Texas Collaborative Law Blog Honored

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

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

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?

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?

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

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

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.