechanism to get education or job training or job counseling for an unemployed party. Basically, you're told to take this pile of cash and take care of yourself (assuming there is a pile of cash -- often it's more likely to be a pile of debts). There's no attempt to do financial planning in most divorces and no significant thought goes into property division other than determining a percentage for each side.

In many cases, going through a later in life divorce can be very traumatic and can end up with one or both parties in a worse situation financially and, sometimes, personally.

So, what can someone do?

One way to mitigate the effects and the experience of divorce for more mature people is to consider using Collaborative Law. In the next post, I will contrast how Collaborative Law can help manage the later in life divorce.

Tuesday, June 15, 2010

Is Collaborative Law Cheaper than Litigation?

This is one of the most common questions I hear. Some people have gotten the idea that Collaborative Law is cheaper than litigation. In fact, some attorneys tell people that it is a cheaper process. Unfortunately, we can't really determine that.

No Way to Compare

In some ways, I would like to think that Collaborative Law would be less expensive, but no one can really answer the question because there's no way to compare the processes. If you think about it, you can see that there can be no direct comparisons:
  • Each case is different from every other case, so you can't make meaningful comparisons between two different cases. While there could be two cases where the parents each need to work out arrangements for their three children, there will always be differences that affect the amount of time and effort the parties and attorneys must expend. Maybe the father wants primary custody in one case and the mother wants primary custody in the other case. Different work schedules or special needs of the children or parents would impact the cost of a case.
  • There's also no way to take one case and figure out its cost in Collaborative Law and then re-calculate it as a litigated case. There are always unplanned events during a case as the parties move toward resolution. Things would happen differently under each approach, so the parties might have to do more or less work in one system as compared to the other system. In other words, there could be multiple hearings or numerous discovery fights in a litigated case, and there could be extra meetings in a Collaborative case if new problems develop.
However, there are two questions which can be answered.

1. Is Collaborative Law cheap? I would say that it usually is not, but of course "cheap" is relative. Collaborative would be cheap if there weren't many meetings. In some case, it happens that way. Most of the really easy cases, from my experience, don't go into the Collaborative process. Instead, the parties work out all or most issues informally and then the attorneys help them finish up an agreement.

Since the easy cases settle out quickly (and cheaply), that leaves the more difficult cases to be resolved. By the nature of the cases, we usually have a full team of professionals and have multiple meetings. We can achieve good results, but it will not be cheap.

2. Is the Collaborative Law result worth the cost? From my perspective, yes. Here's why:
  • Consider what's at risk. Collaborative Law allows the parties to deal with personal issues in privacy. They get to be the ones to make their own decisions, instead of letting a stranger decide the details of their personal lives. Collaborative parties can work out unique, customized solutions to their problems, instead of following standard guidelines that may not make sense for them. They also work in a less-stressful environment and communicate and participate in a manner that helps preserve, and sometimes improve, their family relationships.
  • Consider the result attained. The parties are always focused on meeting their own goals and special needs. The process is efficient in dealing with the most important matters and making sure that both parties have input and the benefit of neutral experts as needed. In the end, the Collaborative parties create their own solutions targeting their most important goals, needs and interests. A plan is put in place only if both parties agree to the terms.
  • Consider the effects of maintaining good family relationships. There's a greater likelihood that the parties can continue to work things out without court intervention if they continue to either use the Collaborative team or use the skills they learned in the process. While it's common for parties in the litigation system to frequently go back to court several times until the youngest child turns 18 (and sometimes later), Collaborative parties tend to be more willing to talk civilly and compromise. In this case, you can truly say that talk is cheap -- cheaper than hiring lawyers and going to court.
To summarize, I can't compare systems and say that Collaborative Law is cheaper than litigation, I don't claim that Collaborative Law is cheap, but I would conclude that it is worth the cost.

Wednesday, June 2, 2010

How It Works -- Joint Collaborative Meetings


When they are trying to decide whether to try Collaborative Law, many people want to find out how the process works.
One of the most noticeable differences between litigation and Collaborative Law is that court is replaced by meetings at a private office. The meetings are usually at one of the attorneys' office, but sometimes are held at the office of the financial or communication specialist. Here are some typical elements of the process:

  • Each meeting is usually one and a half to two hours long. People get tired and are less effective and more stressed, if meetings go beyond two hours.
  • Most often, we schedule meetings about every two weeks, but we sometimes can meet more or less frequently if there is a need. In between the meetings, the parties may do "homework" and have meetings with the MHP or financial specialist.
  • The meetings are planned ahead of time by the professionals who prepare and follow a set agenda. It is important that surprises are minimized and that the meetings not veer off into discussions of topics that were unexpected. The agenda is often discussed at the end of the preceding meeting.
  • Where a mental health professional (MHP) is used, the MHP usually runs the meeting. That helps the atmosphere feel unbiased and the MHP is able to help the parties function at their most effective level, even when difficult topics are discussed.
  • We generally follow a standard "roadmap" which includes these steps: determine the goals for each party, gather information, determine what the issues are and generate options, evaluate the options and then negotiate to an agreement. We may cover only one step, or part of one step, at each meeting.
  • We have found it helpful for the attorneys to visit with the other professionals just before and just after a joint meeting to discuss how to handle issues and to evaluate how the meeting went.
  • The attorneys also usually meet or talk with the parties both just before and just after the joint meetings for preparation and feedback. Between joint meetings, the attorneys also talk with their clients as needed to prepare for meetings.
  • It may take several meetings to resolve some issues, and the parties have the freedom to take as much time as they want to fully explore possible solutions.
If you have questions that haven't been answered about the joint meetings, you should consult with a trained Collaborative professional who can answer any other questions about the process.

Wednesday, May 5, 2010

Improving Creativity

Working in Collaborative Law, one of the great joys of the process is creating new solutions to problems that the parties may have felt were impossible to resolve.

I recently ran across an article from Scientific American magazine that dealt with creativity and gave some encouraging ideas on how to increase creativity in people. You can read the article and you may get some ideas that will help some aspect of your life. As I read the article, I thought about how it could be applied in the Collaborative Law context. Here are some possible ways to increase creativity in Collaborative cases by temporarily changing your reality to work from a different point of view. (These are just my creations and are not based on science or even from suggestions in the article, but I invite you to take a look and have a little fun with it.)

  • Change some variables. On children's issues, you might try changing the number of children you are working with, or change the schedules that affect the children or each parent, or change locations where the parties may be, or change the financial status. For financial issues, you can change the assets under consideration, change the amounts available, change the needs, change locations, etc. If you modify some variables, create some solutions under the different set of facts, and that may generate new solutions that could be transformed to fit your situation. At the least, it should make both parties more open-minded and broaden the range of possible solutions.
  • Change the context or location. If you are in Texas, for example, try finding solutions the same parenting or financial issues that you have, but pretend you live in California or Minnesota or Kansas or New York City or somewhere else completely different. Again, the idea is to open up your brain to consider really different circumstances, which might help generate really different solutions.
  • Change the perspective. Put yourself in someone else's shoes. Reverse the parenting roles for a while. Try looking at the situation from a grandparent's perspective or from the point of view of a mutually respected friend. Consider how someone with more or less money or different job experiences or education might view the issues in property division. Be a third party who is trying to help someone else come up with ideas.
The point of all that isn't to waste time or to generate useless or irrelevant ideas. The point is to exercise and expand your brain, to make it more accepting of off-beat or unique ideas that might ordinarily be rejected or not even considered.

This is a technique that can be used in a case where the parties are having trouble solving problems and coming up with new ideas. It doesn't need to be utilized in the ordinary case where the parties work effectively together and are able to find acceptable solutions. In a difficult case, however, it's another option to be explored. If you have occasion to try this, please write in and let us know how it works.

Credit for the link to the article also goes to a tweet from Jonathan Jordan, a/k/a
MindfullyChange.

Friday, April 23, 2010

Can You Use Collaborative Law Without Trust?


A common concern many people have when considering using Collaborative Law is whether they can trust the other party. Some people think they can't or shouldn't use Collaborative if they can't trust the other side. To some extent that's true, but trust really exists on a continuum ranging from complete trust to no trust at all. Trust is not an absolute and it changes, to some extent, from issue to issue. Most of the time, parties have a trust level somewhere in between the two extremes. That means that they trust the other party some of the time, but not always.

For the cases where there's no trust at all, neither Collaborative nor litigation can guarantee a comfortable result. There will probably always be a suspicion that the other party lied, hid facts or misled. For the cases where there's some trust, but also some suspicion, the choice of process becomes a judgment call.

In reality, Collaborative Law and litigation rely on the same ultimate enforcement mechanism, which is having a court take action. In Collaborative Law, that would require the parties to change attorneys, which would cost both sides. In addition, each system has some additional means of ferreting out the truth.


Litigation.

  • Written discovery is often used to obtain documents, explanations and admissions about assets and other issues. That can be supplemented by oral depositions where direct questions are asked of witnesses (usually at least the parties) who are required to answer under oath.
  • Inventories . In divorces in Texas, we usually rely on sworn inventories and appraisements prepared by each side. In litigation, each party prepares his/her own inventory. Each inventory document usually has language saying that the party swears that all assets and liabilities have been correctly disclosed, to the best of the party's knowledge.
Collaboration.

In Collaborative Law cases, we don't use written discovery or depositions usually. Instead, we rely on a cooperative process with many layers of protection built in. These layers include the following, that don't occur in litigation.
  1. The Participation Agreement that is signed by everyone at the beginning of the process has a commitment by each party to be truthful. It also has many comments about the importance of honesty, transparency and cooperation. While there's no guarantee that every party will always comply, having the written explanation and the discussion at the signing probably enhances the chances for success.
  2. The roles of the attorneys and other professionals are different. Attorneys are required to make sure that both parties are operating under the Collaborative rules. All of the professionals are charged with making sure the process is honest and transparent.
  3. The neutral financial professional (FP) is an extra safeguard for both parties. The FP reviews and analyzes all the financial information for both parties and makes sure it is complete and accurate. That's an extra set of trained eyes reviewing everything.
  4. The neutral mental health professional (MHP) also helps make sure the parties are being open and honest. The MHP works with the attorneys to help manage the process and ensure cooperation by both parties.
  5. The financial professional usually prepares either a sworn inventory or a very detailed spread sheet to organize all the parties' financial information. The FP usually reviews the original financial documents to complete the inventory or spreadsheet.
  6. If necessary, the parties can sign a sworn statement that all relevant information has been provided.
Bottom Line: No system is perfect. There will always be people who try to lie or hide information or assets. There are at least as many ways to catch cheaters in a Collaborative case as in a litigated case, but there are more people watching normally to prevent cheating in a Collaborative case. From my experience, people in a Collaborative case take their agreement seriously and the professionals ensure that everything is done properly.

Regardless of the system, the ultimate remedies are the same whether the case is in Collaborative or litigation. People hide assets and lie all the time in litigated cases. There, an attorney can file a motion to enforce or to divide undisclosed assets or to take some other action to punish a dishonest party. If necessary, that can be done in a Collaborative case, after the attorneys withdraw. Normally, the person caught cheating is also required to pay attorney's fees.


Tuesday, April 13, 2010

Having Collaborative Success


Most people going through a divorce or dealing with another family law issue want to do what they can to have a good experience with the Collaborative Law procedure. While it's hard to anticipate all possible problems that can arise in a case, the parties can act in certain ways that will help avoid potential pot holes as they work toward an agreement. Here are some suggestions to keep in mind.

1. Be willing to follow the structure set out by the attorneys and other professionals. Many people want to jump ahead and immediately start working out agreements without following the preliminary steps of setting goals, gathering information and generating options. Years of experience and input from many different experts have lead to the current procedural steps that the professionals plan to follow. You will forfeit your chances of success if you won't follow the normal steps of the process.

2. Do what you agree to do. Keep your word. If you agree to provide information, attend a meeting, follow a certain schedule or anything else, please do what you said you would do. If you can't be trusted to keep your word, the process will fail.

3. Stick to the agenda. The professionals and the parties set the agendas for the meetings. It is important to follow the agenda. Surprises lead to upset feelings, a sense of insecurity and a loss of confidence in the process. Straying from the agenda also wastes time and money for the parties. There will be time to get to all the necessary issues. The order of progress is set by the professionals based on our experience in finding the most effective ways to deal with issues.

4. Don't go rogue. Follow the agreements that are made as we go along. Don't suddenly decide to start taking actions on your own. That causes a lack of trust and will lead to a termination of the process.

5. Be patient. It takes some time to progress through the "Road Map to Resolution" that we follow. We don't skip steps because each step adds a significant part of the foundation for future actions. It may seem like the process is moving slowly, but it is virtually always the case that litigation would take longer to get to a final resolution.

6. Be respectful of the the other party's needs. It will be hard to you to get what you want in the end if you are unwilling to give in some to what your spouse wants. Try putting yourself in your spouse's position to better understand what s/he wants and why. That should make it easier for you to agree to what your spouse is asking for or to help you find or create a viable alternative.

7. Speak up. At joint meetings, be sure that you speak up to share information, opinions and choices. If you have special concerns or valuable information, make sure you inform the other professionals when you meet with them separately. Any problems you are having can be more easily dealt with if you let others know about them.

If you will follow these suggestions, you can greatly improve the likelihood of success for you in the Collaborative Law process.

Wednesday, March 10, 2010

How it Works -- Putting a Team Together


Although some attorneys still work on Collaborative cases without a neutral mental health professional (MHP) and a neutral financial specialist (FP), most attorneys in North Texas routinely, and exclusively, insist that both neutrals be brought on board before the joint meetings start.

Putting together a team of professionals to work on a case usually involves the two attorneys meeting or having a phone conference to discuss which MHP and which FP they want to use. They end up with one or two or three candidates for each category and then find out who's available. The attorneys discuss who they have worked with before and try to determine if any special skill sets or experience are needed for the case.

For example, they may need to find someone who is strong on tax issues or financial planning or debt management. They may need an MHP who has worked as a parenting coordinator, or who has worked with special needs children or parents with certain emotional issues. The attorneys will try to find the most compatible professionals to work with the personalities and needs of the parties.


It is essential that the professionals be seen by all as being completely neutral, so they can not have worked with either party in the past. They likely would have worked with one or both of the attorneys previously, but that is disclosed and it's not an issue for their neutrality.

Once the attorneys have gotten commitments from the other professionals, all four join in a conference call to preview the case, discuss the potential issues and needs and then come up with an agenda for the first meeting.

Finding the right professionals is one of the most important steps in getting the Collaborative process started.

Sunday, February 28, 2010

Collaborative Prenuptial Agreements


Our good friend Sam Hasler from Indiana has a brief post in his blog today about using Collaborative Law as the process for creating a prenuptial agreement. His blog, "Sam Hasler's Indiana Divorce & Family Law Blog" is always a source for new ideas and good approaches for dealing important family issues. Here's what he wrote about prenuptial agreements and Collaborative Law:

"From
Family Law Week comes Collaborative prenuptial agreements find favour
"According to The Law Society’s Gazette, a rising number of clients contemplating marriage are asking for prenuptial agreements to be prepared using the collaborative law model. The report records a shift in attitude among clients who would prefer to adopt a more consensual approach to agreeing a pre-nuptial agreement rather than employ the more traditional, oppositional method of negotiation."


I have previously written about using Collaborative Law for prenuptial agreements for professional athletes and using it generally for prenuptials for anyone. Prenups are very often put off until the last minute before a wedding, which makes the process much more stressful and difficult. Sometimes weddings are cancelled or postponed because of intense negotiations that aren't resolved satisfactorily.


Here's why you should use Collaborative Law for prenuptial agreements:

1. The process fits the need. I am a strong advocate of using the Collaborative process for prenuptial agreements. Working out a prenuptial is almost like doing a divorce in advance. There must be a lot of disclosure, planning and problem solving. The parties need to be able to look into the future and make binding, very important decisions about their lives and financial well-being.

2. The (Texas) process utilizes a mental health professional. The negotiations often bring out the worst in people, if the issues aren't handled well. With Collaborative Law, we normally bring in a mental health professional to assist the parties to communicate effectively and deal with the stress, and that would be essential in this type of negotiation.

3. The (Texas) process utilizes a financial advisor for both parties. We also bring in a neutral financial advisor who can help each party understand the financial consequences of the terms under consideration. The financial advisor also helps evaluate the tax effects of various options. Another helpful element is having someone who can assist both parties with budgeting and projecting their needs and capabilities in the future.

4. There is greater assurance of transparency and the sharing of all relevant information. That is a fundamental element of Collaborative Law, so there would clearly be an emphasis on providing the needed information and openly discussing matters.

Using all the Collaborative professionals to prepare a prenuptial agreement will benefit everyone involved and help avoid the disasters of a failed agreement or an uninformed agreement. The Collaborative process would require that the parties start well before the wedding date, instead of waiting until the week of the wedding, which is what sometimes happens now. It should result in a better agreement, everyone feeling better about the process and a happier wedding.

Saturday, January 30, 2010

Get a Second Opinion on Using Collaborative Law if....


Choosing the right attorney is a critical step in using Collaborative Law to help you resolve a family law issue. In any kind of legal matter, you have to carefully select your legal advisor and advocate, but with Collaborative Law, extra care is necessary. Collaborative Law attorneys receive additional training so they can learn new skills and a new mental approach to handling cases. We call it a "paradigm shift". We realize that Collaborative Law requires a different orientation by the lawyer. It's not just a question of whether we can negotiate effectively. Our whole approach to a case is radically different and lawyers who haven't been to at least a 2-day basic training in Collaborative Law don't have a clue about what we are really doing or how we approach cases differently.

Unfortunately, some lawyers who are not trained will claim to be Collaborative lawyers. Some do it because they are genuinely interested in the process and have been persuaded of its value by things they have read or heard. Others, however, claim to be Collaborative and then work hard to talk any potential client out of using Collaborative Law. Sometimes they put their uneducated opinions on their web sites, where it is obvious that they are strongly biased against Collaborative Law even though they claim to practice it. Others wait until the prospective client visits them and then the attorney verbally attacks Collaborative Law in general or as it would work in their case.

How to evaluate an attorney for handling a Collaborative case.

If you are searching for a Collaborative lawyer to help you in your case and you run into a lawyer who tries to convince you that Collaborative Law wouldn't be appropriate or wouldn't work in your case, you should look into these questions:

  • Has the attorney had at least one 2-day basic training in Collaborative Law? Tip -- the more training the attorney has had, the better (for you). If the attorney hasn't been to a 2-day basic training, don't waste your time with him/her.
  • Has the attorney had any Collaborative training recently? Recent training is always good. Some attorneys went to a basic training years ago and have never worked on a Collaborative case. A lack of experience combined with outdated training results in bad advice for you.
  • How many Collaborative cases has the attorney handled? If there haven't been any and the attorney is trying to talk you out of using Collaborative Law, you should move on.
It is very true that not every case is a good candidate for Collaborative Law, but you need an unbiased, qualified attorney to help you decide if you should use Collaborative Law. If you meet with an attorney who tries to talk you out of using Collaborative Law, please do yourself a favor and get a second opinion from a qualified Collaborative Lawyer.


How do you find a good Collaborative lawyer? Get referrals from friends or lawyers and other professionals, and do research on the Internet. A good starting point is the list, with background information, on the CLI-Tx web site at www.collablawtexas.com. If you really want to try Collaborative Law (and you should!), don't take no for an answer from the first lawyer you meet with.

Friday, January 15, 2010

What Happens to the Family Business?


Sometimes, families facing a divorce have a successful family business which must be included in some fashion when a plan is agreed upon to divide the parties' assets. Because Collaborative Law encourages the parties to be creative when they decide how to divide their assets, there will usually be numerous possibilities to consider. In traditional litigation, the options are usually somewhat limited. Probably the two most common approaches: a value is put on the business and one party buys out the other, or they just sell the business. To have a buy-out, usually each party will hire his or her own expert to value the business and then they negotiate or have a hearing to determine the value.

A Collaborative case is different.

Setting Goals
The Collaborative approach can be radically different. One of the first steps in the process is to determine the goals for each party. The goals may include retaining an ownership interest in the business or might be a desire to exit the business. Instead of planning to arbitrarily split the value of the business, the parties are free to begin by stating their preference. The preference could be to share ownership and operation of the business, it could be to sell to someone else, or it could be some other choice they come up with. The key is to start by asking what the goals, needs and interests of the parties are, and then fashioning a plan around those objectives.

Neutral Expert
Another difference between Collaborative Law and litigation is that Collaborative normally uses a single, neutral expert, chosen by both parties, to place a value on the business if that value is important to their approach. That saves money for the parties and reduces the arguments between the sides.

Gathering Information
As the parties gather information during their Collaborative divorce, the attorneys will evaluate the facts to determine if there are any legal issues, such as possible separate property or possibly a reimbursement claim, that need addressing. In a Collaborative settlement, those issues aren't automatically major issues. Their importance depends on what the goals are for each side.

Creating Options
After the parties gather information, they will generate options. Dealing with a family business, the parties may consider a wide range of choices. They could include some of the following:
  • Continuing in business together, even after the divorce is final. Each might control certain aspects of the business.
  • One side buying out the other, either immediately or over time.
  • One party taking the business and the other party taking another valuable asset.
  • The parties could jointly sell the business.
  • They could dissolve and liquidate the business. Sometimes the components may be worth more than the intact business.
  • They could agree to change the format or the products of the business, or go from retail to wholesale, or vice versa.
  • They could divide the business or assets where there are multiple locations, such as a restaurant chain or several pieces of real estate.
And there could be other choices as well!

Conclusion
With expert financial and legal guidance, both parties can reach agreement on the best financial terms for themselves, consistent with their underlying goals. Collaborative Law provides the best chance of coming up with a win-win solution for both parties. Usually, couples don't continue to operate a business together after a divorce, but that is one of many options available with the Collaborative process. How ever they slice it, couples benefit by keeping control over the outcome of their family business.