Sunday, December 15, 2013

The Cost of a Collaborative Case: Is It Cheap? Part 2

There's an old joke about divorce that sometimes goes like this:

Q:  Was your divorce cheap?
A:  No, but it was worth it!

That joke could now apply to Collaborative divorces.  They are not cheap, but, if people must go through a divorce, this process is a much better way to do it.  At the same time, there are some ways to save some money.  Generally, the parties are better behaved and managed and cases are better resolved.

1.     The process allows the parties and attorneys to avoid expensive activities.  In difficult litigated cases, a lot of actions are instigated to wear down the other side.  There are often multiple hearings for temporary orders, clarification orders, modifications, enforcement and other reasons.  It becomes a war of attrition as one side beats up on the other, all the while costing both parties much more money.  Another means of that is using demanding or threatening letters between the attorneys.

       Since Collaborative Law doesn't allow the parties to go to court, that avenue is eliminated.  In addition, there is a lot more direct communication and dealing with the issues in Collaborative cases, instead of posturing.  Plus, the other professionals are closely involved and helping.  For example, if there are visitation problems, the mental health professional will meet with the parties, if needed, to help them resolve the issues.  They can also be addressed directly in joint meetings and there is a great deal more direct communication, even between meetings, among the attorneys and other professionals.

2.     There's better decision-making in Collaborative cases. There are several reasons why the Collaborative process is generally better than litigation.
  • The parties participate in all decisions.  In litigation, often the attorneys tend to make many of the decisions, standard guidelines are used or the issue is turned over to a judge to decide.  In Collaborative cases, the parties participate in discussions and no agreement is made unless everyone agrees.
  • When needed, neutral experts are readily brought in and the mental health professional and financial professional are normally always involved, so the parties can easily turn to experts in Collaborative cases.
  • There is a focus on the future, instead of assigning blame for past problems.  Looking ahead and not looking back saves time and avoids unproductive arguing over fault. It also allows the parties to move ahead without further damage to their relationship.
3.     Finally, there's a greater commitment to the terms of an agreement than there is to the terms of an order imposed by an outsider, such as a judge.  There's more buy-in when the parties participated in creating a plan, compromised with each other and committed to the final terms.  Even though parties should follow an order from a judge, they are going to feel better and usually be more willing to follow their own agreement which is probably slightly (but importantly) different from a judge's order.  That usually means there's more compliance and less fighting post divorce!

 As the old joke suggests, divorce is rarely cheap, but if it's done right, it can be worth it.  If you are facing this difficult time, you should look into using the Collaborative Law process.

Sunday, December 1, 2013

The Cost of a Collaborative Case: Is It Cheap? Part I

Some people become interested in Collaborative Law because they are looking for a cheap way to get a divorce.  They assume one lawyer can handle the process and that there will be no fighting as they come to agreements.  Unfortunately, Collaborative Law doesn't work that. There are always two lawyers and the parties often disagree on matters, but we keep the parties focused on the issues and are usually able to come to acceptable agreements even on difficult issues. Fortunately, Collaborative Law can still be a very cost-effective way to handle divorce and other family law matters.

Most of the time, when Collaborative Law is used, the parties can save money in various ways, including the following:

1.     The attorneys don't use unproductive and wasteful discovery methods.  In litigation, attorneys almost automatically use fairly standard, broad discovery requests.  In Texas, we typically send out 25 written questions (Interrogatories) to be answered, 20 to 60 or more specific Requests for Production of documents and records and a standard Request for Disclosure of basic information, and then we do Depositions. Attorneys throw out a broad net to capture as much information as possible and then spend time reviewing the results and piecing the facts together.

       In contrast, in a Collaborative case, we usually have  a neutral Financial Professional (FP) and a neutral Mental Health Professional (MHP) gathering specific information about the finances and the children's issues, respectively.   We don't use written discovery or do depositions.  The parties are given specific lists of documents to provide that deal with the relevant issues specific to their case. The FP and MHP direct the gathering of information and that saves money for the parties because the FP and MHP charge less per hour than the attorneys do, who do the work in litigated cases. The FP puts together a spreadsheet that captures the relevant financial information.

2.     For property valuations, we normally use one neutral expert in Collaborative cases.  In litigation, it is common for each party to have their own expert for appraisals.  In addition to paying for two experts, the parties often pay for depositions and court testimony of the experts, costs that are avoided in Collaborative Law cases.

3.     In Collaborative cases, we don't have expensive court hearings.  In contested  litigated cases, there are often multiple hearings.  In addition to having to go to court several times, the parties face waits and delays whenever they go.  Unfortunately, the courts are overcrowded and overbooked.  That explains why it often takes a 3-hour trip to the courthouse for a simple hearing -- a lot of the time is wasted in waiting.

       In Collaborative Law cases, we don't go to court, except for a prove-up at the end.  Instead we have a series of meetings, usually 1 1/2 to 2 hours each, to work on a pre-set agenda of topics.  When we get together, we are working.  Also, much of the preliminary work is done in smaller chunks of time with individual professionals.

       When people divorce, there are usually complicated, very important issues at stake.  There are no easy solutions for some problems, which means the parties may struggle as they work through them.  With the Financial Professional and Mental Health Professional helping the attorneys, the parties can normally explore the issues and reach acceptable solutions in a safe environment.

       While hard issues usually take a great deal of effort and compromise, Collaborative Law gives the parties the opportunity to be cost-effective, even if the process is not "cheap" or easy.

Friday, November 15, 2013

We Disagree Too Much to do Collaborative!

I recently heard this as a reason an attorney gave for not using Collaborative Law for a divorce.  Obviously the attorney was not really committed to using the Collaborative process to resolve disputes in divorces and other cases and I have to respectfully disagree.

1.  Litigation won't make the disagreements go away.  They just won't be resolved as well as they could have been in Collaborative. There will likely be more conflict.
  • Without lawyers trained in problem-solving through Collaboration, the parties will probably have attorneys who go into the traditional steps of conflict-enhancing litigation.  There will probably be much less cooperation between the attorneys as compared to Collaborative attorneys. 
  •  In addition, litigation doesn't provide for a therapist or a neutral financial advisor to help the parties create solutions and minimize conflict.
  • When the parties can't reach agreements, the issues will probably ultimately be decided, at least in part, by standard guidelines and the judge's own biases.
2.  There's really not "too many disagreements" to use Collaborative.  There are simply better tools to use than litigation provides to handle all the problems. As long as the parties are open, honest and committed to reaching an agreement, Collaborative can be effective.

3.  Every family law case has a lot of disagreements.  We are talking about dispute resolution processes.  There's no reason to limit it to the easiest cases.  The process is not easy.  It requires patience and dedication, but it is a flexible framework that can handle very difficult and unusual cases.  I have seen the Collaborative Law process successfully resolve the following difficult issues:
  • Adultery
  • Job loss
  • Alcohol abuse
  • Mental disorders
  • Conflicts over parenting styles
  • Alienation allegations
  • Custody fights
  • Long-term illnesses
  • Relocation
If an attorney or anyone else ever tells you that there are "too many disagreements" to use Collaborative Law, you need to get a second opinion from an experienced Collaborative lawyer.  Undoubtedly, the Collaborative lawyer will disagree with that assessment!

Friday, November 1, 2013

Why Do a Collaborative Divorce? Types of Cases

There are many different reasons why people may choose to use the Collaborative process for their divorce.  Aside from the advantages of the process, there are certain types of issues that could really benefit from the flexibility and privacy afforded by Collaborative law.  Here are some examples.

  • A child with special needs.  Courts usually try to do a little extra, but you are still generally turning over the decision-making to a judge who will try to make an order that is a slight variation from the normal, standard provisions.  In Collaborative, we can bring in a neutral expert to the process.  We would also have the mental health professional who can work with the neutral expert to help the parties come up with an appropriate order.
  • Parents with issues.  Unfortunately, the adults sometimes have problems with alcohol, drugs or anger, among other things.  Various addictions may require special help that might not be well dealt with in the court system, and in Collaborative cases, we can work at our own pace, in privacy, until the issues are under control. Again, we can bring in extra help, if needed.
  • Stay-at-home parents.  If one parent has been off the career track for a number of years, it may be very difficult and time consuming to find a new career and job. There needs to be some way to provide extra help for that transition.
  • Professionals.  Many doctors, lawyers, engineers, CPAs and others don't want their personal issues laid out in public documents.  Public figures, including politicians, are in the same situation. Collaborative divorce gives them the protection of a private process that works outside the court system until the divorce is final.
  • Too busy for court?  Some people have really busy or inconvenient schedules.  While all of us would like to think we are indispensable, there are some people whose absence at work really creates problems.  They need the ability to meet at non-traditional times (not at court at 9 a.m. or 1:30 p.m., for example).  Collaborative meetings can be convened at any time on any day when all the parties can get there.
  • Convenient meeting place.  The courthouse may not be the most convenient place to meet.  In Collaborative cases, we usually meet at the attorneys' offices, but I have had several cases where we met at the mental health professional's or the financial professional's office.
  • Need non-standard visitation or child support.  It is much easier to get creative with visitation or child support in Collaborative cases.  In litigation, the guidelines are almost always used.  In Collaboration, the guidelines are just an option and we usually consider several options.
If you are facing a divorce and any of the above situations apply to you, please look further into using Collaborative Law.  It will probably be your best avenue for meeting your needs.

Tuesday, October 15, 2013

What's the Role of the MHP in a Collaborative Divorce?

Most people think of therapists as "shrinks".  They do psychotherapy or psychological evaluations. 

In Texas Collaborative Law cases, we generally use a neutral therapist or mental health professional (MHP) to work with both parties.  The MHP does not do therapy for either party.  Instead, we rely on him/her to help in many other ways.

Here is a list of some of the ways MHPs help in Collaborative cases.

1.  Manage meetings as a neutral.

2.  Help the parties stay on their best behavior.

3.  Help the parties learn how to communicate better with each other.

4.  Enhance the listening skills for everyone.

5.  Make sure everyone is heard at joint meetings.

6.  Help the attorneys realize when a party is having a difficult session.

7.  Help the parties create a parenting plan.

8.  Add another perspective for the attorneys as the case progresses.

9.  Help the parties work on and refine their goals for the process.

10. Answer parenting questions and help parents decide how to talk with their children.

As you can see, the MHP has a major role in Collaborative cases.  As an attorney who worked in Collaborative Law before therapists were brought into the process, I would emphatically state that MHPs are essential to the success of the process.  We can get better results, with less stress and in a shorter time, when we involve a therapist from the beginning.  I always insist on that!

Sunday, September 1, 2013

Just the Facts: Starting Without Assumptions

It is probably human nature to face the unknown by making assumptions.  That can help a person prepare for new circumstances, decisions and consequences.  Sometimes the assumptions are helpful and sometimes they are detrimental.  Either way, making assumptions is an easy way to approach a new situation.

There are three areas where assumptions are commonly made when someone is facing a divorce.  Problems may result unless you withhold judgment and focus on facts.  Here are some examples.

  • Assumptions about the legal process.  Unless someone has recent, extensive experience in the legal system, there are usually a lot of mistaken ideas about how the legal process works.  That is especially true of the relatively new process of Collaborative Law.  Rather than listening to your friends, family and friends of friends, it is better to go see a Family Law attorney who has been trained in Collaborative Law.  Don't get an explanation of the process from someone who is not qualified to tell you about it.  A good Collaborative Lawyer will tell you how Collaborative could work in your case and how mediation or litigation might play out.
  • Assumptions about how your spouse will act.  While you need to be prepared for the worst, don't assume it will happen.  Likewise, don't assume everything will go absolutely smoothly.  Spend some time with your lawyer and maybe a counselor to try to figure out how to best deal with your spouse.  You might be pleasantly surprised by how your spouse reacts to a "nice" approach.
  • Assumptions about whether you will be satisfied with a particular approach.  Again, talk with a professional to find out your options and how they might affect you.  If you think you need a "pit bull" representing you, you should consider the increased cost and the damage to family relationships that usually result from that approach. If you don't think you should negotiate, consider the consequences of that course of action.  Talk with an experienced attorney who can tell you how such actions will impact you and your pocketbook.
The bottom line is that you are better off getting the facts from an experienced and well-trained attorney who can help you decide your best course of action.

Thursday, August 1, 2013

Restructuring the Family the Collaborative Way

In a typical litigated divorce in Texas, and probably most states, the Judge will impose a standard set of guidelines for most matters relating to the children.  In many of those cases, the resulting order doesn't exactly fit the needs or facts of the case.  Many times, there's a random standard possession schedule for the children, as well as a standard child support order.  Special needs due to work, geography, health, school or any other factors are often not considered.  The big advantage of that approach, "one size fits all", is that it's easy.

Unfortunately, easy isn't always good or appropriate.

What can be done using Collaborative Law?
In contrast, parties using the Collaborative Law process can create a plan for taking care of the children that really benefits the children and the parents.  Here are some things that can be done , as needed, because we customize terms of orders when we use Collaborative Law.

1.  Set up rules for dating for the parents, including how and when to introduce a new significant other to the children.  New relationships can be very stressful and unsettling for the children.

2.  Share parenting responsibility according to need, past experience, education, ability, interest and other factors for the parents and the children. Taking into account the strengths and weaknesses of each parent can yield a more practical and effective sharing of responsibilities.

3.  Make sure important things are paid for.  Plan ahead for needed expenditures, such as field trips, vacations, school events, sports, proms and other activities.

4.  Figure out how and when to coordinate activities and decision-making about activities.  Come up with a way to amicably communicate between the parents for future situations.

5.  Work out ways to resolve or avoid future disputes.  Get some tie-breakers, such as allowing a pediatrician to resolve medical issues or a teacher or counselor to resolve school or other issues.

6.  Cooperate to share time during the holidays, not using arbitrary schedules.Communicating in advance about wants and plans can help avoid holiday stress.

7.  Customize the regular scheduling and sharing of the children. Be creative and be willing to make changes.

8.  Plan and pay for college.  That includes the preliminary steps of visiting schools, preparing for college, applying and choosing a school, taking the child to school and getting them back home for holidays and summers, etc.  There's plenty of involvement for everyone.

9.  Plan for age-related future issues and new expenses for school, car, activities such as sports, music and  extra-curriculars.  Kids will be more expensive for new reasons as time goes by.  It helps to plan for that, as much as possible.

10. Model good behavior for your children.  Show them that parents can be respectful and cooperative even after a divorce.  Help them learn how to deal with difficult situations without resorting to bad behavior.  Show maturity.

If the parents are really concerned about the best interests of the children, Collaborative Law gives them the opportunity to take care of the kids in many different ways.  Parents should meet with a trained Collaborative lawyer to consider that process before they file for divorce.

Monday, July 1, 2013

Do You Want a Civilized Divorce?

Unfortunately, most divorces are somewhat acrimonious.  It's a rare divorce where the parties are rational and cooperative with each other.  There are many reasons for that and it's hard to change someone's attitude when they are starting a divorce.

Collaborative Law offers the choice of having a civilized divorce where the parties can be around each other and be treated respectfully.    In addition, the parties listen to each other's concerns and try to resolve matters by working together.  Most people can switch to that mode of cooperation, but it takes a certain framework and a team of trained professionals.

Why do some people not want to try to have a civilized divorce?  Here are some reasons.

1.  Some people are extremely self-centered.  They focus on themselves and don't try to consider what their children or spouse might want or need.  These people just can't understand or appreciate someone else's point of view.

2.  Some people are very angry.  Often, they are out to "win" and are willing to do whatever it takes to win. They don't care about damage to relationships (or they blame the collateral damage from the divorce on their spouse, and take no responsibility for themselves).  In their mind, they have been wronged and they want revenge, and a win.  There's no appeasing them.

3.  Short-term thinking is another problem.  Some people don't think ahead, even a short distance.  They are only concerned with the very immediate future and don't plan ahead or worry about how things will be later.

On the other hand, I like to think there are some pretty compelling reasons to try to be civilized, act rationally and to try to preserve relationships.  Consider these points:

1.  Would you like to be able to attend weddings and holiday events in the future and be comfortable with everyone there?  That seems like an attractive possibility.  It's much better than the alternative of a stressful and uncomfortable time seeing old "enemies".  It's much better to remain friends.

2.  Would you like a less-stressful process for divorce?  We can't eliminate all stress from divorce, but we can make it much easier for everyone to coexist and to treat each other respectfully.  We can make it much less horrible if you use the Collaborative process.

3.  Would you like to avoid the excessive costs of a battling divorce?  Working together through the Collaborative process will help you by allowing you use a single, neutral expert rather than both sides hiring separate experts.  You can also save money by not using the strategy of repeatedly attacking the other side in an effort to wear them down so they will give in to your unreasonable demands.  Instead of all that, Collaborative Law has you focusing on what's important for each party and working together to achieve those goals.  You don't waste time and money on extraneous battles fought for strategic reasons which don't really make resolution any more likely.

If you're not too self-centered or angry or hooked on short-term thinking, you should consider using Collaborative Law if you get involved in a divorce.  Consult with a trained Collaborative lawyer to decide if Collaborative would be a good fit for you.  Good luck!

Monday, June 17, 2013

3 Fallacies over Lunch

At lunch today, a very good friend and I started talking about Collaborative Law.  I have known him over 30 years and we often talk about law, divorce (he's had two) and what I do as a lawyer.  We have discussed Collaborative Law a number of times.  I learned today that I need to be a little clearer with others when I talk about how the process works.  I was shocked to hear statement after statement of misunderstandings from him.

Here are three fallacies that my friend told me about Collaborative Law.  He believed these were fundamentals of the process.

  • Husband and wife use the same attorney in a Collaborative case.  He was shocked when I explained that both parties must use different attorneys because there would be a conflict of interest in trying to represent opposing parties.  I actually hear this from a number of people who call in to make an appointment to see me for a possible Collaborative Law case.  In reality, both parties need separate attorneys so that each attorney can represent only one party and so that a party can have confidential communications with their attorney, as well as the undivided attention of that attorney.
  • Collaborative Law is only used when the case is agreeable.  Quite the contrary, I explained that Collaborative Law is a conflict resolution process.  There's no need for Collaborative if everything is already agreed.  Collaborative is well adapted for dealing with very difficult issues, such as custody, visitation, property division, alimony, etc. We have extra skilled hands with the neutral therapist and the neutral financial advisor who can give appropriate  suggestions on difficult issues.
  • You have to use litigation if the parties don't agree on everything at the outset.  No, Collaborative Law is a problem-solving process.  There's almost never a completely agreed divorce at the outset anyway.  If there are major disagreements, Collaborative may be the best way to resolve them.
If you are facing a divorce or other difficult family law issue, please contact a trained Collaborative lawyer and make an appointment to discuss whether Collaborative Law might be appropriate for your case.  Don't let any preconceived ideas prevent you from exploring that option!

Sunday, June 9, 2013

Choosing a Collaborative Lawyer: Why Training is Important

If you are trying to decide which Collaborative attorney to hire, you are probably looking at web sites and blogs to get information and to find out about the knowledge and experience of various attorneys.  There are many trained Collaborative Law attorneys to choose from in Tarrant County.  You do need to meet one or more in person to try to determine if the attorney's style fits well for you. 

Another factor to consider is the attorney's experience in continuing education.  Does the attorney regularly attend trainings to improve his or her Collaborative skills?  Here's why that's pretty important.

  • Collaborative Law techniques have changed over time and continue to change.  New ways of doing things are tried out and the changes can improve the outcome for everyone.  If the attorney doesn't attend significant training on a regular basis, the attorney will not have current skills and may not be as helpful as an updated attorney.
  • Forms and paperwork evolve.  Over the years, there have been significant changes in the paperwork used in the process.  In Texas, we have developed some of the best forms and procedures anywhere.  They are copied by Collaborative attorneys around the world.  We don't sit still and just keep using the same old forms.  We update them and share the information in trainings.  
  • Collaborative skills need constant reinforcement.  Collaborative practice is so different from litigation, the old standard approach, that it is necessary to regularly go back for more training to refresh and remind us about the best ways to work together.  Without attending regular trainings, it is easy to slip back into old, bad habits from litigation.  Clients will get a smoother process and better results with attorneys who believe in continually updating and improving their skills.
So, when you are shopping around for a Collaborative attorney, pay attention to whether the attorney frequently attends Collaborative training.  For bonus points, find out if the attorney also lectures about Collaborative Law.  You want to get a well qualified attorney who can work well with you.

Saturday, June 1, 2013

Can Collaborative Law Work for a Custody Case?

There is a common misconception that Collaborative Law will only work, or will work best, when the parties start out in "near agreement" with each other.  In other words, it works if the parties are very agreeable people and are close to a settlement.  Actually, Collaborative Law works well for major disputes, including alimony, property division and special needs, as well as custody and visitation.  Collaborative is a problem-solving process which is not limited or intended for just the easy cases.

In reality, Collaborative Law is excellent for tough issues, such as custody.  Here's why it works:

1.  Collaborative Law focuses on the underlying needs of both parties.  Even if both parties start out saying they want "custody", the professionals immediately ask questions such as what custody means to each party, what precisely each really wants and why they want that.  Often that digging will lead to alternatives that can accommodate the true needs of each party.

2.  Collaborative separates custody from finances.  In litigation, it is fairly common for one parent to go for custody as a strategy to win financial concessions.  It is not easy to sustain that insincere approach in a Collaborative case where there's a Mental Health Professional (MHP) and sometimes a Child Specialist.  Custody issues are managed by focusing on each parent's true interests and the best interests of the children.  There's no overlap with finances to give unfair leverage to one of the parties.

3.  In Collaborative cases, we utilize the MHP for better behavior and communication.  In litigation, the parties are free to act up and try to manipulate or bully or pressure each other.  It happens all the time.  In Collaboration, the MHP works with both parties to maintain a civil, respectful approach and to learn to listen and communicate better.  That's just not done in litigation.

4.  Collaborative Law cases (in Fort Worth/ Tarrant County) will also bring in a Child Specialist in some cases.  The Specialist is a neutral expert who helps the parties create plans for how they will share time and responsibilities for children.  They focus not just on their own desires, but also consider what is best for the children.  In litigation, it often just turns into a tug-of-war over the kids.

5.  Collaborative allows the parties to consider or create "non-guideline" solutions. In litigation, if the parties can't come to an agreement, the judge will usually impose guideline child support and guideline visitation.  Those standard solutions are pretty good, but they don't fit all situations.  When the parties can come up with pretty much any arrangement they want, they not only are more satisfied with the immediate results, but they tend to not fight as much in the future.

Not every case can be effectively handled by Collaborative Law, but custody cases can almost always benefit from the process. Don't write off the process yourself.  Check with a trained, active, experienced Collaborative lawyer to find out if it might work for you.  Before you get started, talk with a qualified attorney to see if Collaborative would be a good fit for your case.

Monday, May 27, 2013

Choosing Between Collaborative Law and Do-It-Yourself Forms

There has been a lot of interest in people doing divorces by using do-it-yourself forms.  It's obviously a way to save a lot of money.  It can also be a fast way to get a case completed, if everything goes well.

The DIY approach doesn't work well if the divorce is hotly contested.  In that case, at least one party will hire an attorney and that means that the other party needs to hire one.

There is a pretty big middle ground existing between the "everything is agreed" cases and the "many things are contested" cases.  For those cases, people can choose between  DIY or using lawyers.  For this post, I won't go into a discussion of Collaborative versus litigation.  Admittedly, I am biased in favor of Collaborative Law, but I will try to be fairly objective comparing Collaborative to using do-it-yourself forms.

1.  Using Collaborative Law will cost a lot more than DIY.  Naturally, using two lawyers and the other professionals will be expense that wouldn't occur if you just do your own forms.

2.  The forms may be good if the facts are simple and limited and the terms are agreed.  The Texas Supreme Court's forms are already being misused for cases that aren't meant to be covered.  The forms don't deal with many issues that are common in divorces.  In the right case, however, they could be a great fit.

3.  There are many circumstances in which forms will likely be a problem.  Here are some of them:
  • If you want customized visitation;
  • If you want non-standard child support;
  • If there's separate property;
  • If there are complex property issues, such as
    • a family business,
    • a professional practice,
    • retirement accounts,
    • stock options, 
    • reimbursement issues, or
    • deferred compensation, among  other things;
  • If there are tax issues;
  • If alimony is requested or needed;
  • If there's real estate; or 
  • If you want to make creative use of various kinds of insurance, among other things.
4.   Other documents may be needed.  If there's real estate, you may need a deed, deed of trust or a lien note.  There may need to be car title changes.  A qualified domestic relations order (QDRO) may be needed to divide up a retirement account.  There could be other documents needed as well.  They usually don't come with divorce forms.

5.  Using forms, you don't get legal guidance through the process.  You miss out on strategy, creative solutions to problems and tax considerations.  You are just on your own.

If you look at the comments above, you can see that they don't really have much effect on really simple cases.  If that's what you have, then maybe forms can work for you.  On the other hand, you may be missing something and may create major, expensive problems by using DIY forms.  If you have any doubts about whether the forms will work for you, have a consultation with a Collaborative attorney to find out if the Collaborative model would benefit you or if you might succeed on your own with forms.

Wednesday, May 22, 2013

Another Reason to Use Collaborative Law -- Easy, Free Parking!

I just heard an NPR news story about parking lots.  It was more interesting than I expected.  There were sound bites from Joni Mitchell's song, Big Yellow Taxi ("They Paved Paradise and Put up a Parking Lot") and a Seinfeld segment where they got lost in a parking garage looking for their car. The story was explaining the obvious -- people are always worried about where they are going to park when they drive somewhere.

It occurred to me that there's one more reason, that I've never heard anyone articulate, for using Collaborative Law to work through a Family Law case.  Easier parking! 

In litigation, the main action takes place downtown at a courthouse.  Parking is almost always a problem there.  In Fort Worth, we are lucky to have a parking garage next to the Family Law Court Building, but it often fills up and it's expensive.  To make things worse, there's a new civil courts building under construction across the street.  When it's finished, guess where those lawyers, staff, witnesses, jurors and litigants will park.  You might find parking on the street, but it's a 2-hour limit and how many court appearances only last 2 hours or less?  Not many.  So, a lot of people get parking tickets and that's a financial pain.

How does Collaborative Law contrast?  We agree to not go to court.  You don't have to park at the courthouse. We work things out in a series meetings at offices.   We usually meet at the attorneys' offices, but sometimes we meet at other convenient sites, including at the other professionals' offices.

In over 10 years of doing Collaborative cases, I've never had to pay for parking.

That's probably not enough reason by itself to choose Collaborative over litigation, but it's a nice benefit of the choice.

Thursday, May 16, 2013

Complicated Finances: When You Should Use Collaborative Law

Couples facing divorce after a long-term marriage often have serious concerns about how to deal with and protect their hard-earned assets.  There can be a variety of investments, business interests and employment benefits built up over the years.  In a litigated divorce, if the case reaches trial, a judge is likely to divide the assets in ways that may not benefit both parties.  Some assets might be liquidated and others split up.  People on both sides are usually unhappy with parts of a judge's rulings.  An alternative to turning over the decision-making to the judge is to use the Collaborative process.

Here are some types of issues that might be resolved better with Collaborative Law:

1.  Family owned business -- Instead of  just letting a judge arbitrarily award it to one party or the other, the parties can work together to come to an acceptable agreement on how to handle it.  That could include the possibility of everyone continuing to work in the business, which is more likely to be possible in a Collaborative approach which seeks to protect important family relationships.

2.  Need for alimony:  now, interim or later in life-- The need for transitional help is common in the aftermath of a long-term marriage.  That need may occur immediately, for a short term, as one spouse gets re-established or goes to school.  It could could be long-term or short term.  It could also be a bridge later in life as the spouse approaches or reaches retirement age.

3.  Retirement assets to be divided -- In court, judges are tempted to pick an arbitrary percentage and divide retirement accounts across the board, regardless of expected needs or the expected ability (or lack of ability) to replenish the accounts.  In Collaborative cases, the assets can be allocated to meet the needs of both parties and consider the future abilities to acquire new retirement benefits.

4.  Need to provide for college education for children -- In Texas, courts can't really provide for college education expenses unless the children have special needs.  Collaborative Law cases often make it a priority to take care of the children's education, both private school (elementary through high school) and college.

5.  One or two professional practices -- Most professionals don't want their private financial and personal matters exposed to the public.  They want to maintain their professional practices and support their families.  To minimize cost and disruption, Collaborative Law is a good choice.  Value can be shared and used to benefit all family members.  Too many litigated divorces involving professional practices really get ugly.

6.  Planning for long-term care for spouse or child -- Sometimes a spouse or a child will need long-term care.  Judges can provide for that to a limited degree.  Collaborative Law provides a better way to come to more comprehensive agreements to provide the needed help, and money isn't wasted on litigation expenses.

These are some of the matters that can be dealt with effectively for people who have complicated, difficult financial issues.  If any of these apply to you, or if you have other questions, make sure you talk with a trained, experienced Collaborative Lawyer before you decide how you will proceed with a divorce.  You need to figure out all your options.

Thursday, May 9, 2013

How to Negotiate in a Collaborative Law Case

For people starting out in Collaborative cases, their focus is usually on something like gathering information, wondering what to expect or worrying about whether their own needs can be met.  Something that isn't considered too often is now to prepare to negotiate in a Collaborative divorce case context.  Here are some suggestions to help address that oversight.

1.  Learn from the mental health professional (MHP).  You may have some solo time with the MHP and there will certainly be a number of occasions when you are in joint meetings with her or him.  The MHP is skilled in helping people learn to communicate.  Choosing your words carefully, thinking before you speak and learning to listen will all be things you will learn or be reminded of.

2.  Identify goals, needs and interests.  You will be encouraged to focus on the future, not the past, and to work on the important issues.  At the very beginning, you will be required to come up with a list of items that are important to you. These should be discussed with your attorney and then will be discussed at the first or second joint meeting.

3.  Pay attention and respect your spouse's needs.  This is sometimes difficult because spouses often disagree about what's important.  Still, listening to your spouse's positions and considering them can lead to better, more amicable solutions for both of you.

4.  Prepare before joint meetings.  Review and discuss the agenda items and your ideas with your attorney before each joint meeting.  Get advice from your attorney.  Gather any needed information before the meeting and share it with the professionals and attorneys.  Think about what you want to accomplish and consider how your spouse may respond.  Talk it all over with your attorney prior to the joint meeting.

5.  Stay within the lines.  Please don't try to save time and money by negotiating with your spouse one-on-one outside the joint meetings.  That almost always causes problems.  Remember, if you were able to sit down  and have rational discussions, you probably wouldn't be getting a divorce.

Bonus Tips:
  • Warn your attorney if you expect problems with any topics or information.  There may be some hot buttons for you or your spouse that need special treatment.
  • Ask for a short time out if a surprise or problem comes up in a meeting.  We don't like surprises and don't want either party feeling uncomfortable.
  • Listen before talking or acting.  That's basic!

Wednesday, May 1, 2013

The Other Costs of a Litigated Divorce

Collaborative lawyers are pretty good about explaining the options a person has in starting on a divorce. The old standard approach is litigation.  The main alternative is Collaborative Law.  Another approach, which is used by some people, is to represent themselves, which is risky.  Other posts go into more detail about the dangers of representing yourself.  For now, I would like to focus on the costs of litigation.

The most obvious cost of litigation is the attorneys' fees and other costs of a court battle.  Dueling experts, depositions, extensive discovery and attorney's fees for all that plus multiple hearings can be very expensive, but there are other costs that you may not have considered.

1.  Loss of control over the outcome.  In litigation, the parties completely lose control of the terms of the divorce when they turn over the decision-making to a judge.  Each side gets to make their own sales pitch for what they want, but the judge can choose one or the other or neither of the proposals.  Even if the parties negotiate along the way, they usually confine their discussions to options allowed under standard guidelines or procedures.

In Collaborative Law, the parties start talking from the beginning and set out their own goals and objectives from the first joint meeting.  They are free to be as creative as they want and they are the ones who decide on all the terms for themselves.

2.  Damage to relationships.  Where there are children involved, there is often unreasonable fighting in litigated cases.  The parties tend to approach things from a win-lose or all or nothing mentality.  In order to "win" custody or significant time with the kids, parents will often say terrible things about each other.  Both sides become angrier and it's hard to patch up the damaged relationships.

In Collaboration, the parties work with a neutral mental health professional (MHP) who helps the parties communicate better, including learning how to listen respectfully and effectively to each other, a skill that most people are not born with.  Also, the parties don't get into blaming each other in order to advance their own agenda.  Instead, they discover that they can both be winners and both can have great relationships with the children by cooperating with each other.

3.  Stress and anger.  Litigated divorces are frustrating and the parties are put into situations where they believe they are both competing to "win" the same thing, whether it is financial or child-related.  The process is almost always stressful and tiring.  Everyone will get mad at some point at the others because of what is said or done in the process, and the way people cope with that is by fighting back, usually escalating the battles.

Collaborative divorces can also be stressful, but are generally less stressful because the parties have a feeling of having more control over their destinies.  Also, we use the neutral MHP to help people constructively deal with the stresses they experience.  There is less anger in Collaborative cases because we work hard on being respectful and civil in all our actions and words in the process.

4.  Time.  A litigated divorce will usually take a year or more here in Tarrant County.  There are often multiple hearings, depositions and other discovery procedures, and months of waiting for a final trial date.  Most cases go to mediation before trial, but that is usually at least 6 to 9 months after the case is filed.

In Collaborative cases, the parties start talking and working together from the outset.  Although each case is different, they can be completed in 3 to 6 months unless there are a lot of complications.  If they need to take more time to work through things, however, the parties don't have to rush to finish on a court's timetable. The parties control their own time schedules.

5.  Loss of expert support.  In litigation, you are basically on your own.  Some people work with a counselor, but most don't (even though they probably should).  Few people in litigation have a financial advisor who helps them find the best financial solutions in a divorce.

In Collaborative divorces,  we normally use a neutral mental health professional who does not do counseling for the parties, but who helps the parties with communication skills and helps everyone behave well and work effectively with each other.  The MHP also is a great help for the attorneys and alerts us if someone is having a problem at a meeting or if there are some sensitive issues we need to prepare for.  We also rely on a neutral financial professional who gathers and organizes information and helps the parties understand the tax considerations in the issues discussed. 

If you are considering a divorce, or you are definitely facing one, think about these costs and talk to a trained Collaborative lawyer about your options.  Remember, if you go to a family lawyer to discuss Collaborative Law, and the lawyer works to talk you out of using Collaborative Law, go get a second opinion.  The first lawyer simply may not really know about Collaborative Law.

Tuesday, April 23, 2013

Can You Switch to Collaborative Law After You Start a Divorce?

The simple answer is "Yes"!  

Even if you started by using DIY forms and trying to do your own divorce, you can switch to Collaborative Law by getting Collaborative attorneys for both parties.

A divorce or other family law case can always be changed over from litigation to Collaborative Law at any time before a final order is signed.  That's true whether someone is trying to use some prepared forms without using attorneys or whether both sides have their own attorneys.

What you would need is for both parties to have their own Collaborative Law attorney.  Plus, there would probably need to be some re-orientation for the parties to adjust how they approach the case.  Focusing on needs and interests, rather than using arbitrary percentages or standard schedules, will require some adjustment.

How to get started?  The first requirement is for each party to have a Collaborative attorney.  That means that one or both parties might have to change attorneys.  It is very important to have a trained and experienced Collaborative Law lawyer.

Warning:  Some attorneys will try to get people in to discuss Collaborative Law and then actively discourage using it.  In reality, those attorneys don't do Collaborative cases.  If you go see an attorney who tries to talk you out of using Collaborative Law even though you think you would like to use it, please do yourself a favor and get a second opinion.

Monday, April 15, 2013

Is Collaborative Law Worth the Cost?

For people facing divorce, a common question is whether Collaborative cases are "cheaper than litigation".  While there is no way to compare a specific Collaborative case to an abstract idea of a litigated case, we can say that Collaborative Law will avoid a lot of the expense involved in litigation.

Attorneys will often talk about how the Collaborative process can save money for clients.  In most cases and in most ways, I believe that is true.  However, many people take an unjustified conclusion from that discussion even though we can't say what the cost would be.  They start to believe that Collaborative Law is a cheap process.  That conclusion is unwarranted and unsupportable because it is so subjective.  What is cheap to one person may be outrageously expensive to another.

Since we can't really answer whether Collaborative cases are cheaper, here's a better question.

Is Collaborative Law worth the cost?

1.  Consider what's at stake.  Family relationships and decisions about how to raise your children -- you can't put a price tag on that.  Most people would make those issues their priority.  Having expert help in reaching creative and unique decisions to meet your circumstances would be welcome by most everyone.

With a long-term marriage and substantial assets or business interests, you want to be sure that your money is well-spent finding solutions.  Many people who have accumulated real estate, investments and business interests need expert guidance to unravel or divide up the assets.  It is unrealistic to think that what may have been accumulated over many years pursuant to an evolving investment plan can be quickly and cheaply divided in an appropriate, beneficial and agreeable manner.

2.  Think about being cost-effective in gathering information.  It's very easy in litigation to spend a lot of money going through standard discovery steps that generate attorneys' and experts' fees without getting much information that is really essential for the decision-making on the financial issues.  In litigation, each side often has his/her own set of experts and the process amounts to both sides setting up a battle of experts.  In most cases, it makes better sense to use a single neutral expert to guide the parties in gathering, organizing and understanding information. In addition, if appraisals need to be done, or tax advice is needed, a neutral expert can also be hired for each of those issues. It's still cheaper to use one expert for each need rather than having each side hire their own

3.  How important is it for you to make the decisions on your finances?  For people who have successfully managed their own affairs and created wealth through their hard work, knowledge and experience, it is difficult to give up control over their finances.  Would you rather make your own careful decisions on dividing things up or let a judge who doesn't know or care about your family make arbitrary decisions on how to divide the assets?

In most cases, in my view, Collaborative Law is worth the cost.  It is a flexible process that allows you to just focus on what is important and necessary, rather than having the parties follow standardized steps that often result in far more work than is justified.  In cases without children and without substantial assets, Collaborative Law may not be necessary, but even then, it is still a much more civilized way to go through the process, and that may be priceless!

Tuesday, April 2, 2013

What Does a Collaborative Case Cost?

A question that everyone asks, or wants to ask, when considering Collaborative Law is "what does it cost?".  That's a natural and legitimate question.

The simple, but not-too-useful answer is:  somewhere between cheap and the cost of protracted litigation.  On top of that, cheap is not defined (it's relative, after all) and the sky (or maybe the extent of one's bank accounts or credit cards) is the limit  for protracted litigation cost.

Unfortunately, the answer is that we don't know in advance what a divorce case will cost.  Attorneys and other professionals normally charge by the hour and we can't tell in the future how many hours will be required.

Why can't we be more specific?  Because each case is different.   Some issues are usually harder to deal with than others.

Your case may involve one or more of the following issues and we rarely spend equal time on every issue.
      Post-divorce support
      Career training or retraining
      Health limitations
      Allocating investments between the parties
      Retirement planning
      Child care
      Ownership and management of a small business
      College expenses
      Unique visitation circumstances 
      Tax planning
      One parent moving away
      Mental health issues
      Keeping both parents involved with very active children
      A professional practice of one or both spouses
      Dealing with teenagers
      Dividing, sharing or allocating a family business

There are varying degrees of difficulty between issues and between cases.  We can't predict ahead of time how much time we will need to devote to each issue.  What will be clear is that your team of professionals will allocate their efforts in gathering information, identifying issues and creating solutions in the most efficient manner to deal with what's most important to you. 

You can get some specific information on what to expect in a Collaborative case by talking with a Collaborative attorney.  Be sure to explain what's important to you and what outcomes you would like to see.  That could give you useful information to help decide how to handle your case.

Friday, March 15, 2013

Is Collaborative Law Safe?

Yes.  Divorce is usually a difficult and stressful process.  There is a competition for scarce resources, i.e. money and assets.  The parents no longer have unlimited access to their own children.  It is often a very emotional experience which is sometimes heightened by one or both of the attorneys.  Domestic violence is something that all Collaborative attorneys are concerned about and watch for.  Given that the parties meet and work out agreements face-to-face, some people may wonder if Collaborative Practice is safe. 

While each case must be evaluated on its own merits and facts, here are some reasons why Collaborative Law is usually a very safe way to work out a divorce or other family law issue.

1.  Experience has shown that working with a therapist helps defuse tension.  In Tarrant County Collaborative cases, we normally bring in a therapist at the very beginning.  The neutral therapists we work with have been very effective helping to referee conflicts, teach better communication skills and be observant for possible problems.  If and when a problem arises, the therapist stops us and helps resolve the issue before it gets out of hand.

2.  The financial professionals we use are neutral and objective.  They do not take sides and they are viewed by the parties as working for both parties, not trying to gain an advantage for one spouse or the other.  That reduces tension.

3.  The professionals, including attorneys, are trained to be less abrasive, better communicators.  That's a major contrast to how some attorneys act in litigated cases.  Sometimes attorneys get to be a big part of the problem by being very obnoxious to the other party.  In Collaborative cases, all the professionals are very aware of how they are coming across to the other side and they do their best to help the process, not stir up anger.

4.  Collaborative Law allows the parties to avoid escalating tensions that arise from sending demanding letters and making threats back and forth.  Legally, there's no need for such behavior.  Discussions can proceed in a civilized manner, and progress can still be made.  In terms of outcome, keeping tensions as low as possible will make it easier to come to an agreement.

5.  In Collaborative cases, the parties don't go to court or testify until the divorce is "proved-up" at court at the end.  That means that there will be less stress, less conflict and less compulsion to be oppositional.  Instead of trying to "win" issues in a competition, the parties work together to come up with solutions for the needs of both parties.

6.  The parties aren't left to try to negotiate on their own.  In fact, that is discouraged strongly.  Experience has shown that the parties behave better when other people are around.  When there are meetings to discuss the facts, to analyze the records or to work on coming up with acceptable solutions, there will always be two or three or (sometimes) four professionals to help manage and direct the discussions.  That prevents the parties from falling back into their old patterns of arguing.

7.  The Collaborative professionals help the parties not waste time and money on unhelpful work.  In Collaborative cases, the parties can focus in on what they need to know to work out a settlement.  They don't go back and try to prove fault or assign blame.  They really move forward and focus on the future.  The gathering of information by itself is incredibly better focused than the way it is done in litigation.  Collaborative Practice is a much more efficient process for everyone.


Friday, March 1, 2013

Facing a Divorce Later in Life?

What happens when long-term marriages head to the divorce court?  It's not pretty for either party.

It has become noticeable that Baby Boomers and even older people are starting to experience a significant number of divorces.  Couples married for 20 to 40 years are getting divorced.  A long-term marriage does not automatically guarantee that it won't end in divorce.  Part of the cause may be a greater life span for people.  Maybe it used to be that divorce didn't come up for older couples because one or both partners died before they got too old.

Now, "gray divorce" is an event that more older people experience, even though most never thought it would come to that.  Consequently, they are unprepared for what is happening.  If you find yourself in that situation, consider the following actions to help you begin to think about how to respond.

1.  The first thing you need to do is hire an attorney.  After a long marriage, and given the health and other issues that can arise at an older age, you have a lot at stake.  You should not, even if you are a lawyer, try to represent yourself.  Even if you don't want the divorce, you need to be protected and assisted.  Don't try to do it on your own.  There are many complicated issues you will face and they will determine much of your future.  Hire an experienced attorney, one you are comfortable with and one who is a good listener.

2.  Consider using Collaborative Law.  After a long marriage, there can be a myriad of issues to resolve, from dealing with teen-age or adult children, starting over with a career, health insurance, retirement assets, what to do with the house, how to provide support to get a spouse on her or his feet, health issues and many other concerns.  Collaborative Law has the potential to allow the parties to come up with creative, unique settlement ideas that directly address their concerns.  Here in Tarrant County, we use a neutral financial professional to help with financial planning, budgeting and other issues, and we use a neutral therapist to help the parties figure out the best ways to resolve children- and family-issues.  You really don't need a cookie-cutter approach on the terms of divorce.  You need something to respond to your specific needs.  You should talk to a trained Collaborative attorney to see if  Collaborative  would benefit you.

3.  You need to financially plan for at least two stages:  interim and retirement.  Depending on your ages, you and your spouse may have anywhere from a few to many years before retirement.  Either way, you will need to consider how both parties will get by financially on an immediate basis and then to retirement.  It is very common for one party to have been a stay-at-home parent who remained out of the workforce for years.  That spouse will need help figuring out a career and getting started.  Afterwards, the retirement assets will need to be divided between the parties.  There's obviously a lot of financial planning to be done and Collaborative Law offers the best set-up to meet that need. 

4.  You should consider the effects of the divorce on all the family members.  After a long-term marriage, it will be hard on everyone, but especially the children.  Using the neutral therapist in a Collaborative context allows you expert help with the family issues.  Children can really be hurt by divorce, even if they are adults.  You should carefully plan out how to address the divorce before you start telling your children and other people.

5.  Each party should work with a counselor or life coach.  Any divorce can be difficult, but one after a long-term marriage can lead to a much more difficult transition.  Professional help is really warranted.  Don't try to do it on your own.

Hopefully, these points will give you some ideas on what to expect and some things you can do if you find yourself facing divorce after a long-term marriage. This post is mainly to identify some issues and to get your started. Be sure to get good professional help.  Good luck!

Friday, February 15, 2013

How to Pick a Collaborative Attorney

If you have decided that you want to use Collaborative Law for your divorce, you will need to hire a Collaborative attorney. That's not necessarily an easy step because not all attorneys are trained in Collaborative Law.  You want to make sure you start off with a trained, experienced Collaborative lawyer.

Here are some quick keys for how to find and hire a Collaborative attorney.

1.  Make sure the attorney is actually trained in Collaborative Law.  An attorney, and the other professionals involved, actually need to have attended at least a two-day "basic training".  Some attorneys will try to claim that they can handle the case without it, but they will not do a good job for you.  In addition, the attorney should regularly attend trainings to continually update their skills.  From my observations over more than 10 years of Collaborative work, it is clear that the practice has evolved and changed over the time.  Attorneys need to keep up with new ideas.

2.  If an attorney tries to talk you out of Collaborative Law right off the bat, get a second opinion.  Unfortunately, there seem to be a lot of "bait and switch" attorneys who advertise that they handle Collaborative cases even though they usually haven't been trained. If someone comes in and wants to use Collaborative Law, the attorney immediately starts telling them all the reasons why it would be inappropriate.  If you get that treatment, get a second opinion.

3.  Ask about the attorney's experience in Collaborative Law cases.  Ask how long they have done Collaborative work.  Ask them to tell you some stories about how they got some good outcomes from it.  Ask what they like about Collaborative Law.  An experienced attorney can easily answer those questions.  A bait and switch attorney can't.

4.  Location.  Generally, you need a local attorney, from the county where you reside.  If there aren't many Collaborative attorneys in your county, check for an adjacent county.  Don't worry about where the attorney's office is.  I've had cases where all the meetings were at my office, some where all the meetings were at the other attorney's office, some were all at a neutral site and some were at a financial professional's office.  The location is always set up for the convenience of the parties.

5.  Good chemistry.  This is the intangible.  Make sure you have a good feeling about the attorney.  Trust your gut on whether this is the right attorney for you.

If you follow through with these suggestions, you should end up with a good Collaborative lawyer and hopefully a more peaceful divorce experience.

Friday, February 1, 2013

Should You Collaborate or Litigate?

If you are thinking about filing for divorce, you are probably considering who to hire and how to proceed.  Since you are reading this, you are probably thinking about using Collaborative Law.  If you investigate, some attorneys and other people may try to talk you out of using Collaborative Law and may try to tell you some reasons why it is a bad idea.

The following are common issues raised in discussing using Collaborative Law as a process to resolve Family Law issues, especially divorce.  Although Collaborative Law may not be a good fit for everyone, here's why you should still consider using it, even when one or more of these circumstances is a consideration.

1.Disqualification.  A fundamental component of Collaborative Law is the requirement that the attorneys and neutral experts must withdraw if the Collaborative process breaks down.  Then both parties must hire new attorneys in order to take the case to court.  While this is a drastic requirement, it is also one of the main reasons why the process works.  The attorneys, the experts and and the parties all have incentives to stay in the process and not just quit and turn everything over to the judge.  That encourages everyone to keep trying and to look for alternatives.  And that usually leads to a successful conclusion.

2. Can't trust your spouse.  Lack of trust is common to some extent in almost every divorce.  With Collaborative Law, you actually have more sets of eyes watching and making sure things are complete and accurate.  While there are no guarantees that both parties will be honest, that is also true in litigation.  In Collaboration, you will normally have two neutral experts helping and both attorneys are committed to making sure there are no mistakes and no one is taken advantage of.  That's more protection than you normally have in litigation.

3. Cost.  While Collaborative Law is not cheap, it is relatively cost effective.  In Collaborative, you will not have the numerous court appearances that are common in litigation.  There will be several joint meetings with the attorneys and other neutrals, and several "off-line" meetings where you will meet with a financial specialist or a child specialist to gather information and sometimes start to generate options. Those meetings are more focused and productive than most court appearances. In Collaborative, you will also not do formal written discovery, which is very expensive.  You will gather specific information that has a purpose.  In litigation, a great volume of information is often sought and produced, but much of  the information often has no real role in the litigation.  Way more information is exchanged in litigation than is really needed, and that costs money.

4. Spouse is controlling.  That is a big problem in litigation.  It is a problem in Collaborative Law cases as well, but there is help.  The mental health professional works with both parties to neutralize the actions of a spouse who may try to be controlling.  The financial professional helps off-set the controlling spouse if he/she tries to unfairly control the flow of information about the finances.  In addition, both attorneys work to together to stop any controlling behavior on any issue.  That type of broad effort is effective and is not available in litigation.

5. Domestic violence.  This can be a problem in any family law issue.  Not every case is appropriate for Collaborative Law, but there is no automatic disqualification for domestic violence.  With a neutral mental health professional involved throughout the process, there is a better chance of dealing with the situation in a constructive and safe manner.  An additional therapist or coach can be used for one or both parties.  Meetings can be run with flexibility that allows changes of length or location or other adjustments.

6. Spouse is crazy.  Again, this is frequently true in regular litigated cases.  Having a neutral therapist working with both parties is probably the best way of getting through the case and dealing with any emotional or personality problems that may exist.  In litigation, there's normally no one working in a similar capacity.  You are much better off dealing with a crazy spouse using Collaborative Law.  It's still not easy, but it's better.

All of these conditions make the case difficult and probably more expensive.  Collaborative Law does not make a case cheap or easy to resolve.   Collaborative gives you more flexibility and tools to work with, and you and your spouse get to create your own unique solution using a system you control.

Thursday, January 10, 2013

How to Start a Collaborative Divorce

Since Collaborative Law is still relatively new, many people may feel unsure about how to start the process.  It's actually very simple.

1.  Be sure you really want a divorce.  Counseling or a cooling off period may be helpful.  A divorce creates huge changes, which can be great in some cases, but divorces are usually difficult.  You should really think about this before you start.

2.  Learn a little about Collaborative Law.  You're doing that now.  You should probably read several blog posts and look at web sites to be sure you have a basic understanding.  Also, read information from the jurisdiction where you will be filing, because there are variations in Collaborative Law from state to state.  (The same would be true about litigation varying state to state.)

3.  Find a Collaborative lawyer in your jurisdiction. Your jurisdiction is the county where you live, such as Tarrant County, Texas. You can search online or you can ask friends, family and trusted advisers.  Call an attorney's office and ask for a recommendation.  Whatever referral you get, be sure to research online about the lawyer's experience in Collaborative Law.  The attorney should have had a two-day basic training (at least), and it would be wise to find an experienced Collaborative attorney who has had extensive training.

4.  Consult with the attorney.  Meet with the attorney and decide whether the chemistry is right.  If not, go see someone else.  If the attorney tries to talk you out of using Collaborative Law, go get a second opinion from a trained Collaborative attorney.

5.  Talk with your spouse about how to proceed.  That can happen before you meet with the attorney, if you are on good terms with your spouse.  If you need to wait to tell your spouse until later, you and your attorney should try to figure out the best approach to meet your spouse's situation.  Keep in mind that you can't do a Collaborative divorce unless your spouse agrees to it and hires a Collaborative attorney.

6.  Your spouse hires a Collaborative attorney.  You can't control that aspect, but you can support and encourage your spouse to find the right attorney.  Your attorney can suggest several names of attorneys for your spouse to consider, if that would be helpful (sometimes it isn't!).

7.  The two attorneys have preliminary discussions.  They choose and contact a neutral mental health professional and a neutral financial professional to work on the case.  They usually have a conference with all the professionals to go over the background and issues of the case.  Then they schedule the first joint meeting.

8.  Attend the first joint meeting.  Everyone discusses the process and the Participation Agreement is reviewed and signed.  Usually, if there's time, the parties discuss their goals, needs and interests so everyone will know what needs to be accomplished in the process.  The next meeting is planned and information gathering assignments are made.

...   That's how you start a Collaborative divorce in North Texas.

Tuesday, January 1, 2013

Considering Collaborative Law for Your Divorce?

If not, you should!

This is a time of the year when people set goals, make resolutions and often consider life changes.  One of the biggest life changes that is frequently considered in January is getting a divorce.  A wise person will look around to determine what options might be available and to find a compatible attorney.

The "default" approach, or traditional way, to divorce is the litigation-court system.  Typically, one party files for divorce, sets a temporary hearing and has papers, including a restraining order, served on the spouse. The parties go to court, negotiate temporary orders and then prepare of a final trial by doing Discovery.  That's the formal process of requesting and obtaining documents and information from the other side.  After that, the parties normally go to mediation just before trial.  The case usually settles at mediation, but if it doesn't, they go to trial.  The trial is usually about a year or more after the case was filed.

A different way to settle the divorce issues is offered by some attorneys.  Collaborative Law is a relatively new process for coming to an agreement on the terms of a divorce.  It involves having a series of meetings between the parties, their attorneys and some other neutral professionals.  Like mediation, it usually works.  The parties agree to not go to court.  If the process breaks down and they don't reach an agreement, the attorneys have to withdraw and the parties start over with new attorneys.

Here are some of the advantages of Collaborative Law:

1.  Privacy.  There are no court hearings, very few documents are filed with the court and the discussions are confidential.  The decisions are made in private. Embarrassing details are not exposed and prominent public figures or families are protected.

2.  Control of the outcome.  The parties make their own decisions, rather than having a Judge, who is a stranger to everyone, do so.  There's no agreement or settlement unless both parties agree.  The parties decide their own fates.

3.  Flexibility.  Instead of following the rigid state guidelines for support or visitation, the parties are able to create something that matches their needs and abilities. There are always better ways than dividing everything 50-50.  People can be very creative in finding solutions.

4.  Expert guidance.  We normally use a neutral therapist and neutral financial advisor to work with both parties.  As a result, the meetings run smoothly and we have experts helping us with kid issues and financial issues.  It is a safer environment inn many ways for both sides.  Many people going through a divorce don't have much financial knowledge or don't really know effective ways to work out sharing of time with the children.  The neutral experts help with both.

5.  Efficiency. There are many ways that this process is efficient.  Information gathering is much more focused on actual need for information and on valuable information.  In litigation, very broad requests are made and they become very time-consuming for both sides.  In Collaborative, the Financial neutral specifies what information is needed and that's what is produced.  Also, instead of having duplicate experts working on property or children's issues, we use single, neutral experts who work for both parties.  Steps are taken as needed rather than just because it's the way it's always done.

6.  Control of timing.  In litigation, the Court usually will impose a schedule that is binding on both parties.  Sometimes that becomes inconvenient, but it's nearly impossible to change.  In Collaborative cases, the parties work at their own speed and the Court must leave them alone for up to two years. They finish when they are both ready to finish.

7. Everyone gets heard.  Collaborative cases utilize a series of meetings where both parties actively participate.  In addition, the parties get to sometimes talk privately with each of the experts.  In litigation, there are strict rules of evidence and procedure that limit the parties' ability to speak freely.

8.  Respectful environment.  Divorce cases can get ugly in many ways.  In Collaborative cases, we always have the neutral therapist managing meetings and helping the parties function at their highest levels.  In addition, the attorneys also work together to make sure everyone behaves well.

9.  Creative solutions.  When litigation cases are settled, they also always follow a "standard" path -- guidelines for child support and visitation and property division within a narrow range of possibilities.  If the case goes to trial, the result is usually even more standardized.  In Collaborative cases, the parties are free to experiment and try alternate custody arrangement, different support terms and property divisions that focus on the needs and interests of the parties more than a standard 50-50 to 60-40 division range.

What to do?
If you are facing a possible divorce, you should talk with an attorney about Collaborative Law as an option.  If the attorney says it's not appropriate, you should consider getting a second opinion, especially if your spouse wants to try Collaborative.  For help in finding a good Collaborative attorney, see prior articles in this blog on that topic.