Texas Collaborative Law Blog

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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!

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!

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.