Texas Collaborative Law Blog

Why You Might Want Help in Negotiations

2012-02-02T22:29:00.000-08:00

"Do it yourself" is a time-honored tradition for many things. Home improvements or repairs come to mind -- a good idea for a handyman, but not such a good idea for others, like me, without the talent and experience to know what to do or how to do it for projects above the basic level. On the other hand, there are lots of books and videos about how to do things without hiring expert help.

The "do it yourself" spirit has invaded the legal field, encouraged by forms, videos, web sites, blogs, e books and other books. There are also some non-lawyer services that provide help. Many people are willing to take on their own legal matters and it works out well for some of them. For others, there can be significant problems. How do you decide whether to step up and negotiate your own case? Here are some considerations.

1. Do you have the full information? Do you know what you need to know and how to get it? Most people don't, and it can be difficult sometimes, even for experienced lawyers. If you have all the needed information, you may not need help. If you are unprepared on the information, your result will suffer.

2. Is there equal information for both sides? Often, one party in a marriage tends to monopolize the information on all the financial issues or the children's matters. The other party can negotiate effectively only if he or she gets access to all the information.

3. Is there equal bargaining ability? Does one party have more experience or ability in bargaining? Sometimes one party does negotiations at work or has received special training in negotiations and that may give that party an unfair advantage. (It could be you or your spouse!)

4. Is there a power imbalance? If one party always seems to dominate the other, the submissive party is not going to do well in negotiations. Even with a mediator or some other facilitator, one spouse can easily intimidate the other prior to the negotiation sessions.

5. Is there equal motivation for both parties? If one spouse is more motivated than the other, the unmotivated one may get run over.

6. Has there been adequate preparation? One party may be pushing strongly to wrap everything up quickly, while the other may not be ready for a long time. The motivated one may have been preparing for a long time, emotionally and otherwise, and the other spouse may need more time to prepare. Without enough prep time, the negotiations are not going to go well.

7. Is there trust between the parties? There are different levels of trust, but a complete absence of trust and goodwill may doom any negotiations.

Bottom Line: If there are imbalances in the relation of the parties, the dominant one will very likely have a significant advantage in negotiations if the parties try to reach an agreement without using attorneys. Don't allow your spouse to pressure you into agreeing to negotiate if any of the problems above are present. Instead, talk to a lawyer and get some professional help. Attorneys have several methods, including Collaborative Law, available to resolve conflicts.

Other posts have explained the benefits of Collaborative Law. Look into it before deciding to negotiate for yourself. Collaborative Law addresses these issues by cooperatively gathering, sharing and analyzing information. The process involves professionals as neutrals who work for both parties and the attorneys. Any imbalances are leveled out by the professionals so that each party can work to achieve their goals and meet their needs.

You may be making your most important financial, family and legal decisions, and it's not a time to be cheap. Your future is on the line!

How to Set Meaningful Goals for Collaboration

2012-01-15T05:31:00.000-08:00

When we set goals, the natural tendency, and the easiest approach, is to just make a list of the things each party wants, such as the house, a retirement plan, alimony, a savings account, $50,000.00 cash, control of a business, etc. Actually, in a Collaborative case, we want to approach goals at a higher and broader level. For example, you can state that you want to provide sufficient funds to pay for college for the kids.

Goal setting is an essential first step in Collaborative Law cases. Both parties need to identify and state what goals would be important to them. Some goals are joint and some are individual. It's really nice when there are joint goals, but that doesn't always occur. Joint goals might include such things as raising the kids while acting as co-parents, having the kids live in a safe and comfortable neighborhood and saving taxes while dividing up the marital property.

Each of the above goals are broad enough that they will permit consideration of multiple solutions. That means that you will have more and better possible solutions to work with.

When you are setting your goals, here are some principles to keep in mind.

Goals should identify interests. They should be fairly broadly stated and should relate to fundamentally important matters for you.

Goals should not be just a specific solution or asset or amount of money.

It's helpful, but not required, for the parties to have common goals and to work out solutions together.

To help you understand and apply these ideas, here are some examples of badly worded goals, followed by more appropriate statements.

1. "I want the house." That statement is a solution, one choice to address the need or interest in having a house. A better statement of a goal would be something like, "I want an affordable house in a safe neighborhood, near good schools." That identified several interests, including having a house, living in a safe area and being near good schools for the kids. It also allows several possible solutions, including the current house and any other house that met those criteria.

2. "I want the kids 50-50." That is one way to meet an interest that might be stated as, "I want to be actively involved in the kids' lives", which is a much broader goal that probably more accurately reflects the desire to do things with the kids. Being actively involved means more than just spending time. It's playing, talking and listening, reading, studying and other activities with the kids. It can include volunteering and helping with the kids' activities in school and out. It also includes participating in health and medical and dental issues. Being an active parent is much more than just putting in the time. You can ensure that each parent will be able to be an active parent as you allocate the rights, powers and duties of parents.

3. "I want the credit union savings account." That request can be a single solution, but it is important to uncover the real underlying issue, which could be the need for an emergency fund, the need for school expenses, or having seed money to start a business, for example. It's better to look for the big picture and open up to find multiple possible solutions. That will make it easier to find a satisfactory financial or other solution.

When you are setting goals at the outset of a Collaborative case, spend some time and come up with statements of goals that use broad and high-level terms. Don't immediately propose a solution. Instead, look for deeper insight into whatever needs or interests you have. Be willing to ask "why?" to get to the real underlying interests. Don't treat goal setting lightly. You can accomplish a lot if you carefully identify your goals at the beginning of a Collaborative case.

The Benefits of Establishing Goals

2012-01-01T05:13:00.000-08:00

Every year, at the first of the year, a tradition for many Americans, besides planning to lose weight, is to come up with a list of goals for the upcoming year. In Collaborative Law cases (all year long), we also start off each case with the process of the parties listing and clarifying their goals, needs and interests.

Some people like to cut to the chase and start negotiating immediately. They get anxious and see setting goals as unnecessary, expensive and delaying the process. Others have a hard time setting goals and are uncomfortable doing it, so they prefer to avoid it. Actually, the Collaborative process works out better, produces more options and works more efficiently when the parties thoughtfully spell out their objectives in advance. Here's why:

1. Stephen Covey talks about starting with the end in mind. That makes a lot of sense. You can plan your steps and direction once you determine where you want to go. That's better than just assuming that you should aim for arbitrary "standard" solutions, such as a 50-50 property division or taking the standard possession schedule or child support calculations.

2. Setting goals makes you stop and think. Working with experienced Collaborative lawyers and other professionals, you can ask yourself questions about what you really want in your post-divorce life. As you consider different choices and directions, you will make better plans and be more creative in coming up with possible solutions.

3. You may discover common ground with your spouse. When goals are set at a broad level, the parties often discover that they have common goals that make it easier to settle their case. For example, both parents may agree that they want the kids to live in a safe neighborhood or they want the kids to have sufficient funds to pay for college. Both parties may agree that they should pay off some debts so they can start off with debt-free post divorce. In each case, once the broad, high-level goals are set, the parties can begin to figure out how to accomplish them.

4. The process may help you learn more about your spouse. Even if you have been married a long time, there are often things you don't know about your spouse, or your spouse may have changed in ways that you don't know about. If you try to work through a divorce settlement assuming things from the past, your approach may be very inaccurate. Similarly, you may educate your spouse about your new ideas and interests. Continuing down the wrong path through ignorance wastes time and money for both of you and is very dissatisfying.

5. Setting goals helps keep everyone focused and operating efficiently. That translates into saving time and money and minimizing stress. Who wouldn't like that?

Why We Use Interest-Based Bargaining

2011-12-15T14:52:00.000-08:00

In Collaborative Law cases, we work hard to get the parties to establish and then focus on their goals, needs and interests. Negotiating with that perspective is called interest-based bargaining. One of the great advantages of Collaborative Law is the emphasis on goals, needs and interests. Instead of taking at arbitrary approach, such as aiming for half of everything, or using state guidelines to set child support or visitation schedules, interest-based negotiations look at what's important to, or needed by, each party. While courts virtually never order everything sold and the proceeds split equally, many people still start out blindly wanting half of everything. Very often, that's a bad solution.

1. Positional Bargaining. While some people start out saying they want half of everything, many others will start from an extreme position so that they can end up at 50-50 or at a slightly more favorable (but still arbitrary) position. Most people going through divorce use "positional" bargaining, either having an arbitrary 50-50 target or starting at extreme positions and not focusing on what's really important to them. That usually involves tunnel vision, looking only at what's in front of them and not considering alternative ways to meet their needs.

2. Other Contexts. Positional bargaining is used in other contexts as well. Many people will buy a house by negotiating the price with the seller. Sometimes it works out, but other times it doesn't because of an extreme starting point or the unwillingness of one of the parties to compromise. Sometimes the negotiations in other situations become heated and inflammatory language is used as a means of getting someone to change their position. Many people just automatically start a negotiation by claiming an extreme starting point from which they plan to move to an acceptable end point.

3. Interest-Based Negotiations. In Collaborative Law, the focus from the start is on what's really important to the parties. We don't have an arbitrary goal, like 50-50, or arbitrary starting point. Instead, we start with something like "having a safe, affordable house" or "being able to finish the job training program", things that are not as quantifiable, but which are clearly very important to one of the parties. Interest-based approaches require a lot of thought and planning, and they encourage creativity in coming up with customized solutions. Receiving half of a pension might not enable a party to pay for job training, but getting alimony could provide the means for that. Traditional litigated divorces focus on a limited field of possibilities. Collaborative Law emphasizes the parties' real interests.

Examples: In Collaborative Law, here are some examples of solutions linked to needs.

If a party needs cash, there can be alimony or the more liquid assets could go 100% to one party and the other party could get other assets.
If one party needs more retirement funds, that could be agreed, with the other party getting other assets.
If there's an odd work schedule, the parties can create a unique possession schedule for the kids, instead of using the standard schedules.
If a child or a party has special needs, there can be special solutions.
If a party hasn't worked outside the home for a number of years, there can be a focus on getting support or job training, not just splitting the assets.

Anyone wanting a thoughtful divorce should consider using Collaborative Law so they can get the advantage of interest-based negotiating.

Planning Ahead

2011-12-01T09:52:00.000-08:00

Waiting to file until after the holidays. At this time of the year, I have noticed that quite a few people who are about ready to file for divorce have decided to wait until after the holidays. Every year, we get really busy in January and February filing new divorces because people want the divorce, but don't want to mess up the holiday season. It's actually a good idea (usually) to wait. Here's why:

If there are kids, they still have a chance to have a nice holiday; if there's fighting, however, that may not work out. Still, why mess up a major holiday and create a bad association with it for the rest of the child's life? Waiting to file for divorce keeps the possibility of kids enjoying the holidays.

Taking a little more time gives you time to research your alternatives. Should you try Collaborative Law? Or mediation? Or stay with litigation? How do they work? What are their advantages and disadvantages?

You can use a little extra time to gather resources for the radical change that's coming. Maybe you can save some money.

You can also use the time to gather financial information and copy records.

There's also an opportunity to take pictures of things around the house and elsewhere. Use the time to create some useful records and references.

Do a little thinking and planning about what you want to end up with, what you need, what your may want, etc. Plan ahead!

Make sure you are emotionally ready to pull the plug on your marriage. Is it really over? Have you done everything you can do, or want to do, to try to save it? For some people, this is a major consideration. If you are not sure, take your time.

So, there are obviously some good reasons to move carefully and slowly right now. If you choose to wait to file, you can still do some research on Collaborative Law -- one of the options for how to get a divorce -- by meeting with a Collaborative attorney.

A good way to start is to find some Collaborative attorneys where you live and research them on line. Check with friends or other attorneys to find out who is recommended in your area. In you live in Tarrant County, Texas, there are a number of good, experienced Collaborative attorneys. By meeting with an attorney now, you can plan ahead and protect yourself. You can also evaluate whether you are comfortable with the attorneys you visit.

Meeting with an attorney early allows you to make a more thoughtful decision on who you hire and how and when you proceed.

10 Tips for Better Collaborative Communication

2011-11-11T12:12:00.000-08:00

At all stages of a Collaborative Law case, communication skills are important. How you say something is often just as important as what you say, regardless of whether you are talking with your attorney, your spouse or one of the neutral experts involved. At the outset of a Collaborative case, you can expect your attorney, the other attorney and any neutral experts in the case to have some discussion with both parties about how improving your communication style can improve your chances of success. Conversely, poor communication skills and strategies can sabotage the case. During the course of a Collaborative case, there are usually reminders give to the parties about how they are communicating.

At the outset, and all the way to the end of the case, you should try the following suggestions. Many of them are common sense and you may have even heard a lot of these from your parents when you were growing up. They are still good advice.

1. Look the other person in the eye. While this may not feel comfortable in some situations, failing to do so may lead to your spouse making inaccurate assumptions about what you are saying. "Not seeing eye to eye" is more than a figure of speech. It is often assumed to be an indication of deception. Get some help if that is difficult for you.

2. Answer. If you receive a message or a question, please answer so the other person knows you received it. Ignoring it may lead to various unhelpful assumptions about your silence.

3. Don't attack verbally. Sometimes discussions end when one party gets on a roll and starts criticizing the other party. Even if it's "true", don't attack. It doesn't help at all and it may end discussions.

4. Ask for what you want. Don't wait for someone else to speak up for you and don't think you can bring it up later. No one will be reading your mind. Don't assume that someone will remember what you may have said in the past. Speak up for yourself.

5. Speak factually. Don't exaggerate or make up details. Don't make assumptions about what your spouse or someone else wants or would do or say.

6. Don't be looking at your cell phone while you are in a discussion. Pay attention to just the discussion at hand. Choosing your cell phone over the live person or persons you are talking with is rude and would probably be considered insulting.

7. Respond without engaging in or starting an argument. You don't have to be mean or angry as you respond to what is said. Try to keep things factual.

8. Don't rehash all the history of wrongs you suffered that were inflicted by your spouse. In a Collaborative context, the focus is on the future, not on assigning blame for past issues.

9. Respond directly and briefly. Don't start a tirade because of a comment. Don't change the subject and get off on a tangent. You don't want to pay for long, unproductive meetings.

10. Don't make assumptions or read things into statements. Those are common problems, even in Collaborative cases. Try dealing with statements on face value. Adding assumptions will always cause problems because the assumptions are usually wrong and negative.

Whether you are talking with your spouse, having a discussion in a joint meeting or working with a neutral expert, you will have an easier time by implementing the suggestions above.

7 Tips on How to Tell the Kids

2011-11-01T11:27:00.000-07:00

For good parents who are approaching a divorce, one of the hardest things to do is to tell the children that their parents will be divorcing. Some parents just blurt out the news without much thought, but others really struggle to figure out the best way to explain things so that they will not emotionally devastate the kids. For some children, the divorce is not news at all. But for most children, hearing the words is tough to take.

My best suggestion on how to tell the children is for you to work with a counselor. You can get expert help on what, when and how to say things in a way that is less stressful for the kids.

To supplement that, I would add the following suggestions:

1. Do the right planning. Think about things ahead of time and plan for the best time to allow your kids to process the information and feel safe. Be able to explain how the divorce will affect them. Don't over promise or guarantee certain outcomes. Don't discuss issues that haven't been decided. You may have to sometimes say, "We don't know, yet."

2. Do it at the right time. Decide whether you should tell them before someone moves out (probably so), but don't do it too early (and then continue living together) or too close to the move out (they need time to process). A good time may be at the start of a weekend, so there's time for the children to talk with both parents, if they want to. You should probably not tell the kids just before a major holiday or a test at school or some athletic or extracurricular event. It's obviously hard to find a good time.

3. Do it with the right people. That usually means that both parents should be present and should participate about equally. It is preferable to say "we" more than "I". Make it a joint effort.

4. Do it with the right reasons. You can explain things in broad terms, such as "We aren't getting along and can't fix the situation." Don't blame each other and don't be too specific.

5. Provide the right responses. Listen and respond to your children's comments and questions. Provide age appropriate responses. You can give broad statements, rather than a lot of specifics. Do reassure the kids that both of you still love them and the split has nothing to do with them.

6. Provide the right amount of information. Most children don't really want or need to know the nitty gritty details. Be sure the kids know that there is no hope of reconciliation and that you have both reached that decision after carefully considering all the circumstances. Don't try to give the children too much information. Keep it brief.

7. Do it with the right mood. Timing is important. Don't try to have the discussion when the children (and the parents) are tired, hungry, busy, upset or preoccupied. That could lead to bad reactions.

If you are about to get a divorce and you have kids, someone will have to talk with the kids about what's going on. In Collaborative cases, parents usually can get expert help from a counselor to prepare for this important discussion and the parents will usually cooperate in this effort. You can consider the factors above when you and your spouse are planning what to do. Good luck!

If anyone has any additional ideas to share about how to tell your kids about divorce, please share them by commenting below.

Looking for a Little Privacy!

2011-10-12T09:43:00.000-07:00

Every few years, Hollywood will come out with a movie like "War of the Roses" or "Kramer vs. Kramer" that highlights the damaging effects of extremely litigated divorces. Most people have family or friends, if not personal experience, with a contested divorce, and they are familiar with how divorces can become a public spectacle. While divorces vary in the degree of animosity and fighting, even relatively agreeable cases often involve at least some public displays of very personal matters.

One way for people to try to protect their privacy is to choose Collaborative Law as the process they use for a divorce or other family law matter. If you are facing the end of a marriage and you are deciding how to proceed, you might want to consider whether you want to use a private process or go public.

Here are some reasons why some people want to protect their privacy:

1. Many people using Collaborative Law own their own business. They may have a family business or a start-up business, or there may be a small business they have nurtured with a plan for it to grow in the future. Divorce for business owners can be scary because of the possibility of disrupting or damaging the business. Owners don't normally want their competitors to be able to find out the financial details about the business and wouldn't want competitors to get aggressive while the owner is distracted by a public, litigated divorce. Keeping the divorce quiet makes good business sense.

2. Professionals facing divorce are often drawn to Collaborative Law. Doctors, lawyers, CPAs, engineers, counselors and other professionals usually want to protect their professional image, and a messy divorce can really tarnish what had been a carefully protected image, which can hurt business.

3. Sometimes people going through a divorce don't want their neighbors to know. Not all neighbors are wonderful, but many people also wouldn't want good friends to know all about the divorce or their finances or personal habits, etc.

4. Similarly, many people wouldn't want some of their nosy relatives to know. Every family has busy-bodies and gossips. Some will have nasty relatives who are just trouble makers. In those situations, it can be really nice to do everything privately.

5. Protecting children can be very important to some parties. Children should not be exposed to adult disagreements and should not become players in the process Kids don't need to be able to read about their parents' divorce in the paper or go to the courthouse to find contentious documents with unflattering statements about the parents. Kids will obviously know a divorce is going on, but they don't need to be privy to the gory details of the breakup.

At a time when privacy seems to be slipping away because of technology, it's nice to have a divorce option that goes against the tide and provides a process for parties to a divorce to work privately with divorce lawyers and neutral professionals in a civilized manner. Collaborative Law is the option with that opportunity.

You Don't Have to be Crazy to Benefit from the Mental Health Professional

2011-10-01T21:24:00.000-07:00

Collaborative lawyers in Tarrant County, Texas will almost always insist on using a neutral mental health professional (MHP) in a major role in a Collaborative Law case here. Although the Collaborative Law statute doesn't require the use of an MHP, there are few, if any, cases started in Tarrant County that don't include an MHP. If you are considering whether to try the process as a settlement method, you might want to know why we insist on bringing in another professional.

At first, using the therapist may just seem like an unnecessary additional cost for the clients to bear. When we started doing Collaborative cases 10 years ago, we didn't automatically bring in the counselor at the beginning. We sometimes brought one in during the process if things started to fall apart and the parties were threatening to quit. A therapist at that point sometimes was successful in helping us reach an agreement, but sometimes things were too far gone to be fixed. The lesson became clear: the neutral MHP was very helpful, especially if we brought them in early.

Here are some specific reasons why mental health professionals have become integral to the Collaborative Law process:

1. MHPs can help the parties change perspectives during the case. When the spouses are dealing with kid issues, they need to relate to each other as adult parents who are on the same team. When they are dealing with property division issues, they are in the roles of spouses -- husbands and wives -- which is different from parents. Co-parenting is an important goal for most well-intentioned parents, and an MHP can help spouses switch gears and get into a co-parenting mode when they discuss child support, visitation and other child-related issues. Husbands and wives still need to be cooperative in dealing with property division issues, but it is a different point of view.

2. MHPs can help the parties learn to listen better. That is a very valuable skill that will improve communication and can lead to better cooperation. Everyone feels better if they know they are being heard by others. Too often, spouses going through a divorce engage in arguments without seriously listening to each other. A neutral therapist can help train the parties to improve their listening skills and that may help the parties have a better relationship post-divorce.

3. MHPs can help the parties learn to communicate better. Word choice is an under-appreciated element of effective communication. With some guidance from a neutral MHP, a party can become a more effective negotiator by avoiding saying some things that will usually trigger an angry response from their spouse. Therapists can often help the parties recognize and avoid emotionally-laden words and phrases. Just avoiding using the word "you" and replacing it with an "I" statement (for example: saying "I feel insecure when I don't get to see the financial records...." instead of "You never let me see the bank statements" ) effectively conveys the message without attacking the spouse.

4. MHPs help the parties manage their emotions. With skills that attorneys don't ordinarily possess, therapists can often recognize anger, fear and other emotions in time to deal with them before they derail the process. As effective as Collaborative Law is, the process is still often very emotional and difficult. MHPs often meet or talk with the parties between joint meetings and can help defuse small problems before they become big issues.

5. MHPs observe and are alert to developing problems at joint meetings. They keep the peace and keep the parties from becoming upset at meetings. With a counselor watching and listening to the parties, we can quickly intervene and stop escalating bad behaviors, such as anger, offensive body language or controlling actions or statements. The MHPs help the parties keep the high ground and not fall into old patterns of arguments that can be very destructive.

Having a neutral mental health professional active from the beginning of the case helps the parties be prepared for problems, avoid problems and react appropriately to difficult and stressful situations. Rather than being considered just an additional expense, MHPs are usually a lifesaver for the process, an excellent investment in reaching an agreement and a better post-divorce relationship.

Don't be surprised if your Collaborative divorce lawyer in Fort Worth or Tarrant County insists on working with a therapist. You would be crazy to disregard that advice.

Why Collaborative Law is a More Civilized Process for Divorce

2011-09-15T20:36:00.000-07:00

Some people facing the prospect of a divorce are angry and want to punish their spouse, regardless of the cost and how it may affect their lives after they are divorced. Others search for a low-key, civilized way to split the sheets and go their separate ways. Those who do not want a destructive, expensive and stressful experience are beginning to turn to Collaborative Law when they learn about it. The process is not yet widely known among the public, but it is gaining more and more fans as they learn about it and try it out.

If you are looking for a nicer alternative to traditional litigation, here are some reasons why Collaborative Law may be your answer.

1. Collaborative Law involves negotiations that are interest-based. That means that the parties ignore traditional guidelines or formulas to come up with agreements. Instead of staking out extreme opening positions and working toward an arbitrary middle ground, the parties identify their goals, needs and interests at the first joint meeting and then follow up to make sure that any solutions that are discussed are consistent and supportive of those goals. A purpose of the process is to help the parties meet their most important needs.

2. The process works through a series of relatively short meetings. Here in Tarrant County, our Collaborative meetings usually run for 1 1/2 to 2 hours each. We don't have marathon sessions (like mediations usually do) because people get tired and don't function as well when there are 3-5 hour meetings. We have agendas that are created for each session and we can take breaks as needed. The meetings are nothing like court and very informal. We do what we can to reduce the stress of meetings, but we can always at least keep them short.

3. In Fort Worth and Tarrant County cases, we normally use a neutral mental health professional (MHP) as a communication facilitator. That's a broad responsibility which covers a lot of territory. We have excellent, experienced therapists who regularly work with us, which makes our team of professionals more effective. The MHP doesn't do therapy with the parties, but she/he does meet with the parties together or individually, as needed, and lends invaluable assistance at the joint meetings. On more than one occasion, when the other attorney and I hadn't noticed any problem, I have seen the MHP speak up and help one of the parties who was feeling slighted or attacked or distressed for some reason. A therapist is an extra layer of protection for the parties in a very difficult time in their lives.

4. The Collaborative process helps maintain a balance of power between the two sides. In some marriages, one spouse tends to dominate the other, generally or on certain issues. For example, one spouse may control the finances and the other spouse may not know much at all about them. In that type situation, the attorneys help keep balance, but an even larger help comes from the neutral financial professional (FP) who works for both parties. The FP will make sure that there is a thorough investigation and reporting on the finances, regardless of who ran the show in the past. It is a unique dynamic not found in litigated cases. Likewise, the MHP makes sure that there's no bullying and undue pressure or unfair tactics being used.

5. The financial professional also helps the parties with tax and other financial issues that need to be addressed during the divorce. The FP is specially trained in Collaborative Law and is familiar with Texas divorce law, so she/he can understand and explain various options, as well as tax consequences. Working together, the parties can often create tax savings that are ignored or impossible in litigated divorces where there is little cooperation.

For people wanting a more rational, civilized approach to divorce, Collaborative Law is likely the answer. It has been called the "kinder, gentler process" and it really is.

Special Note: If you are interested in finding a Collaborative lawyer, be sure to check the experience and training in Collaborative Law of the lawyer you visit. A trained Collaborative professional should have, at a minimum, a 2-day basic training and then 1 or 2 trainings a year after the initial one. Unfortunately, some non-Collaborative attorneys advertise about Collaborative Law and then just talk prospective clients out of it. While Collaborative won't work for everyone, you might get a second opinion if an attorney just tries to talk you out of it.

Slow Down!

2011-09-01T08:39:00.000-07:00

One of the most common issues that comes up in Collaborative divorces is the desire by one or both parties to speed up the process. This can come up at the beginning or at various other times as we work through preparation and meetings.

Why are people in a hurry? There are a variety of reasons. Here's some:

They want to save money. Fewer meetings = less cost (unless you get a bad result and have to start over).
Divorce is stressful and they want it over with.
They already have plans and want to get started on their post-divorce life.
They don't want to be around the spouse any more than they have to.
They are tired of fighting.
The case seems very simple and shouldn't take any time.
They can do things quicker on their own.
Some don't like the process because they have to make tough decisions.
They don't think there are any alternatives that they haven't thought of.
Some don't like the "touchy-feely" aspects of a Collaborative case.

As a result of having some of those attitudes, parties in a Collaborative case will sometimes try to skip steps or try to meet with just their spouse to resolve some or all of the issues. That usually works out badly. Keep in mind that most people starting a Collaborative divorce have already failed at directly negotiating the issues with their spouse.

Here are three significant steps that should not be skipped:

1. Setting goals. Many people downplay this stage and are satisfied with such vague goals as
wanting a "fair" property division, "reasonable child support" and an "adequate" amount of time with the children.

Going through the process of setting goals for yourself helps clarify your thinking and focus on what's really important to you.
The process also educates your spouse about what you need. Even though you may have been married for a while, you spouse often doesn't really know what you want or need out of life.
Goal setting is also a way to help everyone to start thinking about solutions. Once you identify what to aim for, possible solutions start appearing.

2. Gathering information. It is very common for one or both parties to think that they know what they have or what their circumstances are. That's not always the case. In fact, it is very common for at least one party to know very little about some aspects such as property, debts or children. An organized effort of gathering information can help both parties.

Don't assume you know everything. Some things may have been intentionally hidden from you. Other things may have always been overlooked by you.
One of the advantages of Collaborative Law is that there is an extra set of eyes looking over everything, whether it is financial or children's issues.
Having a neutral-led effort to gather and share information can help where one spouse may not understand about debts or assets or child-care issues, for example.

3. Brainstorming. This is the step where the parties try to come up with as many different ways to meet their needs as they can. Often even ridiculous ideas can be tweaked into really effective solutions. It is very common for one or both parties to come to a meeting and announce that they already know the solution and than brainstorming is unnecessary. That is a mistake.

You will limit your options if you skip over brainstorming. You may miss some great ideas.
You will limit creativity. One of the best things about Collaborative Law is that it permits and encourages finding unusual solutions.
Your needs may not get met. If you take a very limited approach, you may not be able to actually deal with some important needs. Assuming that you already know all the possible solutions may result in dissatisfaction with the outcome.

If you give in to the urge to move quickly and skip "unnecessary" steps, you run the risks of not getting heard, of missing out on creative problem solving and of completely missing resolving the issues most important to you. There is also the risk of one party being overbearing and trying to dominate the other party, leading to bad results as well.

All-in-all, from my experience, you will not get nearly as good a result when you move too quickly and skip steps in the Collaborative process.

Finding a Job Later in Life While Going Through a Divorce

2011-08-15T21:33:00.000-07:00

Many people going through a divorce face the prospect of needing to get a job right away because they will be living on their own and will need the income to support themselves and maybe their children. For Baby Boomers and others later in life, it's a whole new world with a job market they have never experienced.

Finding a job can be daunting any time you are searching when you don't already have a job. The difficulty is heightened if you are suddenly on the market, especially when you haven't worked for a while. Not being able to plan ahead for a job search can make it hard to qualify for some jobs at the same time you experience the urgency of needing something right away. That can be compounded when you don't even know what kind of work you want to do.

These problems are intensified even more when the economy is very slowly leaving a recession, which means that a lot of other people are looking for jobs at the same time you are, when there aren't many jobs available. If you also happen to be going through a divorce, the pressure can seem overwhelming.

Getting Started -- Analyzing Yourself
Since you need to know what to apply for, you may want to consult with a counselor, an employment adviser or an employment agency for guidance in determining a career target. It's important to figure out, if you don't already know, what kinds of careers would possibly work for you. There are some aptitude tests to help you focus on the careers that match your personality, interests and experience. Do some testing before you start searching, so you'll know what to aim for.

Once you decide the type of work you think you want to do, here are some additional steps that can help you find a job.

1. Freshen your resume. First, get a professional to look over what you have and help you come up with appropriate content and design. Resumes are very different from what was common 15 or 20 or 30 years ago. If you haven't been working outside the home, you need to be able to deal with that issue.

2. Do volunteer work. If you don't have recent paid work experience, you can do volunteer work that can improve your resume, especially if the volunteering was related to the field that you want to work in. Doing unpaid work is also a way to try out a field and decide if it is something that might interest you. For example, if you want to be a teacher, help out at a school. You can be an intern for different companies and get a feel for whether you would be comfortable in the industry or in that company.

3. Brush up your skills. You might have a college degree or previous work experience in a field, but if you haven't worked in the field for years, you probably need a refresher course and new skills. We all know how much things have changed throughout our lives. You should plan on getting training for your field, no matter how much experience you had before.

4. Put yourself out there. Plan on networking in person and through the social media. LinkedIn, Twitter and even Facebook can be platforms to tell the world that you are looking for a job and to connect with people who might be able to help you get a job. There are lots of networking groups around that focus on finding jobs. You might join one of those, if you are comfortable with it. At the very least, you need to tell people (in a positive way) that you are looking for a job and you should be able to tell them exactly what you want. You've got to keep talking with everyone about your quest -- you're marketing yourself, so plan on investing your time and energy in it.

5. Get a technology tune-up. Find out the latest technology and software being used in your target industry, and then take some quick classes to upgrade your skills. Having a good personality is usually no longer good enough to get a job. Pretty much everyone uses computers and other technology for almost every job. You need to be able to show your proficiency with current technology for your career.

When you discover that you need to get a job, especially if you are a little older and haven't worked in a while, you will have to work extra hard to find a good job. If you have any other suggestions to help others, please send in a comment with your ideas!

Who Do You Want Controlling the Outcome of Your Case?

2011-08-01T08:47:00.000-07:00

One of the core elements of Collaborative Law is that we remove the case from the court system and let the parties create their own terms, rather than have a judge decide issues. People who haven't been through the court system sometimes don't appreciate that difference between litigation and Collaboration.

In Tarrant County, Texas, we have six family courts that have two judges each, a District Judge and an Associate Judge. The Associate Judge hears most preliminary matters and the District Judge is usually the one to hear any final trials. When the parties cannot agree, the Associate Judge usually ends up making decisions on temporary issues, including custody, child support, visitation, who stays in the house, how the bills get paid and how the money is allocated, among other things.

There was recently an extensive article in the Fort Worth Star-Telegram about one of our Associate Judges. The article should not be taken as a scientific or completely accurate study of Judge Beebe, and definitely shouldn't be generalized to describe all of our family court judges. In fact, we have 12 judges with 12 personalities that are very different. While the judges all work with the same Family Code (statute) that we use in Collaborative cases, there is a tremendous variation from court to court as to how our judges make decisions, how they run their courts and even what issues are important or not important to them.

The Star-Telegram article does give a glimpse into what life can be like in the court system. Our judges in Tarrant County have a variety of experience and each has their own way of reaching the "truth" or dealing with the essential issues. All the judges know that there are two sides to every story. They have a hard job trying to come up with decisions that protect the rights and interests or both parties and any children. Unfortunately, the judges have limited exposure to the case and limited time to deal with it. Sometimes the parties are happy with the judge's decision, but often one or both parties are very unhappy.

If you are about to get involved in a family law dispute, you have a choice to make. Do you want a judge deciding the outcome of your case, or do you and your spouse want to make the decisions yourselves with the aid of neutral professionals for communication issues, children's issues and financial decisions?

For some people, turning everything over to a judge is a relief. Other people like to maintain control over their future and make their own decisions with expert assistance. If you are facing family law issues, it's a good idea to consult with a Collaborative Law attorney, as well as a litigation attorney, before deciding what course you will follow.

Why Is It Taking So Long? (Part 2)

2011-07-15T09:47:00.000-07:00

In part one of this topic, we pointed out that Collaborative Law usually doesn't take as long as a significant, contested litigation case. In addition, there are some reasons why Collaborative cases require a number of meetings.

When you are the person attending the meetings, doing the homework and meeting with your attorney and the neutral mental health professional (MHP) and the neutral financial professional (FP), it can seem like a very slow process. You stay busy and it may seem like one meeting after another, with no end in sight. In reality, there are good reasons for being methodical and following through with the process. Here are some of the reasons:

1. People need time to process information. No matter how educated or experienced you and your spouse may be in financial and child-related issues, it will take each of you different lengths of time to process the information relating to the issues in the case. Not very many people are comfortable making instant decisions on important personal financial and family issues. There are usually many options and even more considerations for each party.

2. One spouse is usually farther ahead emotionally in the divorce process than the other spouse. That means that the parties and professionals are often slowed down to wait on the less-farther-along spouse to get comfortable with changes in his/her life. It is not uncommon for one spouse to have checked out of the marriage months or years before filing, while the other spouse is clueless. The clueless one will need time to catch up, and that necessarily slows down the process because things have to be done by agreement.

3. It often takes a while to gather information. While one spouse is often very familiar with the financial issues, for example, the other spouse may be very unfamiliar with them, so extra care is taken to educate the other spouse. In addition, the FP may want to review documents that take a while to obtain, such as retirement account plans and summaries, for example. Some issues relating to the children may need to be sought out, especially if there are special needs.

4. The parties need time to come up with creative solutions. Some issues are complicated and sometimes there are multiple significant issues. The parties and professionals need to create appropriate solutions and sometimes that's just a slow process. In some situations, the parties decide they need more information or more expert advice, which adds to time commitment.

5. It is usually necessary to limit the meetings to no more than two hours each. The parties and professionals get tired and that can lead to conflict or one party shutting down. There's no reason for the parties to get into a marathon negotiation session. That's often the way mediations are conducted, and it's often a problem. When there is a complicated estate or significant assets, there's a lot to cover and the discussions shouldn't be superficial. In such a stressful environment, people can operate effectively for only about two hours at a time.

The amount of time it takes to do a Collaborative case should not be an issue if you keep in mind that litigation would almost always take longer and there are good reasons why Collaborative Law cases take longer than you might initially expect.

Tips for a Better Collaborative Experience

2011-07-01T07:57:00.000-07:00

Although most people enter into the Collaborative divorce process with the intent to get a "better" or "more civilized" or "friendly" divorce, the good intentions often fade away in the heat of the moment. In Collaborative cases, emotions can still be high, fears still exist and relational problems that may have led to the separation still exist. Personal and inter-personal problems are not cured by the signing of the Participation Agreement at the start of the process. Sure, everyone promises to behave and be cooperative and not delve into blame for past problems, but it is easy to change course if one or both parties gets mad or anxious.

The attorneys and other professionals working on the case are trained to recognize any bad or inappropriate behavior and to help the parties get back on course. Still, it would be better if both parties could avoid the flare-ups. With that in mind, here are 5 tips to help people in Collaborative cases to do their best.

1. Don't negotiate with your spouse between sessions. This is a very common problem and it's a very bad idea. Sometimes the case is going well and the parties think they can quickly settle some issues without the professionals around. Sometimes the parties just want to save money and settle some issues without involving the professionals. In practice, it usually doesn't work out well. The same problems, attitudes or behaviors that made it impossible to work things out before the parties hired lawyers still exist and will reassert themselves without the management of the professionals in the case. Please don't start negotiating directly outside of Collaborative sessions.

2. Don't text your spouse in anger or when fueled by alcohol. This doesn't need to be explained. Beyond that, I would suggest that any texting be extremely limited. Remember, such messages can be saved and would look very bad in court if the process broke down. And, that's not an effective way to get your spouse to do what you are wanting. (In addition, see the comments in #1).

3. Don't leave messages on a phone when you are angry or intoxicated. (See the comments in #2 and #1.)

4. Don't focus on blame or fault. It doesn't have a significant role in a Collaborative case. It is much better to look forward and not backwards. You may think your spouse is at fault on major issues, and you may be right, but your spouse would also blame you for some problems, and might also be right. There's almost always fault on both sides of a divorce. The problem is that after the argument about who's more at fault, you haven't moved any closer to resolution. You have just wasted time and created ill will which will make it harder to get to an agreement.

So, what should you do?

5. Focus on big goals, not small issues. Don't stay focused on the ground, look up! Formulate broad, relevant, important goals for yourself. Don't limit yourself to a predetermined outcome. For example, your true goal for housing may be to have a safe, affordable, secure home in a good neighborhood. That might include the house you live in now, but there might be other ways to accomplish that goal -- get a new house, a duplex, an apartment, house sit, rent a house, live with a friend or relative, etc. If you limit your goal to keeping the house you live in now, you may miss an opportunity to have a better living arrangement. Collaborative Law gives you the possibility of creating a better future for yourself. Don't waste your time dealing primarily with little problems. Your attorney and the other professionals can help you formulate goals for your situation. Think Big!

Collaborative Law is Spreading World-Wide

2011-06-25T09:34:00.000-07:00

As an interesting sidelight, I want to point you to a recent article on an Australian attorney's blog mentioning how the President of their South Australia Law Society (bar association) was talking about Collaborative Law in a recent newspaper story. He has a good, basic description of how the process works and encourages people to consider using it if they are about to go through a divorce.

Collaborative Practice is also very strong in areas all across the United States, Canada, Europe, Israel, Africa and parts of South America, as well as other areas.

The basic reasons for using Collaborative Law are the same around the world. People want a less destructive process, privacy, the ability to make their own decisions and dignity. It won't work for everyone, but for many people, it can ease the family transition from married to single.

If you are facing life-changing decisions in your family, you should research Collaborative Law and meet with a Collaborative lawyer in your area.

Seeking Equal Time with Kids -- Part 1

2011-06-01T10:23:00.000-07:00

In both Collaborative divorces and litigated divorces, the phenomenon of a parent wanting equal time with the kids is becoming more common. Sometimes, both parents agree that it is an appropriate goal. In other cases, there is some disagreement as to how much time each parent should have. There's no automatic solution on how to divide time since it depends on many, many factors, including the history of the parties and the children. This post will assume the children are at least 3 years old, which is the most common situation. For younger children, we have a new Texas statute that we can look to for some ideas on what to do.

How to Split Time Equally There are many different ways to "equally" share time with the kids. In Texas, there is an extended standard possession schedule which is pretty close to 50-50, even though it may not seem that way. The non-creative way would be to follow the standard possession schedule, but that's usually not why people choose Collaborative Law. Some other ways include:

Week on, week off. This involves the children staying with one parent for 7 straight days and then moving over to the other parent for 7 straight days. Sometimes, there is a provision for weeknight contact once or twice during the week, but probably more often, it's just 7 uninterrupted days. This system is becoming more common, but whether it is a good fit with the parents and children depends on them and their needs and desires.

Month on, month off. This is not as common. When used, there's usually weekly access of some sort by the parent the kids are not currently staying with.

2-2-3 (2 days here, 2 days there and a 3-day weekend alternating between parents). There is plenty of contact between the children and both parents. The parents get to be regularly involved with the kids on a predictable schedule which can make it easier for parents to adjust the work schedule. There is a concern, from the kids' point of view, that they are being moved around too much. Again, careful consideration should be given here as to whether this schedule benefits the kids or just primarily the parents (or one parent).

Every other day. There's frequent contact between both parents and the children, but at what cost? This usually seems like too much change when a child needs some stability.

Nesting. This is an interesting option that can rarely be done. It requires two parents who can't live together, but who live near each other and who trust each other enough that they can alternate sharing a residence. The children stay in the same residence all the time and the parents take turns (for a few days or a week) staying in the residence with the children and then moving out so the other parent can stay for the designated time. For the right couple, it can work pretty well.

Should You Try Equal Time?

1. The #1 consideration should be the effect the arrangement would have on the children. That calls for good judgment among parents, something that is often in short supply when the sensitive topic of time with the kids is being considered. Too often, there is a competition between the parents to "control" the kids by having as much time as possible. Instead, the parents should be thinking about what approach would benefit their kids the most.

2. Consider the parents' time available and abilities. Some parents have very difficult and changing work schedules which make it hard to plan ahead. In many relationships, each parent tends to take on more responsibility for certain aspects of child-rearing. That should be considered to the extent possible, but it is also possible, and often good, for parents to change their roles with the children.

3. The age of the children will often determine what is appropriate. Younger children require more time and hands-on attention. As kids get into school, they often need help with homework and with learning the discipline to study. They also still need to play and be involved in sports and extra-curricular activities. Teens, of course, are much less manageable. The time sharing needs to take into account all those factors and be able to adjust in the future.

How Should You Work it Out?

Use professionals. Don't just try to agree on something on your own. One of the great values of Collaborative Law is that you can have access to excellent neutral experts who can help you craft a plan for your kids that is appropriate for your circumstances the children's needs. Be sure to take advantage of what is available.

Last Ditch Effort: Should You Try Marital Counseling?

2011-05-15T09:46:00.000-07:00

What should you do if, after a discussion about divorce, your spouse requests that the two of you attend marriage counseling to try to save the marriage? Or, should you suggest that you and your spouse get counseling before taking the giant step of filing for divorce?

There's no universal answer, but I would generally lean toward trying the counseling. You would invest some time, money and emotional energy, but the reward could be much greater than the cost, if you are able to get your marriage back on track. Here are some possible benefits from both sides putting in the effort through counseling.

Advantages of Trying Counseling

You could improve your marital relationship and save the marriage. Counseling actually works sometimes when both parties make the commitment and follow through. It's not going to be easy, but there is a possibility of real improvement for each of you.

Even if your marriage isn't saved, there may be significant benefits from working with a counselor.

You and your spouse can learn some skills to help you better cope with a divorce. Your counselor can help both of you learn to listen and communicate better, manage stress and deal with difficult decisions that come up with a divorce. If you have children, you can work on learning co-parenting skills.

A counselor may be able to help each of you understand the need for divorce. There may be insurmountable differences in goals, values or the views of the respective roles of the parties. There could be issues relating to the extended family on either or both sides. There may be very different ideas about how to raise the kids. Some things can't be "fixed" and it can help to get that confirmed by an outsider.

Counseling may help synchronize the emotional states of both parties. It is quite common for one spouse to work through a lot of family issues internally without saying anything to his/her spouse, and then "suddenly" announce the need for divorce. People going through divorces usually go through a number of steps emotionally before they get to acceptance of the divorce. If only one party has been working through that journey, unbeknown to the other party, it can be really tough on the one surprised. Counseling can help the slower party understand what is happening and can help the faster party learn to slow down and give the spouse time to work through the emotions.

Sometimes you just need a referee to help you and your spouse have civilized, adult conversations. The counselor can help maintain order and make sure both of you are heard.

What should you do if you or your spouse wants marital counseling?

Make sure you get a qualified, experienced counselor. You can research on line and you should get referrals from a Family Law attorney or someone else you trust. You can change counselors if you don't like how the sessions are going, but don't use that as a weapon against your spouse.

Make sure you can afford the counseling. Find out what the cost is and check into whether the counseling can be covered by a health insurance policy. Only request counseling if you sincerely want it. Don't waste your money just going through the motions. Make sure your spouse is sincere about attending and following through with the counselor's suggestions.

Don't expect vindication. Neither you nor your spouse should go into counseling expecting vindication or a decision saying that you are completely right and your spouse is completely wrong. There is normally room for improvement on both sides.

Final Words

Remember: neither you nor a counselor can make your spouse change. Counseling can work, but don't assume that it will magically (or quickly) transform a difficult situation.

New Skills for Finding a Job -- Using Social Media

2011-05-01T16:15:00.000-07:00

If you are a Baby Boomer, 50 years old or more, and contemplating a divorce, you will have to make many changes in your life. Among the most important may be finding a job or career, if you will need or want to work. It is pretty common, for people going through a divorce later in life, to need to work to support themselves and their family. Many Baby Boomers have been staying at home and taking care of kids for years. Even if they worked when they were younger, their skills are rusty and their old jobs have been filled or abolished. In addition, the Boomers may have different interests now, or maybe they never liked their old jobs in the first place.

If you find yourself in this situation, there is some good news. There are many new opportunities for marketing yourself to potential employers. The Internet is the natural starting point. There are some fairly new approaches to finding a job and getting yourself known to companies and people who are hiring. Before jumping in, here are three important points to keep in mind.

Planning Ahead with Social Media

• Be careful. Make sure you think before you speak or write something. You will be judged by what you say and do on the Internet and by what your pictures show on the Internet. A lot of party pictures and stories may not convey the image you want. Watch spelling, grammar and word choice in anything written.
• Be targeted. Think about who you want to hire you and the best way to reach your potential employer. Use whatever tools you can find that will bring you into contact with acceptable employers. Don't just rely on general notices or comments. Research the industry and figure out what the leaders are involved in and then communicate there.
• Be creative. Think outside the box and find appropriate ways to distinguish yourself from the myriad of other candidates, but use good taste. Don’t just use the basic information everyone else will. Try to approach each potential employer uniquely and show that you have taken the time to research their business. Be memorable -- in a good way!

How Can You Use Social Media?

Make sure you research and determine what media your industry relates to and then watch it for a while before you jump in. Here are a few possibilities, but there are many more and there are new tools and sites created constantly, so keep looking around.

1. You Tube. You have to be very careful to be appropriate, but this can be a strong attention getter if it’s well done. You may need professional help in putting together some short videos, but you can really connect with well-done products.

2. LinkedIn. This won’t work for all jobs, but for professional careers and some others, this can be very effective. There is a huge number of people who are on LinkedIn and you can do research on a company and other employees (including interviewers, sometimes), so you can be prepared to apply. There are discussion groups for many different subjects on LinkedIn. If you can join in the discussions and contribute with give and take, you can make some connections who might help you get hired somewhere. It’s a good site where you can get to know others with similar career interests.

3. Listserves. There are tons of listserves for all kinds of interests. Search and you can probably find some you can join that relate to a particular type of job or even how to find a job. Over time, you can become friends and help each other out. You need to be able to contribute to the discussions. By being active, you will probably be able to get some useful information on a career as well as companies in your field.

4. Twitter. You can follow local people in whatever you are interested in. If you can contribute to discussions and add something interesting and useful, perhaps some links, you can develop relationships that could lead to work. You should carefully target your field and your geographic area. Don’t try to just get the highest number of followers by using some secret trick – it won’t work and it’s not worth anything to you anyway.

5. Facebook. This is mainly listed because so many people are on Facebook now. Plus, there are business or fan pages and you can look up businesses and learn about them through these pages. On the regular Facebook, you can make new connections and you can re-connect with old friends. If you take time to create and nurture relationships, job opportunities could be the result. But, you should be very careful what personal information you publish, what information you let others read and what pictures are shown. There are often very embarrassing disclosures on Facebook that just shouldn’t have been put there. Be careful and think before you post!

These are just five types of “social media”. They all take some time to produce results. You have to commit to them over time and it's really the relationships that you can create that will produce results. These can provide great opportunities for Baby Boomers and others to creatively search for employment, but don’t limit yourself to just these approaches. New tools and apps are coming out all the time, so keep looking and trying new methods. Good luck in the job search!

Why Is It Taking So Long? (Part 1)

2011-04-15T09:46:00.000-07:00

One of the most common frustrations expressed by people using the Collaborative Law model to go through a divorce is the speed (or perceived lack thereof) of the process. To me, it's a matter of perspective. When people are directly involved in regular joint meetings and meetings with their attorney and meetings with the neutral professionals, they can seem to be very busy. That is a ground-level view and it may truly seem like the process is creeping slowly along when there are 2 or 3 or 4 weeks between joint meetings. In reality, there's usually a fair amount of work getting done by various parties between the joint meetings, but it is very easy to overlook that.

Perhaps a more comforting approach is to look at the process from a figurative 30,0000-foot elevation. Looking down from high above, the Collaborative divorce process may appear to be moving much more quickly.

Comparing Collaborative to Litigation

Another way to compare the situation is to look at what would be happening if the the case were proceeding through the courts in Texas. In Tarrant County divorce courts, you can count on an average of a year, and often a year and a half, to complete a contested divorce, depending on which court you are in and how complicated your case is. Here's why:

1. Discovery can be very tedious. It is the process of gathering, organizing and sharing information between the two sides. In litigated cases, there are usually written requests for documents, written questions and some other requests for information. The parties usually have to produce documents for the last 3-5 years, at least. Many of the requested items are just minimally relevant, but everyone wants to cover all the bases and not overlook anything. The parties are usually given 30 days to produce the information, but that's usually extended because they can't get everything together that quickly.

After 60-90 days, the initial exchange of documents is usually completed, but one party or both usually don't think they've gotten everything, so they file motions to compel production and sometimes motions for sanctions. Those are set for court, hearings are had and there's a ruling, usually to produce the documents or answer questions.
In addition, experts have to be appointed to appraise businesses, real estate or pensions, and then you have to wait for their reports.
Afterwards, there will probably be depositions of the parties and any experts.

2. On contested children's issues, litigation is often a slow process as well. Here in Tarrant County, some courts will give a temporary custody hearing right away, while others want to do an investigation before having the hearing. Some will just start by each parent having the kids for alternating weeks, regardless of how the children have been living and regardless of parents' schedules. Often, the parents are sent to Access Facilitation to try to work out a time-sharing arrangement, and that's great when it works. If the case is truly contested, most courts will order a Social Study which usually takes 6 to 9 months to complete. In the meantime, the court will usually order the parties to attend a co-parenting class.

3. There are usually numerous court settings on contested cases. Different matters are often heard at separate times and sometimes new hearings are scheduled when the situations (facts) change. Hearings get postponed for various reasons, which can be very frustrating. In some cases, there's not an immediate decision from the judge. There are lots of opportunities for delay in the litigation system.

Conclusion: Even though a Collaborative case may feel like it's moving slowly, it's probably moving much, much faster than a contested litigation case would have been with the same issues.

Getting Help for a Later in Life Divorce

2011-04-02T15:09:00.000-07:00

One of the best advantages of Collaborative Law is that we can bring in specialized help for the exact needs of our clients. Baby Boomers and others who face divorce after long marriages often need special help with the transition from married to single. Finances need to be managed and often one of the parties needs to change or start a career that will produce adequate income for a number of years. Sometimes, health and certain family members require extra attention. Be sure to thoroughly explain all your concerns at the outset to your attorney and the other professionals involved. Just so you know, here are some outside professionals who may be helpful.

5 Additional Professionals Who Should Be Considered

1. Divorce Financial Planner. In North Texas, we usually automatically bring in a Financial Professional from the beginning. If you are starting a Collaborative case, you should discuss this with your attorney. Although the recent recession may have affected some couples' situations, many starting a divorce after a long-term marriage must deal with substantial assets and complex business, retirement, and investment property interests. Taking a figurative saw and cutting everything in half is usually not the best solution, for many reasons. It's better to determine the best mix of assets for each spouse, considering the tax implications and the relative needs and abilities of the parties. An arbitrary approach of taking a percentage of everything may not benefit either party. It's a lot better to focus on the needs each party identifies.

2. Personal Coach. Every divorce is difficult for different reasons and sometimes parties need an unbiased “coach” who can help them stay on track and make good decisions. Coaches don’t provide therapy. They work with you to identify, stay focused on and accomplish your goals. Many business people use coaches because they can be a great resource to bounce ideas off of and to help keep things in perspective. Coaches can help you deal with issues in a more rational and beneficial way.

3. Career Planner. After being married for a long time, it is pretty common for one of the spouses to have been a stay-at-home parent, which puts that spouse at a disadvantage in joining the job market and competing with younger workers for good-paying jobs. Sometimes previous work experience doesn’t seem as interesting as it may have been 20 or 30 years before, or there could be health issues that interfere, or the spouse may just not be up-to-date with technology in that field. It can be pretty overwhelming to suddenly have to find a job, so getting a professional evaluation first and then getting guidance as you follow through the process of finding a job can make all the difference for you. Be willing to take some tests and then get some training if you need to. A professional career planner can help you find a viable career direction, hone your skills and learn how to present yourself in the best possible light.

4. Counseling. Without anything implication that you are crazy, I can strongly urge you to get some counseling as you go through the divorce process. There are many emotional issues that you experience during a divorce. People usually go through a range of emotions, including denial, anger, depression, and acceptance, among other things. Counseling for one party is good, and for both parties can be very helpful.

5. Medical Evaluations. Unfortunately, as people age, they often experience some medical situations that can be permanent or temporary. Sometimes it’s hard to face medical issues, but they are real and you and your family will do better in the long run if the facts are out on the table. Medical needs can make a large impact on the outcome of a divorce case in terms of property division, insurance, debts, spousal support and other issues, so you need to get the facts and incorporate them into your solutions.

What to Do

Discuss with your attorney what additional professionals might be able to help you and your case. Sometimes, you can work briefly with one or more of the professionals and get a lot of benefit. You may feel like you don't want to spend the money, but in most cases, the professionals can save or make money for you. You don't necessarily need to hire all the experts listed above, but keep an open mind because you could have a much better settlement agreement at the end if you get assistance throughout the process. With 20 to 30 or more years are at stake, you need to be very thoughtful and willing to be non-traditional.

How We Reach Agreements

2011-03-05T20:21:00.000-08:00

Part of the Collaborative Law process involves following what we call the "Roadmap to Resolution". It is a simple, logical 5-step process that leads to good solutions to difficult problems. Here is a brief summary of the steps.

1. Determine the goals of each party. This is a fundamental step which will set the direction of the process. The parties need to identify their goals, needs and interests so that everyone knows what the targets are. These need to be set out in broader terms, rather than in very narrow, lower-level terms. For example, one might decide that a goal is to have a home in a safe neighborhood for the children. That is a higher and broader goal than saying that you want to keep the house. There very likely are a number of good houses that are affordable and in a safe neighborhood which could be the same neighborhood as now, or a different one. Having broad, macro-level goals allows more possible solutions.

2. Gather information. The parties both provide whatever information is relevant and needed. Sometimes, the parties must get outside sources to provide information, such as real estate or business appraisers. Financial information is obtained and organized by the neutral financial professional. Parenting information is shared with the neutral parenting specialist or the neutral mental health professional who helps the parties.

3. Generate options. Once the information is organized, the parties work with the whole team of professionals to create settlement options. This is a brainstorming exercise with the objective of coming up with as many ideas as possible, without judging them at this stage. Even ridiculous ideas can be included. This allows the parties to consider many possibilities that would not, often could not, be considered in a litigated case.

4. Evaluate the options. At this stage, the parties go back through the list of ideas and criticize and evaluate them. The strengths, weaknesses and relevance of each idea are discussed. Some wouldn't work at all, but others might work with a little tweaking. The evaluation stage sometimes leads to combinations or mutations of ideas so that ridiculous ideas may suddenly work or lead to workable ideas.

5. Reach agreement through discussion. Sometimes it's necessary to compromise and do some trading, but the parties can usually come up with a plan to meet each other's needs without abandoning their own values. Working with experienced Collaborative professionals, the parties can create a solution accept to both sides. Respectful communications and the acknowledgment of each other's issues leads to satisfactory resolutions in most cases.

This is a brief explanation for how agreements are reached through Collaborative Law. It is important to follow this structure. It have an outstanding track record of success. Going step by step through the process will almost always lead to success!

How to Be Successful in Collaborative Law Cases

2011-02-03T12:22:00.000-08:00

I just ran across an interesting post about keeping a job once you are hired. On the surface, it provides some good, relevant advice for some people going through a divorce at the same time they are starting, restarting or changing careers. Below the surface, the suggestions made by the authors also provide helpful advice on how to hold onto, and even advance, in jobs. The highlights of the article are the "key lessons" that should be followed. You can see how the key lessons also apply to Collaborative cases. Here are the keys, followed by my comments:

1. Follow the Rules. In Collaborative Law cases, we operate under special rules. We share information freely. We operate with transparency. We communicate respectfully with each other. There are many rules laid out in the Participation Agreement that we review and sign before we get started. We also follow a roadmap to resolution, or a step-by-step process that leads us to agreement. We also often lay out rules of conduct to help everyone remember to behave at the their highest level. As long as we follow the rules, the process can work.

2. Be Honest. There is no room in Collaborative Law for dishonesty or deception. There are plenty of checks built into the system, but dishonesty will cause the process to terminate. If you don't want to be completely honest, or you are sure your spouse won't be honest, you shouldn't try Collaborative Law.

3. Own up to Your Mistakes. Everyone has made mistakes and we all understand that. Instead of arguing about blame, it is much easier and better to accept responsibility for any mistakes you have made in the past. And don't waste everyone's time trying to equalize the blame by proving your spouse also made a bunch of mistakes. Keep in mind that we don't spend a lot of time delving into the past. We focus on the future, so a lot of past mistakes are actually irrelevant. We'll look into issues that are relevant, but not into just everything. The point is, admit your mistakes and we can move on. That applies to both parties.

4. Demonstrate Leadership Tendencies. Volunteer to gather information or investigate some new options that have been developed. Be able to work with others and be responsible for portions of the work that must be done. Collaborative Law is not just a process where you can sit back and wait for everything to be done for you by the attorneys. You need to be actively engaged.

5. Be Nice. As important as this is in a job environment, it is equally important when you are analyzing situations and creating solutions for sensitive and important family issues. Being nice is a big part of the participation agreement and the rules of conduct that everyone readily agrees to at the beginning of the process. Please remember to "Be Nice" when the going gets a little tougher as you move closer to conclusion and difficult commitments need to be made. You can discuss nicely, disagree nicely and compromise nicely. There will certainly be difficult times ahead, but you will do better in the long run by resisting anger and being nice. Your attorney and the neutral communication specialist can help.

In case you are in a new job or want to improve your employment situation, you might look at the post in its original form about jobs. It has some helpful reminders that could help anyone, even if you are just looking to keep your current job.

The Value of Managed Direct Discussion

2011-01-02T13:07:00.000-08:00

Too often, when marriages fail, the parties get caught up in an escalating cyclone of angry words and hurt feelings. Words become weapons and little effort is made to really communicate on a substantive level. For people who don't like that and who want to escape that destructive environment, Collaborative Law offers the possibility of more respectful, and less stressful, communication. Collaborative Law is a process that relies on direct communication between the parties in a controlled environment.

Discussions occur in joint meetings attended by both parties, their attorneys and (usually) a neutral mental health professional (MHP) whose role is to facilitate communication. We usually discourage direct discussions between the parties without the team of professionals being present. Experience has shown that the parties work together well with the attorneys and MHP present, but they can quickly revert to old patterns of conflict without the professionals present. It is truly amazing how much difference there is in discussions between the parties when an MHP is present as compared to when one is not present.

Nevertheless, one of the less-emphasized advantages of Collaborative Law is the benefits derived by the parties from their direct discussions. As a reminder, here are some of the reasons why Collaborative Law is so effective:

1. The communications are unfiltered. When the parties negotiate at the courthouse, for example, they rarely stand face-to-face to discuss issues. The attorneys typically keep the parties apart and the attorneys go back and forth carrying messages from the other side and back to the other attorney. Even though it is unintentional, there is unavoidable filtering or changing of the messages. It might be a few different words, the omission of something or a change of emphasis, but there will be changes in the words that are exchanged. It changes the dynamics of the communications and sometimes will affect the decisions and agreements that are reached or that are unable to be reached.

2. There is faster communication. When the attorneys are going back and forth, there is a lot of repetition that could be avoided by direct communications. Having direct contact also allows for more immediate responses and extended discussions.

3. Non-verbal messages are sent and received in direct discussions. Facial expressions, posture, tone of voice, volume and other factors can be communicated and received in face-to-face discussions. They can add a lot of meaning and can change a message tremendously.

4. Direct discussions can help immediately correct mistakes and misunderstandings. Getting the message directly helps avoid such misunderstandings, and the direct contact allow for immediate confirmation or discussion of things that did not sound right or which may have been misunderstood.

5. The parties can deal with differences appropriately, directly and respectfully. In divorce and other family law issues, there will be disagreements. Sometimes it's best to just acknowledge the differences. In other cases, the parties may be able to compromise when they are able to express their concerns and are encouraged to listen to the other party's issues as well. With the support of the professionals on the team working with the parties, they may be able to deal with difficult subjects without losing their temper. The professionals provide a safe and effective environment for difficult discussions.

These are just some of the reasons why direct discussion can be beneficial. In a carefully managed system of communication, such as Collaborative Law provides, parties are able to effectively take advantage of the opportunities to discuss serious matters directly and possibly come to some agreements.

The Opportunity to Take Personal Responsibility in a Divorce

2010-12-10T13:09:00.000-08:00

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.

How to Choose a Collaborative Lawyer

2010-11-15T22:24:00.000-08:00

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.

Dealing with Anger

2010-10-15T12:20:00.000-07:00

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.

How Would You Describe Collaborative Law?

2010-09-15T14:42:00.000-07:00

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.

Can We Switch from Litigation to Collaborative Law?

2010-08-01T15:32:00.000-07:00

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.

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

2010-07-01T21:07:00.000-07:00

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.

Is Collaborative Law Cheaper than Litigation?

2010-06-15T17:39:00.000-07:00

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.

How It Works -- Joint Collaborative Meetings

2010-06-02T21:49:00.000-07:00

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.

Improving Creativity

2010-05-05T07:50:00.000-07:00

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.

Can You Use Collaborative Law Without Trust?

2010-04-23T19:29:00.000-07:00

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.

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.
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.
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.
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.
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.
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.

Having Collaborative Success

2010-04-13T21:47:00.000-07:00

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.

How it Works -- Putting a Team Together

2010-03-10T21:07:00.000-08:00

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.

Collaborative Prenuptial Agreements

2010-02-28T14:30:00.000-08:00

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.

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

2010-01-30T13:52:00.000-08:00

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.

What Happens to the Family Business?

2010-01-15T21:33:00.000-08:00

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.

What If Your Spouse Doesn't Want to do Collaborative Law

2009-12-28T09:47:00.000-08:00

A situation that comes up occasionally is that one spouse will decide that a Collaborative divorce is the best approach, but the other spouse doesn't agree. Unfortunately, it is impossible to force someone to use Collaborative Law if they don't want to use it. It can be very frustrating for a husband or wife to research the subject and come to the conclusion that Collaborative Law would be best for both parties and then find out that their spouse disagrees. In some cases, maybe you are just stuck in litigation. In some other cases, you may be able to have a mature discussion and persuade your spouse to join you in collaborating. If you want to try to do that, here are some ideas to consider.

1. Try to find out the reason or reasons for the objection to Collaborative Law. Once you understand that, you may be able to come up with reasons to overcome the concerns.

2. Be sensitive to the need to avoid the appearance of pressuring your spouse. Sometimes that alone will make your position unacceptable to your spouse. A spouse may believe that if you want something, it must be bad for them. Try to promote your suggestion in a way that appeals to your spouse.

3. Try to explain the benefits of the process from your spouse's point of view. Some of the following may appeal to your spouse:

Avoiding public exposure by meeting and discussing matters in private.
Having control over the outcome.
Keeping financial records private.
Ensuring that the negotiations are held on a level playing field. Expert guidance is available to help eliminate the advantage of more knowledge or experience with some issues.
Avoiding the duplicate expenses of having competing experts for property appraisals or business valuations.
Encouraging creative new solutions, instead of the statutory guidelines or minimums.
Focusing on planning for the future.

If those reasons don't seem to appeal to your spouse, talk with your Collaborative attorney or other professional and come up with some other approaches to present. The Collaborative process can't be forced on someone, but it's really worth a strong, intelligent effort to show the benefits to your spouse so you can both win.

Should Professional Athletes Use Collaborative Law?

2009-12-11T19:55:00.000-08:00

Many athletes seem to think that they become almost bullet proof and that once they reach a certain level of athletic achievement, they can control virtually all aspects of their lives. They seem to believe that the money, notoriety and power that come with success on a big stage will enable them to avoid the problems that the general public experiences in everyday life. That is often true. Sometimes they can make problems go away with just a little money. On the other hand, occasionally, celebrities discover that they are caught in a quicksand that seems inexorably to suck them in with a tighter and tighter grip. Eventually, they face a fight to survive.

Traditionally, professional athletes relied on money, connections and/or a forgiving public to get through a crisis. Sometimes that doesn't work anymore, especially in personal and family matters, as several politicians and ministers have discovered in recent years. Depending on what transgressions may have occurred, athletes may face the end of a marriage, or other consequences. As great a loss as that may be, it can get worse. Celebrity athletes can also face embarrassment brought on by an ugly divorce, which can end up costing tens of millions of dollars, or more.

When a crisis arises, the first response, after the initial denial, is to try to keep everything under wraps so the disputes and allegations are not exposed to the public. If it looks like the issues won't go away, the parties should consider utilizing Collaborative Law as the means of resolving the matter in a way that protects the interests of both parties.

Why is Collaborative Law preferable in sensitive cases? Here are some reasons:

1. It's a private process. High profile people, athletes, entertainers or otherwise, need good publicity, but can really be hurt by a messy divorce or custody fight. Collaborative Law provides a safe, private environment where issues can be addressed and solutions can be created without disclosing details to the public. Privacy is one of the fundamental elements of Collaborative Law.

2. The process encourages creativity. In fashioning solutions for various issues with unusual characteristics, the parties are not bound by the standard solutions that courts use. Instead, for example, they can agree to financial terms which may adjust depending on the athlete's income or contract status. They can also allow the parties the freedom to create unique schedules for sharing the children, taking into account seasons, travel and other variables.

3. The parties stay in control. In litigation, if the parties can't agree, they give up their control over the outcome and let a judge make a decision which is binding. In Collaborative Law cases, the parties make all the decisions jointly, sometimes with assistance of neutral experts. The negotiating process changes dramatically in a Collaborative case because both parties, both attorneys and the other professionals in the case all have a vested interest in not giving up and letting a judge decide. They work hard to keep coming up with new and different approaches. Someone with substantial assets, or the spouse of that person, may not be very comfortable letting a stranger make personal and life-changing decisions about them. In Collaborative Law, both parties keep their power to decide the outcome and both parties participate fully in the decision-making process.

4. Both parties focus on the needs and interests of the parties. Collaborative Law encourages a more intelligent approach to problem solving. Instead of taking arbitrary positions, such as demanding a 50-50 or 60-40 split of the property, the Collaborative approach starts with both parties evaluating their own situations and deciding what their underlying needs, interests and goals are. It's a more comprehensive approach than how traditional litigation negotiations are done and the result is a plan that is geared toward the important issues for each party.

5. Experts are used as neutrals throughout the process. In Texas Collaborative Law cases, we usually bring in a therapist and a financial advisor to help with the parties. In a case with special aspects, such as a celebrity athlete being involved, other specialized neutral experts can easily be incorporated for specific needs, such as tax planning, children's issues, retirement planning, investment management, etc. In litigation, if those experts are used, each side normally hires their own expert and there's usually a battle of the experts at trial, at substantial expense to the parties.

Let's hope that the next time a professional athlete faces a divorce after some personal failure, that the athlete and his or her spouse are aware of Collaborative Law and choose to use it as the problem-solving process for ending their marriage. There have been too many high profile ugly celebrity divorces. It's time to take divorce "to the next level", to borrow a term popular with athletes and coaches, and to work Collaboratively.

How to Prepare for a Collaborative Law Case

2009-10-21T08:49:00.000-07:00

I recently read a post on a business news blog that discussed how to deal with the distractions presented by the Internet. The article described the common problem of starting out researching one topic and then drifting from topic to topic, but I digress. The writer had some interesting suggestions on how to stay focused on what you are looking for, and I thought the ideas, simple as they are, were equally applicable to Collaborative Law cases. So, with a nod to the Harvard Business Blog, here are some common sense things anyone and everyone should do to prepare for, and work through, the Collaborative process.

1. Sleep well: We all know that we operate better physically and emotionally when we are well rested. If you are having trouble sleeping, get some help so you can be alert when you need to be.

2. Eat well: A lot of people lose weight going through a divorce, but they often do it by not eating because they have lost their appetite. While that is often normal, you know that you cannot operate at top efficiency if you are hungry or if you are not eating properly.

3. Minimize stress and anger: One reason we bring in a neutral mental health professional is to help both parties deal with the stress and the variety of emotions they experience. We recognize that Collaborative Law is a difficult process and you should keep in mind that it usually doesn't always go smoothly or easily. Everyone starts out wanting to be nice, but people can get tired and frustrated as we go through the process.

4. Watch out for time wasters: We try to have an agenda for each joint meeting and we try to stick to it. Some of the worst problems that arise in Collaborative cases occur when the participants get off the agenda and start on topics that were not planned for in advance. Staying on the agenda means that everyone can be prepared for the discussions and actions that need to take place. It also means that the meetings can end on time.

5. Work smarter, not longer: There are good reasons why we normally schedule meetings to be 1.5 to 2 hours long. The parties sometimes ask to extend meetings so we can finish up the process sooner. We have occasionally worked longer than 2 hours in a session and my experience is that those meetings often become counterproductive because everyone becomes tired. Once people start to get tired, they either shut down or (more often) become argumentative and angry. We not only lose momentum, but we sometimes lose the progress we had been making. We are better off coming to meetings with an organized agenda that we are all prepared for.

We have to keep in mind that Collaborative Law is not a one-meeting, quick process. There will be a series of meetings and everyone will get tired during the process. The more prepared and relaxed we are going into the process, the easier the process should be for us. As you can see, there's no magic here, but you will benefit by trying these easy steps.

Stop Re-living Someone Else's Past!

2009-09-02T22:03:00.000-07:00

Tracy Stewart is a CPA in College Station and a very active neutral financial expert in Collaborative cases. She is also a very good writer and produces an excellent blog, the Texas Divorce Finance Blog. She mixes common sense, good financial advice and very appropriate suggestions for Collaborative cases. She recently posted about a common problem that many people face. No matter how many times attorneys and other professionals tell clients not to listen to what their well-meaning family, friends and even strangers want to tell them about how to act in a divorce, the easiest course of action usually seems to be to ignore the professionals' advice and do what the amateurs suggested.

I do my best to make it clear that such a course of action is almost always a bad decision, but Tracy really makes the case in a way that can't be misunderstood. Here's her excellent post:

"Not infrequently, I hear people tell me about the divorce advice they are absorbing. This advice comes from people they trust and believe.

"My friend, who’s been through a divorce, told me I need to hire the meanest attorney I can find so I can crush my nasty husband/wife.

"My friend, who’s been through a divorce, told me to withdraw all the money from our savings account before my wife/husband does it first.

"Do not allow these people relive their divorces through your life and at your emotional and financial expense. If you must engage in such conversations with them, keep it restrained to a pat on the head/hand/shoulder and murmur, 'There, there. It must have been an awful ordeal for you'. But do not get take their advice. Their divorce is not your divorce and vice versa.

"Normally, they are not divorce professionals. (Even if they are, they are not objective.) They don’t have a thorough understanding of marital dissolution law, divorce finances and the relationship nuances of your crumbling relationship.

"Not infrequently, I see people go through senseless emotional turmoil, wasted time and ill spent money in their efforts to follow their friend’s sage advice. Of course, you can have girlfriends or buddies with whom to drown your sorrows or cry over coffee. But do not take their advice. Seek professional advice.

"Remember: You are not divorcing your friend’s ex-spouse."

Advice from friends and family is an abundant commodity during a divorce. Sometimes it's good, and it's given with the intention of helping you, but following the advice can conflict with the strategies that your professionals are using for your case. You should keep in mind that your shadow advisers are not in charge of the case, they don't have the legal or technical knowledge that your professionals have and they don't know how their suggestions fit in, or conflict with, your overall case strategy. It's fine to pass along to your attorney or other professional the golden nuggets of information you hear, but let the professional decide whether to implement the suggestions. Your focus must be on taking care of your case rather than validating someone else's leftover strategies from their divorce.

The Uniform Collaborative Law Act

2009-08-01T22:05:00.000-07:00

As the Family Law Prof Blog recently pointed out, one more major step has been taken to anchor Collaborative Law into our legal system. The Uniform Law Commission voted on July 15, 2009 to adopt the Uniform Collaborative Law Act. The U.L.C. is a national organization that studies selected legal issues, drafts proposed statutes, debates the proposals and then adopts or turns down the proposed acts. After a little fine tuning, the adopted act is sent to the American Bar Association which is asked to endorse it. If that happens, the act is latter submitted to the state legislatures for them to consider adopting it in each state.

In Texas, the proposed new uniform law will make very little difference. We were the first state to pass a statute that defined Collaborative Law and explained how it would work. A few other states have passed similar statutes. Coincidentally, Harry Tindall of Houston was one of the leaders in getting the Uniform Law Commission to approve the new act, just as he was the leader of the effort to get the original Texas statute passed by the legislature. We all owe a lot to Harry for his leadership and hard work.

The real importance of the the new uniform act is that there is now a common approach to the process which should be presented to all the states that don't yet have a Collaborative Law statute. This adds a little more legitimacy for the process and boosts the chances of other states formally acknowledging the process. Hopefully, another result will be more public awareness and more people taking advantage of the opportunity to take a more civilized and effective approach to settling disputes.

Updating the Three R's

2009-07-15T21:19:00.000-07:00

I have just run across a very interesting and thought-provoking blog called the JustDivorceBlog, which is written by Marie Fahnert of Chicago. I highly recommend that you spend some time reading her posts. You will come away with a fresh perspective and some new ideas about life, which is actually very helpful for someone involved in a divorce. I actually think the blog would be interesting reading for anyone, so give it a chance. Anyway, here's a post she had recently that I really liked. It can provide great guidance for anyone in a stressful situation.

"Dalai Lama's (divorce) lesson:

"Take into account that great love and great achievements involve great risk.
When you lose, don’t lose the lesson.
Follow the three R’s:
- Respect for self.
- Respect for others.
- Responsibility for all your actions.

—14th Dalai Lama of Tibet
via On Her Way...........................................

"My Note: I can't stress enough how important the 'three R's' are reaching a successful outcome in your divorce. However, it is sometimes difficult to follow the rules during times of stress. When you find it difficult to follow the 'three R's' you might consider yoga, meditation or, if need be, a counselor. The rewards of following these rules will certainly be worth the effort. "

Although we often think that Collaborative divorce is nicer and more civilized, it is still very easy to fall back into old habits of blaming or attacking your spouse. Your feelings can get just as hurt in a Collaborative case as in a litigated divorce, if you let them. You do have the power to choose your response to aggravations and difficult times, but few people have the presence to stop themselves from engaging in an automatic reaction to a situation.

If you keep in mind what the Dalai Lama said, and show respect for yourself and for others, and take responsibility for your actions (don't blame others or circumstances), you will have a much easier time in your divorce. That will be appreciated even in a Collaborative divorce. And you will probably get a better result.

Have a Happy Father's Day!

2009-06-20T20:13:00.000-07:00

One interesting aspect of the blogosphere is the opportunity to read about different laws in different states. A consistently well-written blog is the Ohio Family Law Blog written by Robert L. Mues. He has a timely post about the history of Father's Day and then describes how different counties in Ohio have different rules for fathers having possession of their children on Father's Day. I'm always interested in history, so here's what he wrote about the history of Father's Day:

"The third Sunday of June has become known as Father’s Day just as the second Sunday of May has become known as Mother’s Day. On that 'special' day in June, Fathers in the United States are feted with cards, gifts (often ties and wallets), meals especially prepared for them or 'dinner out' at their favorite restaurants, as well other special treats such as the preparation of a favorite dish or dessert prepared at home.

"From my readings at various websites, the origin of Father’s Day is not entirely clear. Some say it began with a church service to honor Fathers in Fairmont, West Virginia, on July 5, 1908. Others believe that Ms. Sonora Smart Dodd of Spokane, Washington, came up with the idea or plan to honor Fathers in 1909 while she listened to an earlier church service wherein Mothers were honored and praised. Ms. Dodd’s Father, a veteran of the Civil War and a 'single parent', had successfully raised six (6) children following the premature death of his Wife.

"Although the movement to honor Fathers began over one hundred (100) years ago, it took many years for this country to make this occasion an official holiday. While citizens supported the concept of Mother’s Day with pride and enthusiasm, the idea of Father’s Day was at first met with laughter and satire. While President Woodrow Wilson 'approved' the concept of an annual Father’s Day in 1916, it was not until 1924 when President Calvin Coolidge declared the day to be a national event. Thereafter, Father’s Day was celebrated but was not made a federal holiday until 1966 when President Lyndon B. Johnson issued a proclamation declaring it to be so. Later, in 1972, President Richard Nixon established Father’s Day as a permanent holiday to be celebrated on the third Sunday of June of each year."

Some readers may be a little familiar with that history, but it's not widely known. From a Collaborative Law perspective, what is really useful from the post is the description of the variations in how Father's Day is handled in different counties. Texas has a uniform state standard possession schedule which covers Father's Day, Mother's Day and most other major holidays. While the Texas standard possession schedule often works out well for both parties, it should be noted that our schedule is not followed by other states and doesn't have to be followed in Collaborative Law cases in Texas.

What Texas and other states do in possession orders, child support and even property division can be considered by the parties in a Collaborative case, but the Texas parties should always remember that Collaborative Law gives them the freedom to make their own rules to meet their own needs and circumstances. Be informed and be creative!

Preconditions to Using Collaborative Law

2009-06-02T11:31:00.000-07:00

Let me be clear that I have a bias favoring the use of Collaborative Law in settling family law disputes. When there is a hesitation by the other side in a case, I get concerned.

On occasion, as I have talked with Collaborative lawyers about starting a new case as a Collaborative divorce, the other attorney has suggested that s/he wasn't sure the case would be a good one for Collaborative Law, but we could try it if my client would first: give up custody of the kids, move out of the house or give the spouse a sum of money. Since each of those was the biggest issue in each respective case, my clients didn't see the value in conceding that issue and then using Collaborative for whatever was left. In those cases, I couldn't talk the other attorney into dropping the precondition and the other attorney didn't seem to see anything wrong with that approach.

Custody, use of the house and getting access to money are common issues that are dealt with over and over in Collaborative Law. They can be tough issues in any kind of approach. Judges and juries often have trouble making decisions on those topics and they can be tough issues even in the Collaborative Law approach. Nevertheless, I wouldn't hesitate to use Collaborative to work out agreements on those issues. For all the reasons why we are committed to Collaborative, it is usually a superior way to resolve these legal issues.

From my perspective, the real reason why some attorneys insist on preconditions to using Collaborative Law is that they just aren't fully comfortable with the process and aren't convinced it can work with difficult issues. In other words, it's a lack of commitment to the process. Sometimes, attorneys are so integrated into positional bargaining that they can't let go of the security of grabbing a position and holding on. When we are "brought up" doing positional negotiating, interest-based negotiations may seem a little scary. Attorneys may feel out of control when they don't have clear cut positions they can claim and hold in negotiations.

So, what's a person to do?

If you go to see a Collaborative lawyer and that lawyer starts telling you that the case really isn't appropriate for Collaborative Law, I suggest that you challenge the attorney to explain why. And I suggest that you get another opinion from another Collaborative lawyer.

Unfortunately, some attorneys claim to be a trained Collaborative lawyer when they really aren't or when they don't really practice Collaborative Law, and those attorneys use the ads or web site sections to bring in potential clients whom they then tell that Collaborative Law is not appropriate for their case. Any time you are told that Collaborative Law won't work in your case, you should get a second opinion from another Collaborative lawyer.

Sometimes, after discussing the proposal to use Collaborative Law with the attorney, it's the client who wants to impose a precondition before agreeing to use Collaborative Law. In that instance, it's clear that the attorney just hasn't explained the process very well or the client perceives that the attorney isn't real comfortable with the process. If the attorney isn't sold on Collaborative Law, the client probably won't be either. Again, a second opinion would be advisable.

The bottom line is that agreeing to use Collaborative Law only if a precondition is met is unacceptable. If you want to use the process, keep searching until you find a truly committed and experienced Collaborative lawyer who will help you.

Negotiating Effectively: Why You Shouldn't Hurry

2009-05-14T22:16:00.000-07:00

One of the most common reasons some people sign up for a Collaborative divorce (or other family law matter), is that they expect it to be a fast process. Relatively speaking, that's an accurate expectation. Compared to how long a traditional divorce takes, a Collaborative divorce is normally much faster, although it isn't always. Most can be finished in three to four months, some sooner and some later. In contrast, a litigated divorce in Tarrant County which is resolved at trial or shortly before trial (when mediation often occurs) will usually take at least a year to finish, and it's not unusual for a divorce to take longer.

Unfortunately, many people going through a Collaborative divorce start feeling the process is slow and bogged down if it doesn't settle in two to three months or if it just requires several meetings. As a result, they start looking for shortcuts and ways to move the process along faster. When one side gets very anxious to settle the case and get it over with, they will usually experience one or more of the following problems:

1. The anxious party tends to give away too much. It is quite easy for the party who isn't ready to divorce, or who just isn't in a hurry, to start to drag their feet and slow down the process. That increases the anxiety level of the spouse in a hurry, which normally leads the hurried spouse to sweeten the pot and offer a better settlement to the other spouse. Over and over, I have seen one spouse maintain a position on settlement terms and refuse to budge, leading to the other spouse moving closer and closer to what the first spouse demanded. Sometimes, the anxiety is self-imposed and sometimes it comes from an exterior source. Whatever the reason, the person making the concessions is often making a mistake and offering more than would be necessary without the anxiety.

2. Hurrying reduces the amount of time to conduct due diligence. When on or both of the parties want to move quickly through the process, the attorneys and other professionals may not have the time to fully explore the facts of the case. Even when the parties both think they know all the issues and both think they understand the information relating to the issues, they may be wrong. It is very common for the parties to not understand various technical issues about assets and debts. For example, they often have mistaken ideas about what to do with retirement funds. The attorneys and the financial neutral need time to gather records and analyze them. Similarly, a child specialist may need some time to explore the issues about sharing time with the children. A superficial review of either property or kid issues can lead to serious problems later on.

3. Another problem is that the parties tend to lose sight of their interests and focus on positions. Often, when the parties get in a hurry, they become very willing to skip over setting and explaining their goals. Even when they have identified their goals, needs and interests, they sometimes stop thinking and talking about them when there is pressure to move quickly through the process. When that happens, they inevitably fall back into positional bargaining, relying on traditional, arbitrary guidelines or percentages, instead of analyzing how to best meet each other's needs.

4. Hurrying usually is associated with reduced listening to the other side. Listening to each other is one of the key values of Collaborative Law. Sometimes just seeing improved communication skills provides a great deal of satisfaction. When a party, who has not been listened to during a marriage, experiences discussions where the spouse begins to listen and speak more respectfully during the Collaborative Process, that party will feel much better about any agreement and it will be easier to reach an agreement. Hurrying devalues listening. The objective becomes primarily to reach an agreement, and true listening bogs down the process. The result is that the parties fall back into old communication patterns, and that usually doesn't emphasize good listening. In other words, the parties stop listening to each other and just try to negotiate the same ways they used to argue. That leads to skipping steps in the Collaborative process and sometimes overlooking options, idea and analysis of facts.

5. The other side may get upset by feeling pressure to finish early, making agreement less likely. Many people, when negotiating, will become very resistant if they feel like they are being pressured into something they don't fully understand or which they may not fully agree with. Some people just automatically start opposing something when they feel a lot of pressure to decide quickly, especially if they are a little uncomfortable or if they don't trust the other party.

As frustrating as it may be for someone going through a divorce, it is usually necessary for one party or the other to slow down some during the process so they can advance at the same pace as their spouse (or the other party). Trying to rush the other party can cause delays or failure to reach an agreement.

And by the way, in a traditional litigated divorce, if one party wants to slow down the process and drag it out for any reason that's easy to do. Collaborative Law is not worse than litigation, in terms of speed. In reality, Collaborative Law generally is a faster means to reaching an agreement than is litigation.

What if the Lawyer Tries to Talk You Out of Using Collaborative Law?

2009-05-03T21:48:00.000-07:00

Answer: Check qualifications and experience and then get a second opinion.

It's true that not every case is appropriate for Collaborative Law, and the process may be overkill if virtually everything is already agreed at the outset, but when you visit with an attorney about representing you, the attorney should almost always explain at least a little about Collaborative Law. There is a range of options available to resolve legal disputes and Collaborative Law is often the best choice.

For some situations, Collaborative is not an appropriate option. If a party is mentally ill or has untreated drug or alcohol issues or has unrealistic expectations, the process may not work out well. If treatment has been received and the treatment plan is being followed, the professionals can make a judgment call about whether Collaborative may work. There may be legitimate reasons why Collaborative Law is not recommended. Even though I firmly believe in and encourage the use of Collaborative Law in virtually every case I consider, I have told clients that it might not work in their case, based on some of the concerns mentioned. In addition, if there is already an attorney on the other side of the case and that attorney is not a Collaborative attorney, then it is virtually impossible to use the Collaborative process.

Unfortunately, however, it appears that sometimes attorneys advertise that they believe in, and practice, Collaborative Law, when they really don't like it. Generally, those attorneys have not been to a two-day basic training. They may have attended one or two short talks about Collaborative Law, but they haven't had the extensive training needed to "get it". They realize that more and more clients are educating themselves about various divorce processes and have become aware of Collaborative Law. Some attorneys have just a superficial knowledge of Collaborative Law and use that to dissuade clients from using the process.

If you go see an attorney about a divorce, for example, and you ask about the possibility of using Collaborative Law, and then the attorney immediately starts telling you why you can't or shouldn't use the process, or why it wouldn't work in your case, you should do two things. First, ask the attorney to tell you about all the Collaborative Law training he or she has completed and about the number of cases he or she has completed in the Collaborative process*. Second, go get a second opinion from another Collaborative attorney to find out if the second attorney agrees.

*Good answers:

At least a two-day basic training, followed by at least one seminar or conference a year sponsored by the Collaborative Law Institute of Texas or by a local practice group.
At least 3 or 4 cases completed, or better yet, 20 to 30 or more. An attorney experienced in Collaborative Law can make good judgments about the suitability of cases for Collaborative Law.

Parties seeking legal representation in family law matters deserve qualified and fair legal advice about their options. If you have any doubts about the advice you have received, please ask the attorney about his/her education and experience in Collaborative Law and then get a second opinion to protect yourself.

How to Find the Best Collaborative Lawyer in Tarrant County (or anywhere!)

2009-04-18T14:23:00.000-07:00

For some of us, our competitive nature won't give up, even if we decide to participate in the Collaborative process. That nature shows itself when someone commits to doing a Collaborative divorce, and then begins to search for "the best Collaborative lawyer" in Tarrant County, or wherever they live. If that's what you're looking for, I have bad news and good news for you. The bad news is that it's hard to really tell who "the best" is. The good news is that almost all Collaborative lawyers are really good at what we do, and in addition, we can all get help by using mental health professionals and financial professionals. Let me elaborate.

First, the bad news: It's hard to tell which Collaborative attorneys will be the best. Just like in litigation, there's no overall objective ranking service to indicate who's the best. The truth is that an excellent Collaborative attorney may be a great match for you, but not work out well for your friend or neighbor or relative. The opposite is also true. An attorney who is great for someone else may not work out well for you. It really comes down to chemistry.

There are several things you can do to find a Collaborative attorney who would work well with you.

Ask about their experience. Attorneys can tell you about the number of cases they have handled and they can tell you whether they have worked cases with issues similar to yours.
Find out how much training the attorney has had, and whether they have recently had training. Collaborative Law is such a new process that attorneys need a lot of training and need to refresh their Collaborative training at least once a year.
Another indicator to check on is whether the attorney has trained other attorneys in Collaborative Law or spoken to different groups about it.
Ask the attorney to explain how the Collaborative process works. The attorney should be able to clearly explain the process and discuss how your issues could be resolved with the process.
Make sure the attorney's communication style is comfortable for you. Everyone has their own communication needs and style. Divorce is a stressful enough time just by itself. Be sure that you feel good and feel listened to when you talk with your attorney.
Recommendations from friends, attorneys and other professionals can be helpful as a starting point -- just be careful to consider the comments above and evaluate each attorney.
You and your spouse do not need to hire an attorney just because that attorney is in the same practice group with the first attorney selected. All attorneys in Tarrant County represent clients from all over the county, so you can choose anyone you wish.

Now, the good news: we've got backup. In Tarrant County, there are many well trained Collaborative attorneys and almost all Collaborative divorces are worked as a team effort. We have learned over the years that the process works much better when we bring in a mental health specialist and a financial specialist at the beginning. The mental health professional meets with the parties before the first joint meeting and that helps the parties know what to expect. It also helps all the professionals learn about the issues that are important to both sides.

Also, don't worry if both the attorneys don't have the same level of experience in the Collaborative process. As long as both attorneys have at least a two-day basic training and some recent training, there should be no problem. Part of the Participation Agreement that both the parties and their attorneys sign at the outset says that neither party will take advantage of each other or hide information or fail to openly and honestly cooperate. (There's no such agreement in litigated cases.) That means that if an attorney made a mistake in the case, the other attorney would help the first attorney correct it. As long as at least one attorney is experienced, the Collaborative process should work out.

The bottom line: There is no need to find the single best Collaborative attorney, which is lucky because there's no way to determine who is the best. But there are number of things that parties can check out about prospective attorneys when deciding who to hire. In the end, chemistry may be the most important ingredient in choosing the right Collaborative attorney for you. Pay attention to your gut feeling and how well the attorney communicates with you. Trust your attorney, but also take advantage of the other professionals involved in your case. They all want you to be successful.

5 Ways Collaborative Law is Like the Space Program

2009-04-03T21:13:00.000-07:00

We recently had another successful launch of a space shuttle, but you may not have noticed it. We are near the end of the shuttle phase of the U.S. space program, about to switch to other vehicles, and we don't tend to pay attention to take-offs and landings as much as we used to. It's probably not a good idea to take space travel for granted yet, but people have accepted it as a normal part of life. While there are still innovations to be expected in the future, we are pretty comfortable with how space travel happens now.

After the recent launch, I began thinking about similarities between Collaborative Law and the space program. That may seem like a very strange comparison, one that doesn't immediately jump to mind, but there are some legitimate common features. Here are some I noticed:

Both use old skills and equipment for new purposes in other fields. In the space program, a lot of the equipment was converted from wartime use to peaceful purposes, such as rockets and guidance systems. In Collaborative Law, we have begun to use neutral specialists from other fields to work with both parties to help them reach appropriate agreements.

In both fields, we converted former fighters into peaceful leaders. The original astronauts were trained fighter pilots in the military who converted into peaceful space pilots. Most Collaborative lawyers are former litigators who learned and practiced trial skills. Sometimes, attorneys have trouble converting their focus to a peaceful process, but it will happen with experience.

Both programs depend on a lot of cooperation and a blend of many different skills. The space program is a very complex system with many interrelated contributors around the world. Collaborative Law requires cooperation between two parties, their lawyers and usually some other neutral professionals. The process is effective because everyone works together and contributes some part to creating successful negotiations. Communication skills are improved by the use of mental health specialists. Financial and parenting decisions are improved though the use of neutral experts in each field.

The space program is a peaceful endeavor and peace is the essence of Collaborative Law. NASA is a civilian agency that oversees the U.S. space program and the focus has been on peaceful advances in science and transportation. One of the main attributes of Collaborative Law is that it is much more peaceful than the destructive processes inherent in family law litigation. Going to trial, cross examining the other parties and witnesses and focusing on events in the past are all elements of the litigation approach that places little value on kindness, civility and family relationships. Collaborative Law provides a safe, creative and effective way for both parties to achieve their most important goals without tearing each other up.

Some day, hopefully soon, neither space travel nor Collaborative Law will be a big deal. They will both be the norm. People will be able to travel to far away planets and it will become common. Probably sooner than that happens, we expect Collaborative Law will become the primary method of resolving disputes. Now, these are both considered somewhat visionary, but that will change before too long.

Stay tuned. Collaborative Law has been launched and is coming more and more into view!

Customizing Child Support

2009-03-24T22:55:00.000-07:00

The Traditional Approach

Most, if not all, states now rely on formulas to calculate child support in a uniform manner for the child support cases filed within their state. In Texas, for example, our primary formula is 20% of net income resources for 1 child, 25% for 2 children, 30% for 3 children, etc. Some other states base their calculations on gross income. They may also use different percentages. Texas also has adjustments (different percentages) when there are children in different households and there are child support obligations in each household. There may also be variations from state to state about what deductions are permitted before the child support is calculated and about what resources are to be considered possible funds for child support.

Traditionally, one parent pays child support to the other parent each month, regardless of how much time the child spends with each parent.

In Texas Collaborative Law cases, we often explain how child support is calculated under Texas rules, and we can also look at other states' statutes, as well. BUT, we don't want the parties to feel like they need to follow the statutory formula of Texas or any other state. On the other hand, the parents should feel free to examine and consider the child support arrangements of any state.

New Ideas

To open up the discussion further, here are three other suggestions of approaches that parties might take in Collaborative cases, especially in cases where the parents end up with close to equal time with the child, a scenario that is becoming more and more common.

1. Split the difference. The parties each calculate how much child support he and she would pay under the Texas Family Code. Whichever parent has the greater income would pay to the other parent the difference between the two amounts of child support.

2. Pay half of the expenses. Some parties get along well enough that they can each pay half of specified expenses. Sometimes the list of expenses includes items the court would not, or could not, order, such as religious expenses or college expenses. Generally, parents can agree to share any expenses that they want to.

3. Pay a proportionate share. If there is a significant difference in income between the parents, they could agree for each to pay a proportionate share of specified expenses. For example if wife made $6,000.00 per month and husband made $3,000.00 per month, wife might pay 2/3 of the expenses and husband could pay 1/3 to match their comparative incomes.

There are obviously many other possible formulations for child support. The most important point here is that the parties should not feel bound or limited by traditional or statutory schemes for calculating child support. Spending time brainstorming at a joint meeting can lead to creative, flexible and satisfying child support arrangements.

The lesson to be learned: don't limit your options!

Getting What You Want -- First Ask for It

2009-03-23T07:08:00.000-07:00

Today I saw the weekly newsletter that Francie Cooper, a local life coach, publishes. She also has a blog. The newsletter had an interesting article about the need to ask for something that you want. She says it's the first step in attaining your goals and meeting your needs. Asking for things is also a key part of the Collaborative process.

Asking for things occurs in two ways in a Collaborative case: first, in setting up their goals, the parties are identifying and asking for what they want; second, to get specific agreements, the parties themselves must ask for what terms they want. In contrast to litigation, the parties speak for themselves, rather than let the attorneys do the talking in negotiations.

Francie illustrated her article with two examples that also illuminate the Collaborative process. In one example, a woman wanted a specific kind of car at at specific price. In the other example, Francie's son figured out he needed more money for college than he had planned on. Each story had additional elements that also related to Collaborative Law.

In each case, the person started off with specific goals.
Each person followed up by gathering information and organizing it.
The information was presented to the other party in the negotiations in a persuasive manner, the person asked for what she or he ultimately wanted and there was a discussion which lead to agreements.

It sounds much like Collaborative Law and shows that the basic structure is sound.

Litigation
One of the main differences between Collaborative Law and litigation is how Collaborative Law focuses on the goals of each. In litigation, where there's negotiation, it is usually positional bargaining instead of interest-based negotiation which is the basis of Collaborative Law. In litigation, in a property division discussion, most times the talk is about what percentage of the assets and liabilities each party will receive. Each side often stakes out an extreme starting position so that they can compromise and end up where they want to be. In other issues, there are more or less automatic decisions on some issues like setting child support and a visitation schedule. In each case, there's very little discussion.

Collaborative Law
By contrast, in Collaborative cases, the focus is on how to achieve various goals. Once the goals are established, the parties gather information and then go through a brainstorming process to generate options. After evaluating the options, each party asks for what they want to help meet their needs. Instead of automatic formulas to be applied, there is a genuine discussion that leads to an agreement. The parties must speak up for themselves and ask for what they want. There is a full discussion of the various options and the parties generally reach a conclusion that they are both satisfied with.

Is Collaborative Law Really Speedier Than Litigation?

2009-03-16T21:08:00.000-07:00

Usually, it is, although it's hard to know. Comparing two litigated cases is hard to do because of so many different variables in each case: different judges, different emotional states of the parties, different facts, different histories of the parties, different motivations, and so on. Although people try to compare divorces all the time, the comparisons are not fair or accurate because of the differences in the cases. It's easy to find a few things the cases may have in common, but it's the differences than prevent the cases from being fair comparisons. For the same, and other, reasons, comparing a litigated case to a Collaborative case is inappropriate.

Having said that, I would still argue that Collaborative cases will usually be resolved sooner than the average litigated divorce that is contested. Collaborative Law cases would be counted as contested cases because the parties use the process to resolve issues that they have not been able to agree on.

Collaborative Law cases could take months and months to complete, if the parties want to take that long, but the "average" case will usually take no more than 4 or 5 months, and often, quite a bit less. In Tarrant County, and probably most large urban counties (except Harris, with the famed Rocket Dockets), it usually takes at least a year for a contested case to be resolved.

Nevertheless, a large number of Collaborators seem to end up feeling like their cases are taking forever to resolve. There are several reasons for that, even where the cases are resolved much more quickly than they would be in litigation.

The parties to the lawsuit usually have no point of reference. The attorneys can easily imagine the amount of time that would pass as they experience the various routine stages of a contested, litigated case: filing, setting a temporary hearing, doing discovery, getting a scheduling order for all the usual steps, attending mediation and preparing for, and participating in, final trial. Attorneys know how long various steps take in litigation and what would be happening if the case were in litigation. On the other hand, the parties usually only know what they are experiencing in their case, so they don't realize that they are actually moving along relatively quickly.

The face-to-face negotiations are sometimes much more stressful for the parties than litigation where the attorneys do most of the speaking and work. Although meetings are usually limited to a maximum of two hours at a time, the meetings can be tiring and emotionally draining, although they are not always so. Stressful events seem to take longer than enjoyable ones.

Sometimes, the parties get bogged down in small issues and get frustrated. Experienced attorneys and a mental health professional will do their best to recognize the pace and the frustration and will try to keep the process moving forward. But, it will happen occasionally.

Parties often get frustrated because they see just one solution to some problems and the professionals in the case insist that the parties discuss other possible solutions. Many people who agree to use the Collaborative approach have a hard time following the "Roadmap to Resolution" that is often used to create solutions that are acceptable to both parties. The Roadmap includes steps that involve creating or considering multiple possible solutions before choosing one for the settlement. Some people, having forgotten the Roadmap, get frustrated and start to feel that the process is moving at a snail's pace.

The parties using Collaborative Law should keep in mind that they are not in a race. A speedy resolution is usually not one of the goals they come up with at the outset. Most of time, the parties are more concerned with such things as creativity, customizing solutions, maintaining privacy, keeping control over the process and maintaining family relationships.

If you are in a Collaborative case and start to feel like the case is really dragging, talk to your attorney or the mental health professional (if one is being used) about your concerns. In all likelihood, they will tell you that the alternative is a much slower process in their experience. And they would be right!

Can You Use Collaborative Law When There's Been Adultery?

2009-03-01T10:51:00.000-08:00

Yes. And it's interesting to see how differently adultery is addressed in litigated divorces and in Collaborative Law divorces.

Litigation

For the people who are just angry and want to fight for the sake of revenge or to punish their spouse, adultery becomes a convenient scapegoat to help blame everything on the other party. Even where there was no adultery, in some litigated cases, the spouse who thinks he or she was wronged still sometimes makes adultery allegations a central part of his/her case, despite a lack of proof. Unfortunately, we can't do anything about people operating contrary to facts, logic and common sense.

Sometimes, a party to a divorce becomes so consumed in punishing a spouse for marital transgressions that the divorce overwhelms the parties emotionally and financially. In one case involving an estate of about $200,000, the wife believed that her husband had a girlfriend. He denied it, but still offered 60-65% of the assets because he made a lot more than his wife did and he didn't want to fight. His wife refused and continued to fight. She fought for over three years, spent about $100,000 in attorney's fees, and she still ended up with about 60% of the assets.

There are cases where adultery undeniably has occurred, but that fact rarely makes a major impact on the divorce judge's decision, unless you happen to find yourself in front of one of the rare judges who puts an emphasis on it. The odds are against you making any difference in the outcome just because there has been adultery.

Collaborative Law

In a Collaborative case, the parties are focused on their goals and problem solving. In litigation, the focus is usually on what happened in the past, while Collaborative Law focuses on the future. Instead of rehashing past mistakes and bad behavior, Collaborators usually move on and try to find or create solutions. Many Collaborative cases have involved cases where adultery has occurred and both parties know about it. And those cases are almost always successfully resolved in the Collaborative process.

If a husband or wife is very angry and can't get over that to focus on his or her goals, then Collaborative may not be an appropriate option for that person. It does required some emotional maturity and getting past the anger stage of the breakup.

What can you do if you want to do a Collaborative divorce, but you are very angry?

Get some counseling for yourself to manage your anger and move forward emotionally.
Get counseling for you and your spouse. That can help both of you address common issues in a safe environment, prior to divorce negotiations.
Let some time pass. Everyone goes through several stages of grieving during a divorce, not always in the same order. Over time, perspectives and feelings change. At some point, you will be ready to work on the divorce without being consumed by anger and a desire for revenge.
Consult with a trained and experienced Collaborative lawyer who may be able to help you focus on goals that are more important than just retribution.

Don't be afraid to try Collaborative Law when there has been adultery or an affair in the marriage. There have been many successful agreements reached where the parties have been able to work together then and in the future.

Managing Finances in a Collaborative Divorce

2009-02-15T09:10:00.000-08:00

There's a new Collaborative Law blog in Oregon, the Collaborative Divorce Northwest blog that is off to a good start. It looks like it will be an interesting blog to follow. They have a recent post that is worth reading on the difficulties many people have dealing with finances in a divorce. The article is by a financial planner who obviously has worked quite a bit in divorce cases. It looks like her experience is similar to that of our financial professionals who assist in Collaborative cases in Texas. That post got me to thinking about some of the financial hurdles people face in going through a divorce.

In a divorce context, people confront several problems in working out a post-divorce financial plan: lack of knowledge, lack of experience and fear of the unknown.

1. Lack of knowledge. It is very common for the spouses to divide up the responsibilities in the marriage by having one in charge of the finances and the other in charge of the household and children. In practice, there is usually very little discussion or joint planning in finances for most or a large number of families. As a result, one spouse is usually somewhat in the dark. That situation is made worse by the fact that finances are getting more complicated and even a college graduate may have trouble keeping up with finances without having everyday involvement. When a divorce comes up, the uninvolved party usually feels very vulnerable because s/he doesn't really know what's there or what should be there.

2. Lack of experience. To compound the lack of knowledge problem, the uninformed partner usually doesn't have much experience in managing the finances. Once the divorce is granted, each spouse will have to be responsible for running his or her own financial life. Even after learning what they have, a spouse who hasn't been paying bills or making investments or other financial decisions usually starts out very insecure in that role. The party needs to learn what to do and obtain some experience in managing things.

3. Fear of the unknown. Aside from all the personal and emotional issues involved in the split up of a family, there is a lot of fear and concern about what the financial future will bring. For the financially less-experienced spouse, it may be hard to look confidently very far into the future. Even for the more experienced spouse, the future may be daunting, especially in times of economic turbulence.

How Collaborative Law Helps

In more and more cases in Texas, we are using a team model which includes an attorney for each party and then a neutral financial professional (FP) and a neutral mental health professional, all of whom have special Collaborative Law training. The two neutral professionals work with both parties, rather than for just one party. The FP is well aware of the issues outlined above and is trained to help resolve them.

The lack of knowledge is overcome by the parties sharing their financial information and then having the FP analyze and review it with both parties. We often prepare a joint financial summary and exchange documents so that everyone can see everything. The FP will answer questions for both parties.

The lack of experience can be dealt with by having the FP educate and train one or both parties as needed about how to manage the finances in the future. Financial professionals often help the parties learn to budget and to keep track of their expenses. Parties can also learn how to streamline bill payment, how to save money in different ways and how to avoid unnecessary expenses. Most importantly, the FP is available to answer questions for the parties.

The fear of the unknown can be mitigated by learning about the financial resources available and in making plans for the future that are tied to the goals each party established at the beginning of the process. There will probably be some concerns about the future, but the worrying can be reduced by having information available and learning new skills to control finances in the future.

Although not all problems can be anticipated, solved or prevented, Collaborative Law provides a great opportunity to manage financial issues that are usually left unattended to in a litigated divorce. Knowledge, learning and planning, facilitated by a neutral, trained financial professional, can help minimize future financial problems for the parties.

Abe Lincoln's View of Litigation

2009-02-14T07:59:00.000-08:00

"Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser -- in fees, expenses, and waste of time."

Well before Collaborative Law was even a concept, Abraham Lincoln had strong opinions about litigation. He still makes a lot of sense about 150 years later.

Can't Afford to Divorce

2009-01-29T21:16:00.000-08:00

It seems that more people are staying together because they really can't afford to divorce. A recent newspaper article from Birmingham, Alabama discussed the situation there. Although there is talk of that here in Texas, there have been no local in-depth surveys or studies. Nevertheless, the economy undoubtedly is having an impact. There are reports in Tarrant County that the number of new divorce filings is down. Here are some of the reasons why this is happening.

Can't afford the cost of a divorce. Divorces are expensive for everyone. Of course, the cost is often related to amount of fighting going on, but even a minimal amount of legal work can be expensive.
Can't afford to support two households. Doubling the house payment and utilities can be overwhelming when most people tend to live up to their income limits regardless of how much or how little income they have.
Lost a job. There have been overwhelming numbers of workers who have suddenly lost their jobs recently. Certainly, a job becomes the top priority, and the loss of a job creates huge financial and emotional stress for an individual and a family.
Lost retirement. While housing values are falling and people are losing their jobs, almost everyone who has retirement funds has suffered a substantial loss. It's the kind of loss that sends retired people back to work and puts off retirement for others. When you start talking about dividing up some significantly reduced retirement accounts, there may not be much retirement left after divorce.
Can't sell the house. It used to be that retirement funds and house equity were often the biggest assets of couples. With retirement funds shrinking, there's just not much left for some people because house values have also gone down and it has become much harder to sell and house.

So what's a person to do if he/she wants a divorce?

Consider staying together. Get some counseling and work together on common goals. Don't expect overnight solutions, but the greatest value may be staying together if both parties commit to working on solving their problems.

Try Collaborative Law. The problems outlined above call for creative solutions. The standard approach of dividing everything down the middle may not be appropriate or leave the parties with enough to get by. Following the Collaborative problem-solving process, starting with analyzing each party's needs and goals, a couple can be guided to to some creative solutions to adapt to the financial reality. In Tarrant County, and most of Texas, we utilize a mental health professional and a financial professional to help the parties and that improves the outcomes for the parties.

Borrow funds. If divorce is necessary and urgent, maybe the best course of action is to borrow the funds to pay for it. You can approach family members or maybe you have credit somewhere that you can use. Remember that you will have to pay back the borrowed funds, so spend your money wisely. Investigate whether you think it will be more to your financial advantage to take the litigation approach or to use Collaborative Law. Be sure to discuss your situation with a trained Collaborative lawyer before you decide.

Just wait. It's sort of the opposite of the Nike slogan. If you can't afford to divorce, if you can't borrow funds and if you can't figure out how a Collaborative divorce could save you money, then maybe you should wait.

What Does a Collaborative Lawyer Do? -- Part 1

2009-01-05T22:13:00.000-08:00

In much of Texas, and especially in Fort Worth and Tarrant County, Collaborative cases are handled by lawyers who use the team approach. Collaborative lawyers are usually the entry point for parties who want to use the Collaborative process to settle their divorce or other family law matter. The lawyers explain the process to prospective clients. If the client is accepted for representation by a Collaborative lawyer, the lawyer usually will help the client provide enough information for the spouse to decide whether to proceed Collaboratively. If both parties end up with Collaborative attorneys, the attorneys normally will decide which neutral mental health professional to bring in to help the parties with communication issues. They also decide on a neutral financial advisor for the parties.

With all that help, some people might wonder if they really need a lawyer, and if they do use a lawyer, what role the lawyer would play in the case. Here are some of the ways Collaborative lawyers work with their clients.

1. Provide explanations of the law. The attorney will review and discuss applicable law with his or her client to make sure the client has any necessary information about Texas law. The parties are not limited to what the law provides, but sometimes the Family Code provides a good starting point. In addition, the attorney may be able to correct some mistaken information about Texas law and that can help the parties start with common ground. Sometimes it is also helpful to learn about the laws or other states and the federal government. That can help generate ideas for solutions.

2. Help you formulate your goals -- dig below the surface. The goals are extremely important to the Collaborative process. Identifying goals forces each party to think about the future and decide what will really be important to them. Goals provide a target and focus for the decision-making process that is followed in Collaborative Law. Sometimes an attorney must push a party to really explain why some action is beneficial and that helps the person clarify his or her thoughts about an issue so that the right things are pursued. The goals need to be high level, but somewhat specific objectives. Goals can be revised after the process is underway, but it really helps to make a strong effort at the outset to establish meaningful statements of goals.

3. Prepare you for meetings. Meetings are not spontaneous. They take place at scheduled times and places and follow a set agenda. The lawyers each tell their client about what is expected to happen. Knowing the subject matter in advance allows the parties to think through most of the issues they will be facing. Plans can be made for dealing with tough issues. Questions can be asked and answered privately. We follow a pretty regular format for resolving issues and the attorney can explain where we are in the process. Understanding what is going on helps create a safe and productive atmosphere for problem solving.

4. Review what happened at the meetings. After each joint meeting, the attorneys meet with their clients separately and review what went on at the meeting. The lawyers want feedback about how the meeting worked out for their clients. The attorneys can answer questions and explain how the process is working out, from the lawyers' perspective. Sensitive issues for both sides can be identified and strategies worked out for dealing with them. If something has been overlooked or not dealt with satisfactorily, the issue can been added to the next joint meeting agenda.

5. Work with the other professionals between meetings. It is sometimes necessary for all the professionals to have discussions between the joint meetings if there are any crises or significant questions that have arisen. They sometimes meet in person, talk by conference call or use email. They almost always meet before and after each joint meeting and will communicate as needed between the meetings. All of that discussion helps prevent surprises and make the meetings much more productive.

For attorneys in Collaborative cases, their roles are different from the way they operate in litigated cases, but the assistance is crucial in helping the parties reach an agreement. The next posting will add 5 more things attorneys do in Collaborative Law cases.

Introducing Parents' New Boyfriends or Girlfriends

2009-01-01T22:05:00.000-08:00

One of the significant benefits of using Collaborative Law and including a child specialist is that the parties can make thoughtful and appropriate decisions about how to best introduce their children to new adults in the parents' lives. Sam Hasler's Indiana Divorce & Family Law Blog has had two recent posts on the topic of visitation, children and sleep overs. There are no uniform rules on having boyfriends or girlfriends of a parent spend the night after a divorce has been granted or stating when and how the children should be introduced to such a new friend.

My suggestion about dating while the divorce is pending is to wait until after the divorce is granted. I had posts on that topic in 2007 and 2008.

The Problem: Assuming that the divorce is now granted, there are still important issues to be dealt with regarding introducing new romantic interests to the children. Collaborative Law provides a forum to have thoughtful discussions about what would be best for the children. While a selfish parent might want the freedom to bring new boyfriends or girlfriends around the children without restriction, a more mature approach involves taking into account the age, emotional state and the maturity of the children in deciding when and how to introduce them to a new "special friend". This should not be just an opportunity to flout one's independence and attractiveness in front of an ex-spouse. Some parents might enjoy showing off their new dating partner in front of the kids and possibly the ex-spouse, but the parents should be looking more long term.

The Effect on Children: Having experienced their parents' divorce, kids may be a little unsettled for a while. They need stability, predictability and safety. They want to know that they can depend on their parents and that neither parent will be abandoning the children. Bringing around a new significant other in the first few months after the divorce can create worry on the part of the children. They may wonder if the parent will be leaving the kids again and going away with a possible new spouse. It can also cut into the time the children could have been spending with their parent.

Solutions: An important feature of Collaborative Law, as practiced in Fort Worth and Tarrant County, is that we usually bring in a neutral child specialist to work with the parties. Having an experienced professional looking out for the children's best interests really helps the parties reach appropriate agreements and avoid deadlocks.

The good news is that Collaborative Law enables the parties to directly address the issue and put a plan in place to protect the children, to the extent it is needed. For example, the parties may agree to not introduce, for 6 months or a year, the children to someone the parent is dating. Since the odds of the parent breaking up with a dating partner within 6 -- 12 months are pretty high, the kids are kept away from an unstable lifestyle at a time when they may be a little fragile. In a litigated divorce in Texas, there is virtually no chance that such an agreement would be imposed by a judge and there wouldn't be much incentive for the parties to agree on that on their own.

Conclusion: Collaborative Law clearly provides a better opportunity to protect the children and assist in a safe and smooth transition from the intact family to two families. Using a child specialist and crafting an agreement that covers all aspects of introducing new adults into the children's lives is a smart way to help ensure the safety and health of the children.

5 Tips on How to Tell the Kids

2008-12-24T08:48:00.000-08:00

One of the hardest things to do in a divorce is to break the news to the children. In some cases, the kids may strongly suspect what's going on and they may actually welcome the change, but in a great number of cases, it is a very emotional time for parents and children. To help deal with the issue, here are 5 tips to help you tell the children in the best way possible in your situation.

1. Work together. If the parents can make a joint announcement, in person, it can be a little reassuring to the children even though they may hate the message. Showing that the parents can still work together, even when they are splitting up, will help. Be sure that the parents are saying the same things and are coordinated with each other. Both parents should plan what to say and work together to carry it out. They should avoid getting into an argument and they don't need to go into great detail about fault or other adult issues.

2. Work with a Mental Health Professional (MHP). In Fort Worth and Tarrant County Collaborative cases, and in many other areas, MHPs help the parents know what to say and how to say it. Sometimes parents can come up with appropriate messages, but often they don't have a clue, even when they are trying to soften the blow to the children. An MHP can help put together a discussion that fits the children's development and needs. Think though the scene and be prepared for a bad reaction from the children. Learn what to expect and how to respond to various reactions.

3. Timing is Important. Think about what else is going on in the child's life. If the children are at finals time, or near some athletic or other extra-curricular event that they participate in, it may be better to wait to tell them. Pay attention to holidays, health and school. Don't break the news when the kids either can't handle it or when getting them upset will lead to bad consequences outside of the divorce issues. Telling the children just before or during a major holiday or family event can create a very unhappy association for the child. Try to make the announcement a little ways before or after the holiday.

4. Reassure your Children. Make it very clear that your decision to get a divorce is not based on something the kids did or didn't do -- it's not their fault. Make sure the children know that they didn't do anything wrong. And the children should understand that there's nothing they can do to "fix" the problem. Reassurance also includes having both parents demonstrate to the kids that both parents still love them. Spend time with them, listen to their concerns and respond helpfully. Show them your relationship and commitment to them remain strong.

5. Give the Children Reason to be Hopeful. Explain the good things that can come from a divorce (even though you may have a hard time with what you are doing). Again, working with an MHP is probably a necessary part of creating a hopeful message for the children. Depending on their ages, the children may get excited to learn about a new home where they will have their own room, new play arrangements, etc. Older kids may appreciate having two homes with less fighting. Find some good that will come from the divorce and focus on that. If you can't come up with anything good, get help from the MHP or your family or friends. Even if you don't want the divorce, you can find something good to come out of it.

Note: Your best opportunity, IMHO, to tell the kids, in a less damaging manner, about an upcoming divorce is by opting for Collaborative Law and working with a mental health professional to prepare a joint announcement that fits the needs and abilities of the children.

Don't be Listening to Others

2008-12-19T21:53:00.000-08:00

Usually, when people sign up to use Collaborative Law, they are really fired up at the outset. They see the advantages of using a peaceful and dignified means to settle their divorce or other family law issue. They may have researched Collaborative Law and decided it was their best option. They may have been referred to a Collaborative lawyer and then learned about the process. Regardless of how they got to Collaborative Law, the parties usually start out open to it and willing to follow the rules.

In Texas Collaborative Law cases, we have some standardized forms for the Participation Agreement everyone signs and for rules of conduct. Most attorneys also start out with some common instructions which normally include a warning not to seek advice from others about the Collaborative case. There are several reasons why this is important.

People outside the process don't know all the facts of the case. Giving advice based on incomplete information will almost guarantee a bad result. Without knowing all the facts that were considered, including the nonverbal communication that takes place, an advisor can't accirately evaluate what's going on.

The advisor likely is not trained in Collaborative Law and doesn't understand why and how the process works. (Someone trained in Collaborative Law is probably not going to be advising on the side because they know not to do that.) What you explain to the untrained advisor will probably not make much sense and the advisor is likely to be very critical of the process out of ignorance.

Most outside advisors who have experienced divorce have gone through the litigation approach. What works well in litigation may be very destructive in a Collaborative case. Don't listen to someone whose frame of reference is litigation. They don't know what they're talking about.

Many people who have been divorced and are now advising you will bring biases from their own experiences which can lead to some really inappropriate advice. They could be biased against men, women, husbands, wives, grandparents, teachers, judges, lawyers, counselors, CPAs, child specialists, or some other type of person who has a role in a divorce. The advisor's assumptions can lead to mistaken conclusions and bad decisions.

It is very common for friends to become very protective about a friend going through a divorce. As a result, the friends may question things and create unwarranted doubts about the process because they don't see the process going as favorably as they would like, even though they don't know the facts or how the process really works. Those doubts can eventually derail the process if the client doesn't ignore them.

Best Advice: Ignore friends and advisors. When you have questions or doubts or if you don't understand something, talk with your Collaborative lawyer or the neutral mental health professional about your concerns. The best advice comes from someone who is trained in the process who has actually been in the joint meetings and knows the facts and how decisions have been made. It can be tough to tune out well-meaning family and friends, but that can mean the difference between success and failure. Ask your advisors to trust you. Tell them you will explain what happened and how it happened, after a final agreement is reached. Remember, it's your life and your family!

The Importance of Keeping Your Word

2008-12-14T21:52:00.000-08:00

In a Collaborative case, like in litigation or in life in general, you need to learn to keep your word when you reach an agreement. Normally, an agreement is the result of following the usual Collaborative process, beginning with identifying goals, then gathering information, brainstorming, evaluating options and then coming to an agreement. It is a logical, effective process. When you go through those steps, reach an agreement, and then later back out of the agreement, that creates problems. It wastes time and money. It creates distrust in a process that values transparency. It is very frustrating for everyone else.

If you get tempted to back out of an agreement, please think twice before you do it. If your change of mind is based on advice from someone who was not in the meetings or someone who is not trained in Collaborative Law, please hold off and discuss the situation first with your attorney and the neutral mental health specialist. They can help you stay on the right path and look out for your best interests.

Until a binding settlement agreement is reached, either party can theoretically change their mind, but doing so can create some serious problems. Think about it, seek advice and then try not to break the agreement unless new facts have emerged. The best way to avoid problems is to be very careful when you are entering into the agreements in the first place.

Resolving Tough Issues is Hard Work *

2008-12-08T21:58:00.000-08:00

*But it still beats the alternative.
Two of the most common misconceptions about Collaborative Law are that it is set up only to handle the "nice" cases where everyone is basically agreeable, and the process is painless and easy.

Contrary to the image many people have of Collaborative Law, problems do arise in meetings, and between meetings. Sometimes, those problems are very challenging and sometimes they threaten the viability of the Collaborative process, even with experienced Collaborative lawyers and other professionals, and even including a neutral mental health specialist. Collaborative lawyers don't have a magic wand to wave to make conflict, anger and pain disappear. Even in cases that start out very amicably, there will usually be at least one time when things get a little tense. The message to remember: That's normal. Don't get too nervous about conflict. We can usually handle it if everyone will follow their original commitments to the Collaborative process.

Why there are problems? There are several reasons why progress can become difficult.

The process operates in an environment of conflict. Most divorces involve people with very different agendas, even when they both agree that they want the divorce. The reason for divorce is often deep-seated conflict between the parties over one or more issues. The amount of conflict expressed is different from case to case, but there will always be some conflict or the parties would have already settled.

The process deals with very emotional issues. Whether the issues are financial, honesty, betrayal or something else, the problems often trigger strong emotional reactions. Sometimes it's hard to discover the underlying issues, but there's usually at least some emotion showing on the surface. And it's not uncommon for people to suddenly switch from happy to angry or fearful in an instant. Words, facial expressions, tone of voice and many other seemingly small details can lead to a major mood swing.

Very stressful. As a marriage unravels, many tough issues must be decided and the parties face difficult and uncertain futures. Lives must start fresh and often the parties are not well equipped to start over. Parties are asking, "Can I do it?" and "How do I do that?". They often have to leave a well-established comfort zone and find a new home, new friends and a new job. They also find lots of stress.

So, what can be done to calm the waters?

1. Listen to the attorneys and professionals in your case. They are trained to deal with difficult situations and upset people. They want a successful resolution to your case and will do whatever they can to assist you in reaching an agreement that works for both parties.

2. Follow the rules you agreed to. Before the negotiations begin, you will sign a participation agreement that explains how you and the other party are to act. You should discuss any questions or concerns you have about the process, before signing up. Many attorneys and other professionals encourage the parties to discuss and agree to other rules of conduct as well. If you will follow the guidelines for conduct, the chances of success are greatly improved. The rules really work.

3. Slow down your reactions. Take a deep breath before reacting when you are provoked. Even in Collaborative, parties will sometimes say stupid, mean and inappropriate things in anger. If you will hold back, you can avoid escalating the situation. If you still respond after pausing, you may soften the response.

4. Keep things in perspective. Not every issue is important. Think about the big picture. Be prepared to concede on some issues, especially if that helps you get something else you may be interested in.

5. Avoid the temptation to retaliate. You may be better off in the long run by holding your tongue rather than getting upset at every provocation. The benefit of a final settlement will probably far outweigh the short-lived feeling of satisfaction from a clever or mean response.

6. Communicate. Everyone is at a disadvantage when you don't express your opinions, wishes and concerns. Remember to be respectful, but tell everyone what's on your mind. No changes will be made to deal with your concerns unless everyone else knows what's on your mind.

Remember, Collaborative Law is still better than litigation. If you don't try hard to succeed, the easy course of action is to return to the pattern of arguments that have probably been used for years. The better approach is to follow the suggestions listed above. Stick to the basics and you will be fine. Talk to your attorney and the mental health specialist, if you have one, and they can help you through the rough times. Experienced Collaborative lawyers have been through many such situations and can help you survive and reach a favorable settlement that works for everyone.

House Rules for House Sharing During Divorce

2008-12-05T09:43:00.000-08:00

NEWS FLASH!!! More couples continue to live together as they go through a divorce. What had already seemed like a more common situation has been happening even more often lately as the U.S. economy is experiencing a broad downturn. I had previously noticed a trend in Collaborative cases, and sometimes even in litigation, but the slump in the housing market has made the situation more of a necessity for many families who can't afford two house payments. The earlier experiences I had noticed seemed to relate more to families who still got along well and who were very concerned with sharing time with the children and minimizing the stress of splitting the household. Now, we are adding families who don't get along as well who stay together out of economic necessity.

In some of the still-together families, problems can arise as the adults are entering the new world of separation and single adulthood. To help all the house-sharing families, I offer the following "House Rules" topics that usually need to be addressed to avoid or minimize conflict within the household.

Cooking and Meals. Do the adults share the food, the cost of purchasing food and the food preparation, or do they each do their own thing? Do they eat together? Does one eat in the kitchen and the other in the dining room? Who feeds the kids?
Cleaning. Who cleans up the kitchen? Do they clean up their own mess? Who cleans which rooms in the house? Who cleans up for the kids or gets the kids to do their share of the cleaning? Who buys the cleaning supplies?
Laundry. Who's in charge? Does each adult do their own laundry? What about the kids' laundry? Does there need to be a schedule for use of the machines? Who buys the cleaning supplies?
Use of Space. Do both parties get equal rights to the use of the whole house or are the rooms and areas allocated in some way? Who's in charge of the kids' rooms and stuff?
Sleeping Arrangements. Does the couple still share a bed or bedroom? Where does everyone sleep?
The Yard. Who maintains the yard, including mowing and watering? Who gets to use the yard and when?
Bills. Who pays the mortgage and utilities? Will there be any reimbursement?
TVs. Will everyone have their own TV or do they have to share?
Computer Use. Will everyone have their own, or do they share? If they share, there may have to be agreements about when each can use it. Will any privacy be protected on the computer?
Guests. Guests of any nature should probably be very limited. Guests who are romantically linked to one of the parties probably shouldn't be brought home.
Sharing Time with the Kids. Sometimes conflicts develop over who is responsible for certain kid activities or duties. Sometimes conflicts develop over who gets to have fun with the kids at different times. If there is a possible conflict, the parents should coordinate their time with the kids in advance.
Discussion of the Divorce. This should probably be off limits or, at most, very limited. People going through divorce usually can't resolve tough issues on their own. If the parties are going through a Collaborative divorce, they have probably agreed (in the Participation Agreement) not to negotiate outside the joint meetings.

If there is an agreement for the parties to share the house during a Collaborative divorce, it would be helpful to discuss the above issues, and any others that come up, with the help of the professionals in the case. The discussion is not highly technical or legalistic. It's really just a good idea to resolve these issues before they become serious problems.

Good luck if you are sharing your house!

What is a Practice Group?

2008-11-30T21:52:00.000-08:00

Sometimes, when people learn about Collaborative Law, they research the subject on the Internet and run across the phrase "practice group". The term isn't often defined and people wonder what it is and how it might affect them or their case. This post is to briefly explain about practice groups.

What are they? A practice group is a group of trained Collaborative professionals. They are not a law firm, partnership or corporation. It is a group of unaffiliated individuals who support, practice and promote Collaborative Law. Some groups are just lawyers and other groups also have mental health professionals, financial specialists, child specialists and perhaps other professionals as members, as well as lawyers.

Why do they exist? Practice groups have several functions. They promote standardization of procedures for how Collaborative cases are handled. They provide a way for Collaborative professionals to network and get to know each other. Practice groups often work together to have a web site and use other means to publicize Collaborative Law. They work to educate the public and other professionals about how Collaborative Law works and its advantages. They also sometimes will sponsor training sessions for their members and other local Collaborative Professionals.

What are their membership requirements? Membership rules vary from group to group. Among the most common requirements are that the professional must have completed at least one basic two-day Collaborative Law training course. Many also require continuing Collaborative Law training every year. Some groups require that their members also join the state and/or national Collaborative Law organizations.

Must Collaborative professionals be a member of a practice group? NO.

Do both attorneys in a Collaborative case have to be members of the same practice group? NO.

You can choose any trained attorney you want and it is common for attorneys from different groups to work together. In addition, attorneys who are not members of any practice group are free to work with anyone. It really comes down to the client's choice. Attorneys are used to working with anyone from anywhere in the county (and sometimes from other counties), so we normally know most of the Collaborative attorneys anyway.

Ultimately, clients should choose whoever they are comfortable with. Collaborative attorneys should not pressure a party to hire a certain attorney or to work exclusively with a certain practice group. Some groups offer a list of trained attorneys for the convenience of an unrepresented spouse, but I would suggest each party hire a Collaborative attorney as they would any other attorney: make sure the attorney has had sufficient Collaborative Law training, get recommendations, use referrals from trusted sources, research on the Internet and then make the decision only after meeting the attorney in person. You want an experienced, qualified attorney you are comfortable with.

Keep in mind that Collaborative skills are different from litigation skills, so an excellent litigation attorney who has not been trained in Collaborative Law would be a bad choice to represent someone in a Collaborative case. The good news is that there are now a substantial number of well-qualified Collaborative lawyers in Tarrant County. Spend a little time investigating and you will be well represented!

Five Ways Gratitude Will Change Your Life

2008-11-25T21:28:00.000-08:00

I have just run across a great post on a blog that is new to me: Kevin's Remarkable Learning Blog. Since gratitude is a perfect topic for Thanksgiving, I am re-printing his complete post here:

" 'Thank you'

Saying 'thank you' is one of the lessons most of us learn at a young age. It's something we teach to our children too. We all know that gratitude is important, which is why in many parts of the world we have a day called Thanksgiving to remind us to be thankful.

"It is unfortunate in many ways that we have such a day. Yes, it may remind us on that day to be thankful, grateful and appreciative - but the fact is that we will benefit greatly if we do it with much more regularity. I was thinking daily, or even hourly.

"The behavior of being grateful goes beyond saying 'thank you,' though that is one of the actions that should be included. When I speak of the behavior of gratitude I mean consciously and regularly looking for and acknowledging the things you are thankful for or appreciate. Some people choose to keep a gratitude journal, some make occasional lists and some mentally say thank you as things happen.

"The purpose of this article is not to suggest or advocate for any particular method, but rather to implore you to be grateful; for when you are, your life will be drastically altered for the better.

"Before I share these five ways with you let me make one thing very clear: the reasons to be grateful are many, but do not include a quid pro quo of 'If I'm grateful, I'll get these benefits.' Rather, choose to be grateful, do the things that heighten you appreciation of the world around you and your circumstances, and rest assured these benefits will flow to you.

"What we think about expands. This is the foundational principle for the other four ways that follow. Would you like more of the things you are grateful for in your life? When you think on those things and are grateful for their presence, you are already taking the first step towards expanding them in your life!

"Reduce your stress. We add much stress to our lives by the things we think about, wonder about and worry about. If you are thinking appreciative, grateful thoughts there is less room for the rest. When you are grateful for what you have, you will reduce your stress.

"Change your focus. Being grateful in these ways changes your focus by definition. Our minds are built to literally allow us to see the things we are looking for. When you approach life from the perspective of thankfulness, your mind will literally notice more examples of things to be thankful for, and even help you do a better job of seeing the positive in any situation.

"Improve your relationships. Do this exercise with me. Think of a person that is a challenge in your life - a person that makes something difficult for you; someone that frustrates you or you argue with frequently. Write that person's name at the top of a piece of paper and write down five admirable things about that person - five skills, abilities or characteristics about that person that you can appreciate. Once you have done that, commit to thinking about those attributes or characteristics the next time you are around or working with that person. As you think of those things you appreciate, even when you are frustrated or in disagreement, your thinking about the person and your attitude will change. By taking this step of gratitude and appreciation you are taking a huge step towards improving your relationship.

"Improve your self image. The more you think about the good things in your life, and the more you notice and observe what is working well in your life, the better you will feel about yourself! And the even better news is that as your self image improves your focus and your relationships will continue to improve and your stress will, everything else being equal, continue to drop.

"The benefits of gratitude go far beyond doing something because it's the 'right thing' to do. When you begin to notice and take inventory of all of the things you are thankful for, you recognize that even though your life may have challenges and you might be facing obstacles, you can build your future success on the blessings around you right now.

"Potential Pointer: Everyone has a huge number of things, people and circumstances for which to be thankful. When you invest the time and focus to notice and acknowledge these things, you create space and energy to draw even more positive experiences and circumstances into your life."

I know that it can be tough to be happy, be thankful or even just a little cheerful when going through an emotionally-difficult experience like divorce. If you are having a difficult time, try some of the techniques mentioned here and see if they will help (and then let us know about your experiences). I'm betting they will, if you give yourself some time to try out the ideas. Once you commit to the approach and follow the plan for a while, I believe you will be grateful to Kevin for his thoughtful approach. Thanks, Kevin.

Is Collaborative Law a Threat to the Court System?

2008-11-19T21:14:00.000-08:00

Some judges don't like Collaborative Law because they see it as a threat to the need for courts. In other words, there's a little job insecurity. To be sure, that's a minority view, but there are some judges with that concern. Some attorneys probably share that point of view.

From my perspective, there's no realistic chance that courts will be abolished. Here's five reasons why:

1. The biggest factor may be the shear number of cases to be decided. Thousands of divorce and other family law cases are filed each month in Tarrant County and in other counties around across the country. There are many more cases than there are trained Collaborative Lawyers. That means, for judges and lawyers, that there is plenty of work to go around, whether the attorneys are trained for Collaborative Law or not. The untrained lawyers will always have plenty of opportunities to go to court, even as the number of trained Collaborative lawyers grows. Tarrant County Collaborative lawyers will almost always try to sign up new cases as Collaborative cases if there is any possibility of going Collaborative. Of course, where one of the attorneys on a case is not trained in Collaborative law, the case can't proceed as Collaborative. Although more Tarrant County lawyers are getting trained in Collaborative law all the time, the great majority of cases are still non-Collaborative.

2. A second factor is that Collaborative Law won't work for some cases. Some of the reasons for that are:

One of the attorneys isn't trained in Collaborative Law.
The parties prefer to fight, or at least one does. Most attorneys will discourage fighting for fighting's sake, but some people look forward to hurting their spouse (not realizing or not being concerned about the harm to themselves).
Unrealistic expectations can scuttle a Collaborative case. More experienced attorneys are usually able to sniff out the problem cases and avoid taking them into Collaborative. A party with unrealistic expectations will get frustrated and the process will usually break down unless someone can change that mindset.
Some mental illnesses prevent parties from being able to function at a high enough level to follow through the steps of the Collaborative process. While mental illnesses can complicate any divorce, they can prevent a party from being able to cooperate and function appropriately in a Collaborative context.
Similarly, drug and alcohol issues can prevent a party from functioning well in a Collaborative case, especially if the party is in denial about the problem(s). A therapist might be useful in evaluating whether the person can effectively participate in the process.
Domestic violence can also make Collaborative Law inappropriate, unless there is remedial therapy and safe guards are provided.

When Collaborative Law is not a good fit for a case, the case will have to end up in the litigation system. Please note that the above list did not include cases where there was significant disagreement between the parties. Collaborative Law is not just for the easy, agreeable cases. It will work well for custody disputes and major property fights. Don't assume that Collaborative Law is only for agreeable people.

3. Administrative agencies, such as the Texas Attorney General, will be expanding their reach into the court system. Following past trends, you can expect the A.G. or the Tarrant County Domestic Relations Office to initiate, negotiate and settle many cases. They will also file cases and set hearings. So far, the A.G. and DRO are not trained in Collaborative Law, so they rely on litigation.

4. There will always be a few Collaborative cases that fail. It looks like somewhere from 5-8%, by some studies, will terminate and go to litigation. They need the court system to handle those.

5. Finally, some people just want someone in authority to decide their issues. Even thought the litigation can be slow, expensive and personally destructive, some people want their day in court. If either party has that feeling, the case must be in the court system.

While the Collaborative Law Institute of Texas wants Collaborative Law to be the preferred method of dispute resolution, no one believes Collaborative Law would work in every case. Our courts will undoubtedly survive past the foreseeable future. What we hope for is that Collaborative Law continues to expand so that more and more people will have it as an option.

What is an Agreement Incident to Divorce?

2008-11-03T11:09:00.000-08:00

*and Why Should I Be Interested?

An Agreement Incident to Divorce (AID) is a great tool for people going through a divorce. It fits in well with one of the main reasons why many people choose to use Collaborative Law -- it helps protect their privacy. An AID is a document that is sometimes prepared in addition to a decree of divorce. In a traditional Texas divorce, the terms of the divorce are spelled out in detail in the decree of divorce. The AID can be used to supplement the decree. A decree of divorce is signed by the judge and filed with the public records in the court's file. An AID is signed by the parties, but not the judge, and is usually not filed with the court papers for public viewing.

An agreement incident to divorce is a contract signed by the parties. That means that it contains agreements that can be enforced like any other contract. Damages can be awarded for a breach of contract. A party can be ordered to specifically perform the terms of the agreement. Attorney's fees can be awarded to the party who lost something because the other party violated the agreement.

In a divorce case, an agreement incident to divorce is usually "incorporated by reference" into the decree of divorce. That means that the AID technically becomes part of the decree of divorce and may be enforced by contempt, which can be used both to compel compliance with the agreement and to punish violations of the agreement. In addition, attorney's fees can be awarded. If the decree/agreement is deemed too unclear or indefinite to be enforced, a court can issue an order to clarify the decree.

What is included in an agreement incident to divorce? Whatever the parties want to put in it can generally be included. Many people want all financial provisions included in the AID, and not in the decree of divorce. Some may want just some financial provisions in the AID. The topics can include income, investments, debts, tax issues, alimony, real estate, trusts, plans for disposing of assets, and on and on. Provisions for the children, including visitation and support can be included. Sometimes special needs for children are dealt with there. If child support is substantial, the parties may want it included in the AID, rather than the decree.

Many AIDs contain provisions that go beyond what a court can order. Generally speaking, a court cannot order support for children beyond the child's 18th birthday or when the child graduates from high school, whichever is later, but that can be done in an AID. In Texas, courts cannot usually order child support through college or order the payment of college expenses, if the child is over 18. However, in an AID, the parties can have an agreement for payments for the child's college, insurance, and even vehicle(s) after 18, and the agreement can be enforceable.

AIDs can also include very creative financial dealings that would not be available in a simple decree of divorce. Real estate transactions, alimony and other significant provisions can be spelled out in detail to benefit both parties. If one or both parties is involved in other litigation, the AID can deal with different contingencies that might arise. An AID provides a very flexible tool for reaching agreements.

Conclusion: Why use an agreement incident to divorce? For privacy, extra enforcement possibilities, creative solutions, clarity and flexibility. It is a device that works very well in Texas Collaborative Law divorces.

Trick or Treat -- Are There Always Just 2 Choices?

2008-10-31T08:47:00.000-07:00

Tonight, most folks will be inundated by little monsters, princesses and really cute little creatures who all seem to be knocking on doors and saying the same thing, "Trick or Treat!". Hearing that phrase got me thinking about how so many things in life seem to be either-or situations: black or white, young or old, smart or dumb, rich or poor, etc. We've grown accustomed to thinking in dichotomies with seeming opposites being the only choices.
In reality, not only are there gray areas (gray color, middle age, normal intelligence, middle class, for examples), but if we look, we can usually also find alternative choices. One of the most significant benefits of Collaborative Law is that it actively promotes the creation and consideration of new options through the decision-making process.
The Collaborative process usually involves following several steps. First, the goals are set out for each party so everyone knows what needs to be accomplished. Second, information is gathered about the parties' situation. Third, the parties brainstorm and come up with as many options as they can. Fourth, the options are evaluated by the parties. And fifth, the parties negotiate and reach an agreement. That framework has proven very successful in helping parties create solutions that they both like.
While all the steps are important, the brainstorming session is often the most interesting and enlightening. When they try, parties are able to come up with great new ideas and solutions that are acceptable to both parties. That is a vastly different situation from old-fashioned litigation which relies mostly on standard guidelines and formulas, as well as "what the judge always does in similar situations".
For those interested in finding new ways to solve problems, Collaborative Law is the way to go. For those who find security in the tried and true either-or responses to issues, litigation is the appropriate approach. Collaborative Law is sometimes difficult, but ultimately is rewarding in many ways as I have previously discussed on this blog. Hopefully, you won't be scared to try something new and challenging, even on Halloween!

The 1st Joint Meeting -- Building a Foundation

2008-10-26T22:17:00.000-07:00

Many people going through a Collaborative divorce, especially those in a hurry (which is usually just half of the parties), consider the first joint meeting to be a huge waste of time. They are anxious to get down to business and start negotiating. They don't like to discuss boring topics, such as how the Collaborative process works (the attorneys will manage it) or how they should behave (they'll be nice). They don't like to read through the Participation Agreement with the attorneys or the agreement used to hire experts. Often, the parties think that they don't need to read such documents because they won't understand them and/or the attorneys wouldn't have the parties sign something unless it was the right thing to do. For many people who are starting the divorce process, they don't want the divorce and often they are in a fog and not thinking or understanding well.

The Collaborative process requires a commitment by both parties to a number of principles that are explicitly spelled out in the Participation Agreement. It is important for the parties to discuss and learn how the process works in actual practice. We don't want someone to start the process based on mistaken assumptions about how it works.

The typical first joint meeting provides a foundation for the parties and the professionals to be sure they understand the process and they really want to commit to it. There is the little matter of the attorneys having to withdraw if the process breaks down. That needs to be well understood by the parties. It's actually the incentive for the parties to keep trying to find solutions rather than resort back to litigation. It's a significant financial cost to both sides, so it behooves everyone to be clear and in agreement about the process. The steps to be followed need to be understood. The expectations about behavior should be discussed as well. Finally, setting the goals for each party is an essential first step in the problem solving process.

While it may seem like a waste of time to some people, the first joint meeting actually is an essential, critical step in the Collaborative process. We apologize if it seems boring, and if it means that you can't start negotiating immediately. It's like when a young person starts to drive: s/he is very anxious to get behind the wheel. They have seen driving all their life and are sure they know how and what to do. Parents know that their children must be trained to drive and part of that is learning the rules and being patient. We need a little bit of that same patience in the Collaborative process. Building a good foundation increases the probability of success in houses and in Collaborative Law cases.

Collaborative Law Works in Britain, Too

2008-10-16T22:26:00.000-07:00

A recent article in the American Bar Association Journal provides further support for the use of Collaborative Law in settling disputes. The article quotes a senior British judge (in the London Times) as saying that Collaborative Law is much better than traditional litigation. The growth of Collaborative Law in the last five years, both in Britain and in the U.S., has been phenomenal.

There are many good reasons for the growth. I have previously posted on a variety of reasons why Collaborative Law often works better than litigation for resolving family disputes. If you are about to start a divorce or other family law procedure, you should discuss the possibility of Collaborative Law with your attorney. Be sure you are dealing with an attorney who has at least attended a two-day training on the process, and further experience is valuable. An experienced Collaborative attorney can help you analyze your case to determine if Collaborative Law might work. There are some cases where Collaborative probably won't work out, but in most cases, it's your best choice.

Another View of How to End an Impasse

2008-10-04T22:04:00.000-07:00

One of the consistently best family law blogs is the Maryland Divorce Legal Crier by James J. Gross. A few days ago, he had a post about the same subject I recently discussed. Here's his take on impasse.

"What happens when an irresistible force meets an immovable object? A lawyer makes a settlement proposal for a divorce client. The other side sends back a counterproposal, which the client doesn’t like.

'What do you advise next?' asks the client.
'Send back another proposal with some concessions,' the lawyer says.
'What if I don’t want to make any concessions?'
'Then you are at an impasse.'

There are several ways to break an impasse.

(1) Litigation. The ultimate way is to have a judge decide. But this is expensive, time consuming and uncertain in outcome.

(2) Keep Talking. Explore other options to meet the needs of each party. I have been in negotiations where a creative idea just seems to fall out on the table in the conversation that had not been there before.

(3) Segment the Problem. Break the dispute down into separate smaller pieces and try to get agreements on one piece at a time until you have solved the whole problem.

(4) Bring in an Expert. You can bring in an expert to help break an impasse such as a therapist for issues involving children or a financial planner for issues involving money.

(5) Do Nothing. One option is to just do nothing until somebody blinks. Sometimes I have told the parties, 'You are twenty thousand dollars apart and it will cost you each ten thousand dollars to litigate this case. Does anyone have any ideas?' Then I sit in silence for a minute, two minutes, sometimes ten minutes, until finally someone says, 'Well I’ll split the difference if you will.'"

These are some good ideas, at least 2-5 are. The first idea of using litigation isn't a possibility in a Collaborative case. I have used all of the techniques at different times and they usually help resolve the issues in dispute. There are bound to be some other successful strategies for breaking out of an impasse. Does anyone want to share their ideas?

Why Professional Athletes Have Prenuptial Agreements

2008-09-28T14:32:00.000-07:00

After a brief flurry of news reports about the impending break-up of superstar baseball player Alex Rodriguez's marriage, a few recent stories came out announcing that an agreement had been reached and that there would be no further information released. It turned out to be a relatively quiet divorce for several important reasons.

First, there had been a prenuptial agreement completed about a month before the wedding. That agreement apparently settled many or most of the issues. It helped avoid a lot of litigation and undoubtedly saved a great deal of attorneys' fees for both sides. While prenuptial agreements may seem very expensive when they are negotiated and drawn up, they usually turn out to be a great investment because they minimize the costs of a divorce or they might even help preserve a marriage (when divorce options are limited). Prenuptial agreements may seem "unromantic", and they are, but for a second or third marriage, the odds of going through a divorce are going to be a little higher. Besides, doing a prenuptial agreement does provide more disclosure between the bride and groom than occurs in many relationships, and they force the parties to think more about the future, good or bad.

Second, there was not a lot of negotiating happening in the press. In celebrity divorces, there's often a lot of damage done because of what gets published, televised or discussed. Either the parties recognized that they both had something to lose by going public or the prenuptial agreement may have included penalties or incentives for privacy.

Third, the parties obviously had attorneys who recognized that hanging out the couple's dirty laundry would end up soiling both of them. They were able to protect the interests of both parties by working quickly and quietly. Sometimes less is more, and that was the case here. Both parties end up losing when they start slinging mud. Professional athletes need to keep a good image for marketing purposes. Unfavorable press can result in loss of endorsements and lost opportunities for outside projects and income.

Professional athletes, whether they play in the NBA, WNBA, NFL, NHL or MLB, would all be well advised to seek a prenuptial agreement if they are getting married. It can save them a lot of money later on and make their lives more peaceful and productive. A prenuptial agreement will probably save substantial attorney fees in case of divorce and will limit the financial exposure in that situation. It can also help the athlete and the spouse address and decide financial issues for the future.

Why use Collaborative Law? Basically, preparing a good prenuptial agreement requires long-range planning by the athlete and his/her spouse, with a financial advisor as well as an attorney. Instead of just living for today, professional athletes should take the time to look to the future and preparing a prenup is a great way to get started. The best practice is for each side to have their own attorney. That helps balance the power in the relationship and makes sure that both sides are heard and understood. Collaborative Law is a very effective way to negotiate a prenuptial agreement. There is disclosure, representation of both parties and other professionals can be used as needed. No agreement is established unless both parties voluntarily agree to it.

One final point: Don't wait until the last minute! A complex agreement takes time to prepare. You want it done right and you want both parties to be comfortable with it. To create a custom agreement, information must be gathered and analyzed, a plan must be put together and an agreement must be negotiated. If it's not done right, you are just wasting money because a court can find it to be invalid. It takes time to get all the work done. In addition, waiting until the last minute will only multiply the stress related to getting married, probably resulting in two very unhappy people. Start early.

Thanks to the My Family Law Celebrity Divorce Blog for their post on this case.

Is Collaborative Law Cheaper than Litigation?

2008-09-25T09:15:00.000-07:00

Answer: Sometimes, but it's really hard to directly compare the two systems.

Collaborative Law involves having a series of relatively brief meetings to work through to settlement in an organized and efficient manner. Including the preparation and debriefing times for each meeting, my experience is that there is often a three-hour block of time expended for each meeting. That can add up to some significant time if there are many meetings. Of course, the contrast in litigation is that there would probably be a number of court appearances in a case with complex property to divide or with custody issues, so the actual time commitment may not be greater in Collaborative cases. There are some other factors to consider that would seem to indicate that Collaborative cases can save time when compared to litigation. Consider these.

A Collaborative case normally (in Texas, at least) involves a single neutral financial professional (FP) and a neutral mental health professional (MHP). In litigation, the cost is usually doubled because each side hires their own expert. That sometimes results in hiring a third professional to break the tie if the original two experts don't agree on the issue. A single child specialist is often used in Collaborative cases, or the regular MHP may act as the child specialist. That compares with litigation where it is not unusual to have two or three experts on children's issues.

The parties ask for and produce only the necessary information in Collaborative cases instead of using standardized, boilerplate requests for voluminous information, much of which is never used. Collaborative Law saves trees, time and money by focusing only on the relevant issues for discovery, which is done informally. There's no playing games with objections and motions for sanctions. The appropriate information is produced and used.

The parties and attorneys don't waste a lot time arguing and posturing. Collaborative Law uses interest-based negotiating, instead of positional bargaining. We start off the process by establishing and clarifying the goals, needs and interests of each party. We creat solutions for achieving those goals rather than taking arbitrary positions and moving slowly to a compromise.

The parties don't file motions and set hearings with the court. That can be very time consuming and expensive for the parties. Obviously, not having court hearings means that the parties don't waste half a day waiting around the courthouse for each hearing.

The parties don't have to wait for distant court dates. The process moves along as fast as the parties both want and they can finish it when they are ready, rather than waiting for the court to have time for a hearing or trial.

Using the MHP results in more pleasant, efficient and effective work sessions. The meetings, although sometimes difficult and emotional, are improved by having the MHP work with the parties before, during and after the joint meetings. The MHP helps everyone operate at a higher, more adult level, and therefore they can get more done and the stress is greatly reduced for all. This is not to imply that the process is emotionally easy. Actually, it is often very difficult for both the parties and the attorneys, but the process can be effective because it utilizes the experts and trained attorneys who all work for the common goal of an agreement that benefits both parties.

Collaborative Law cases normally would not have depositions and there would be no depositions of the parties. That saves money and a great deal of stress that commonly occurs in contested litigation cases.

Although it is fair to say that a Collaborative case is probably cheaper than a litigated case, there really is no way to absolutely prove that because no two cases are alike. Nevertheless, the list above includes a number on money-saving innovations in Collaborative Law.

Texas Collaborative Law Blog Honored

2008-09-18T21:30:00.000-07:00

The Texas Collaborative Law Blog received an honor today when it was named the LexMonitor Blog of the Day. Here is a link to the notice. It is a very nice recognition that is greatly appreciated. LexMonitor is a highly respected daily review of legal blogs and journals. We appreciate their kind review.

5 Tips for Getting out of an Impasse

2008-09-16T11:02:00.000-07:00

Sometimes, no matter how hard you try, it seems like you reach a dead end with your spouse on an issue in a Collaborative Law case. It happened while you were together, and it shouldn't be surprising that it still happens after you split up. You've thought about possible approaches and made plenty of suggestions, but no agreement seems forthcoming. While persistence can be a virtue in some situations, it can simply lead to frustration in others. If you keep trying the same tactics that haven't worked on the same issues, you probably aren't going to reach an agreement. What you need is a change. Here are five brief possibilities to help you get out of a negotiation rut and into an agreement.

1. Expand the pie. Review the situation and come up with some other possibilities. If you have gotten down to a choice between two options and neither party is willing to agree to the other side's choice, then back up and come up with some other choices. For example, if the decision is about who will take care of the children after school, and each parent wants a different grandparent to be in charge, maybe you should come up with other possible caregivers. If you rule out the current choices and look for others, you may come up with another satisfactory choice you had overlooked. Avoid assumptions about how the issues should be decided. Open up your imagination to look for other solutions. Get out of the rut.

2. Expand your point of view. Oftentimes, we focus so much on our own thoughts and ideas that we begin to have trouble understanding how anyone could possibly think another way on an issue. When that happens in negotiations, that narrowing of focus can lead to impasse. One solution is to listen to the other party and then reflect back to him or her what is being said. If you can just put into your own words what the other side is saying or asking for, it can increase your understanding of their position and may open up your thoughts to new possibilities. In some Collaborative joint meetings, it has been helpful to ask each party to state the other party's position on an issue and to explain why the party favors that position. It is also common, in preparation for Collabortive meetings or mediations or just plain negotiations at the courthouse, to have my client tell me what the other party would say about various issues. That helps me understand, but it also helps each client/party who works on that. Greater understanding of the issues and the other party can help lead to agreement.

3. Go back to your broad goals. It is very easy in negotiations to get drawn into discussions of small points. As you get into the smaller, lower-level goals, the options available are reduced and the potential for impasse increases. Sometimes you get off track and spend time on things that are irrelevant or just marginally useful. One way to get out of that trap is to stop the discussion and go back to your goals. For example, if you are stuck in a discussion about whether to take part of a retirement account or keep the house (and its equity), it can be helpful to review your major goals. If one of the goals was to maximize your retirement resources, then you probably need to take the retirement account. If a goal was to keep a stable home for the children, you might want to keep the house. If your goal was to obtain or have access to cash, and if you can realistically sell the house quickly, then you would probably want to get the house and sell it. Without constantly keeping the goals in mind, sometimes parties get into emotional arguments over assets because they "love" the house or because their hard work created the retirement account. The goals are more neutral and should always be the ideal in mind as the parties negotiate.

Another problem that frequently occurs is that you have gone from macro level goals to micro level goals. In other words, instead of trying to create ways to stay in daily contact with your child (macro goal), you get into an argument about whether your spouse must guarantee that s/he will be home at a certain hour (micro goal), rather than looking at it broadly and trying to find as many ways as possible to communicate with your child. Dealing with the issues at a broader level increases the number of opportunities to find solutions.

4. Get professional help. We usually work in the team model, using two attorneys, a neutral financial professional (FP) and a neutral mental health professional (MHP). We sometimes have a separate child specialist. The FP and MHP have been extremely helpful in cases where the parties get stuck. On financial issues, the financial professional can ask the right questions as well as suggest alternative solutions. The MHP can help the process generally by redirecting attention to constructive areas and also by maintaining a safe atmosphere for the parties to express themselves. Being perceived as neutrals gives the FP and MHP much more credibility and effectiveness than they would have if they were linked to just one party.

5. Start with areas of agreement. If you come to a standstill somewhere, you should consider switching topics and working on subjects where you expect to agree. Then you can build some momentum. For example, if you get stuck on how to divide up the bills, you might work on how to divide up the motor vehicles or clarify the holiday visitation schedule or clarify college plans for the kids. There are always some areas where the parties will easily agree, and even reaching easy agreements can result in good feelings and a willingness to cooperate. Of course, that doesn't mean that both sides will agree on everything once they start agreeing, but the momentum can be a helpful force for you.

Conclusiont: It's not unusual in a Collaborative Law case to get stuck more than once. Collaborative Law is not necessarily an easy process to work in, but the results are so much better than in litigation that it is worth the effort. When those times come and you start to realize that you are at an impasse point, try out one or more of the above techniques. They should be great tools to help you reach a successful conclusion for your clients.

Changing a Case to Collaborative after Filing

2008-09-10T22:02:00.000-07:00

A common question people have about Collaborative Law is whether they can change a litigation case into a Collaborative case after it has been filed. The answer, thankfully, is Yes!

Some Collaborative attorneys will file a petition for divorce and either include a paragraph and information about Collaborative Law or provide, through separate documents, information to be served on the other party. The Collaborative Law information urges the other party to investigate and consider using Collaborative Law. If the other party hires a trained Collaborative Lawyer, any temporary hearing can be stopped and the case can be switched to Collaborative Law.

Other concerns come into play if there have been temporary hearings in the case. If there were actual "hearings", the parties' relationship could have become more damaged, which could make it more difficult to change processes. If the parties are fairly deep in the litigation process, it may be hard to recover a spirit of cooperation between them. Both parties and their attorneys need to candidly discuss their feelings and concerns before switching to Collaborative Law after doing a lot of things in a litigation model.

Unless the change in processes is done close to the outset, the parties and attorneys need to be very careful in deciding to make the change, but it is possible to do so.

Do We Have to Sign a Participation Agreement?

2008-09-06T21:25:00.000-07:00

Simple Answer: For the case to be considered a Collaborative Law case, a participation agreement must be signed by the parties and the attorneys.

What is it? The agreement sets out in very clear language how the process works, explains confidentiality, discusses the use of neutral experts and explains the requirement for the attorneys to withdraw in the event the process breaks down. The agreement also discusses the responsibility and commitment to open and honest cooperation between the parties, including the sharing of relevant information. Also included is an explanation of how, why and when the process could end. It is a comprehensive agreement which is intended to educate and reinforce, as well as commit the parties to the process.

Why must it be signed? It is required to be signed by the Texas statute that established Collaborative Law as part of our legal system. Part of the definition in the statute includes a requirement of having a signed written participation agreement.

What is the Rules of Conduct? Most Texas agreements also include the Rules of Conduct which operates like an injunction in a traditional litigated case. The Rules place restrictions and limitations on the parties to a case. The restrictions are intended to protect both parties and to avoid damage or loss to assets in the community estate. The Rules are usually imposed to maintain the status quo regarding the property and assets of the parties until an agreement is reached.

What if I Don't Want My Attorney to Withdraw?

2008-09-01T21:42:00.000-07:00

Simple Answer: Unfortunately for you, and also fortunately for you, the attorney must withdraw in a Collaborative case if the process breaks down. That is one of the fundamental characteristics of the Collaborative process, according to the Texas Family Code. Without the requirement for the attorneys to withdraw, a case cannot be considered a Collaborative Law case.

Why must the attorneys withdraw? There is logic to back up the law on this issue. Forcing the attorneys to withdraw if the process breaks down means that the parties and attorneys will work their hardest to get the case settled. Obviously, the attorney loses a good client and the clients incur substantial duplicate attorneys' fees. With financial pressure on all parties to the process, there is good reason for them to try new alternatives and to be creative. If the attorneys did not need to withdraw, attorneys and parties would fall back into the old pattern common in litigated cases where one party (sometimes both) would reach a certain point and then boldly proclaim that if the other side didn't accept this one final offer, then they would all just go to court, which implicitly conveyed the threat of stress, additional cost and adverse rulings, among other things.

Don't worry. As good as your attorney may seem to you, please remember that there are plenty of good attorneys around and your present attorney can be replaced with another attorney. In fact, in most cases, your present Collaborative attorney can help you find another excellent attorney and then help transition the new attorney in. (I almost hate to disclose that all attorneys are replaceable, but it's true.) There is certainly an additional cost, but that's just part of the incentive for you.

Managing Finances: Collaborative Divorce vs. Litigation

2008-08-18T20:48:00.000-07:00

In a recent post in my other blog (Divorce and Family Law in Tarrant County, Texas), I wrote about an article that originally appeared in Divorce360.com. It was advice about how to manage your finances in a divorce. It was obviously written from the perspective of a litigated divorce instead of a Collaborative divorce. There were a few points that I would have explained a little differently, but the article overall was very helpful. Later, I looked at the article from a Collaborative perspective and it was amazing how different my comments would be. The following are the main points raised in the original post, with my comments and explanations showing the contrast between litigation and Collaborative Law.

1. Know what you have. Instead of figuring this out when the divorce is ending, in Collaborative cases we start exchanging information during the first or second meeting. In addition, we often bring in a neutral financial professional (FP) who helps both parties gain an understanding of the assets, liabilities and future needs for both parties. My experience is that the Collaborative parties generally end up with a much greater knowledge of their finances because it is so openly discussed and professional help is utilized.

2. Think about where you're going. Again, this is done at the outset and reviewed often during the Collaboration process. The parties usually start at the first joint meeting discussing and recording their respective goals. Throughout the process, they refer back to the goals to make sure they are still on track to accomplish their goals. That is almost never done in a litigated case. In litigation, the parties usually just stake out arbitrary positions and try to get to another arbitrary position. Rarely do the parties in litigation spend time developing their goals or targets and the strategies to accomplish them.

3. Keep track of your credit rating. Again, that's pretty good advice. In a Collaborative case, the parties fully disclose their finances from the beginning. If desired, either or both parties can obtain their credit records to review. And then they would share that information with their spouse.

4. Save something every month. That's good advice, once the divorce is over with. Most people going through a divorce will spend a while adjusting to a new financial situation. The most common challenge is how to support two households on the same income that was basically consumed supporting one home. Still, with a financial neutral helping the parties create a plan and a budget, the parties are in a pretty good position to start saving. In a litigated divorce, the parties are usually on their own and often lack the information, skills and motivation to start saving. Many parties in a Collaborative divorce make saving one of their important goals, so they discuss it and plan for it from the beginning.

5. Close all joint accounts. This is done by agreement at an appropriate time in a Collaborative divorce, after discussion among the parties and neutral financial expert.

6. Educate yourself about money. That certainly happens in a Collaborative divorce. It's often true that one party in a divorce knows more about the finances than the other party. In a Collaborative case, the process provides an education for the party who starts out with less knowledge. Besides having an attorney advisor, each party gets copies of all the financial records that are relevant and, in most cases in North Texas, a neutral financial professional is involved. The FP helps to educate the parties about what assets and liabilities there are and what opportunities are available. In litigation, the neutral FP is missing, so understanding the finances is often much more difficult.

7. Don't panic. Panic is usually not an issue in a Collaborative case. The parties work with specially trained attorneys, a neutral communication coach (usually a mental health professional) and a financial professional in a less stressful and more effective environment than is available in litigated divorces. On the other hand, it is understandable how parties might panic in a litigated divorce with its lack of support and highly stressful atmosphere. Setting goals, gathering and analyzing information and then making decisions with the aid of knowledgeable professionals seriously reduces the possibility of panic.

Clearly, many of the valuable bits of financial advice given for a litigated divorce simply don't apply in the Collaborative Law context. The concerns found in litigation are no longer significant in the Collaborative approach.

Child Support and Professional Athletes: Finding a Better Solution

2008-08-13T19:55:00.000-07:00

Professional athletes, like other parents, have to deal with child support issues when they don't live with the other parent of their children. Whether the issue arises in a divorce or in a paternity case, or in a suit to modify a prior order for child support, there are special circumstances that need to be considered. Professional baseball, football and basketball players often have child support cases in Texas. There are also some hockey and soccer players as well. Professional athletes can incur significant obligations for child support and must make sure an appropriate amount is ordered. The obligations can go up to 18 years or more, so there is a substantial amount of money at stake for a long time. In addition, the mothers of their children sometimes have special concerns, as well, that need to be addressed.

Because of the unique nature of their employment and because of their often high profiles in the community, professional athletes in Major League Baseball, the NFL, NBA, NHL, soccer leagues and various minor leagues, are probably better served by using Collaborative Law to resolve their family law issues, especially related to child support. Collaborative Law provides a private, respectful and creative environment for solving family problems. It provides a means to create unique solutions and not have everything exposed to the press.

1. How does the process start? To use the Collaborative process, both parties must hired trained Collaborative attorneys. Parents should get some understanding of how the Collaborative process works (I won't go into detail about that here). If it seems like it could work, then the parties should contact Collaborative attorneys near where they live. I normally recommend bringing in a neutral mental health professional who acts as a communication facilitator and a neutral financial professional who works with both sides providing analysis, tax information and projections, among other things. Using both other professionals makes the process work more efficiently and more effectively, as well as being more comfortable for everyone.

2. Determining paternity. If the parties have not been married, a DNA test is usually done so there is no question later about paternity, even in cases where both parties are certain about parentage. If there is a possible question of paternity, then the DNA test is essential. The alleged father must take the test in a timely manner, either by agreement or by court order. Failure to submit a DNA sample can be a reason to be found to be the father. DNA testing is quick, painless and very accurate.

3. What if a letter about possible paternity and child support comes from the Texas Attorney General? If you receive a letter, or get served with papers, from the A.G.'s office, you need to contact your attorney right away. Failure to respond might result in you being named the father of the child, even without a DNA test. Again, you need to immediately discuss the situation with an attorney.

4. How is child support set? In a Collaborative case, the support is probably going to be set based on the needs of the child(ren) and the goals of the parties regarding how the children are going to be raised. In a litigated child support case, the approach is a little more rigid. Each state has a different system and the federal government is very active in pushing collection of child support, but the feds don't yet have a uniform system of setting support for all the states. In Texas, support is calculated from the parent's net income resources. Usually, the support is 20% for one child and 25% for two children, for example, but the state statute allows some variation based on a long list of factors. In addition, if the parent has multiple children by different mothers or fathers, the calculation is different. It is best to visit with an attorney to figure out the possible child support.

5. What are some of the complications? The following are some of the factors that exist and make Collaborative Law the preferable means of resolving the issues.

Few professional athletes have truly guaranteed contracts. Even when large contracts are signed, payments may be deferred and salary may not be guaranteed. Some contracts have a lot of incentives, which perpetuates uncertainty.
Minor league players make a lot less than major league players and also are subject to significant uncertainty. They may never make it to the big leagues and should pay support based on their actual income, but there could be some creative arrangements to increase the support if the player gets called up to the big leagues.
A player can have sudden changes in income from such factors as injury, getting cut, sitting on the bench and having the next contract reduced, or retirement.
Another complication, although a good one to have, is the possibility of having a high income at some points in a career.
Most professional athletes have a relatively short career, so child support based on a high income should be able to be adjusted.
There may a difficulty in setting an appropriate amount of child support when income is very high. In litigation, the child support would be based on provable needs above the standard amounts of support. In Collaborative Law, other standards and goals could be used to establish the level of support.
Both parties would likely want to avoid publicity and keep their financial affairs out of the public eye. In addition, unfavorable publicity for the athlete can adversely affect the athlete's ability to pick up endorsements and secondary income. Collaborative Law allows the parties to keep the issues and facts private.
If a child has special needs, they can easily be addressed through the Collaborative process.
If the parents don't get along very well, working with the neutral mental health specialist in the case might lead to some improvement in attitude and cooperation between the parents.
If the athlete becomes disabled, the Collaborative process can provide an appropriate way to adjust the support.
Some athletes play for pro teams overseas and that leads to a number of complications, including the cost of living overseas, what expenses may be reimbursed, the uncertainty of payment and the length of the contract, among other things.

6. What can be done? I recommend the parties use Collaborative Law. It is a private process which is controlled by the parties who are assisted by appropriate experts. No order is signed unless the parties agree on it. The system is focused on the underlying goals and needs of the parties and it produces creative new solutions to the problems mentioned above. The first step is to locate and meet with an attorney trained in Collaborative Law. It is the best solution for both the parents and the children who are involved.

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

2008-07-25T21:15:00.000-07:00

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

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

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

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

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

Why Do We Spend Time Writing Our Goals?

2008-07-15T21:15:00.000-07:00

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

Top 10 Reasons Why Doctors Prefer Collaborative Law

2008-07-01T21:07:00.000-07:00

Over the past few years, I have noticed that a number of physicians facing divorce have become fans of Collaborative Law as the best process for them and their families. Many doctors (or their spouses) have researched and discovered the process on the Internet. After I discuss the possibilities with them, doctors and their spouses almost always are enthusiastic about trying the process, even if they hadn't heard about it before. Here are some of the reasons why it is appealing for physician divorces.

Privacy and control. In contrast to how litigated divorces proceed, Collaborative divorces permit a private process where the parties control the timing and outcome. Meetings are conducted privately and decisions are made by the parties in joint meetings where both sides are encouraged to participate and ultimately make their own decisions. Parties don't waste time at the courthouse and don't have to fit their schedules around the judge's availability.

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

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

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

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

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

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

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

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

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