Slowing Down for Interim Issues

Sometimes, the biggest irritants come in the smallest packages.

In Collaborative cases, and sometimes in litigated divorces, people can end up spending a lot of time on the small stuff, rather than the big issues like dividing pensions, what to do with the house and how to share the rights and duties of parents.

There are often other issues, such as the following, that can really slow down the settlement process and add some stress to the proceedings.  Consider what can happen with disagreements over:

• Dividing up furniture between the parties.  Usually, it's not a big issue, but sometimes a piece or two of furniture can have a lot of emotional attachment. 

• Whether to buy a house during the divorce or afterwards.  Most of the time, a purchase is done post-divorce, but there may be reasons or opportunities to consider while everything else is up in the air.  Financing and ownership rights can be handled, but it takes extra work during the divorce.

• Getting a new car.  This often comes up, especially when the other spouse manages to get a new car just before the divorce is filed.  Again, financing and ownership can be a little tricky, and the new payment will affect future budgets. Plus, the spreadsheet has to be adjusted to reflect new debt and probably the movement of some cash for a down payment. 

• Disagreements over credit card use.  It's just another thing to fight about or a way to try to control the spouse, depending on one's point of view. 

•  Getting bills paid.  How living expenses are divided during the interim can be a big issue, if cash flow is limited. 

• Visitation.  How time with the child is shared by the parents may be easy to work out or extremely contentious.  In Collaborative cases, thankfully, we have the parents first work with the Mental Health Professional (MHP) or a child specialist.  This is actually a very serious and important issue, so it will take a long time if there are major disagreements. 

• Travel plans.  Because children are involved, it's sometimes hard for a parent to let go and trust the other parent on big travel plans.  Then there's the element in some cases of being able to afford the proposed trip. Some parents have trouble adjusting to a reduced standard of living. The MHP is often a big help on this type issue. 

• Vacations.  This is a recurring issue, especially at the beginning of separating the family into two families. Who gets to make the summer plans or how do we alternate or coordinate the control over planning? This can be a big emotional issue and can stall progress toward a settlement.

All of these issue may appear rather insignificant initially, but can blow up to big, difficult issues that eat up a lot of time.  At least, with Collaborative Law, each party has the full opportunity to participate in the decisions to resolve the issues.

The point to remember:  These are often serious issues and they can take a considerable amount of time to resolve.  It's important to efficiently work on them, but make sure everyone feels good about the decisions. The divorce process will slow down, but it can't be helped. The best strategy is to try to be flexible!

What to Do if You Are Uncertain

People come to a decision about filing for divorce in different ways.  Some are unexpectedly confronted with a demand or request for a divorce. Others think about it for a long time before making a decision.  Still others want to talk to someone about the best course of action. Some want to come up with a specific plan of action before beginning. And there may be other steps followed by other people.

This post is for those people who have started considering divorce, but just aren't yet sure whether to go that route or to stay and try to fix the marriage.  If you find yourself wondering what to do, here are some suggestions.

1.  Find an attorney.  Yes, be prepared to pay for a consultation if you want to have a serious discussion of the pros and cons.  A good family lawyer will not try to talk you into a divorce.  Experienced lawyers know that there are sometimes good reasons to stay in what has become a difficult relationship, as long as your safety is not compromised. You can talk to your friends, neighbors, hair dresser, relatives and others, but they won't have the same educated and broad overview that an attorney will have.

2.  Discuss the processes and possible outcomes.  There are different ways to get divorced, not just the common way of litigating in court.  One size doesn't fit all.  You should try to understand your options and figure out which would be best for your situation.  Again, don't rely on your friends for this information.  An attorney will be able to compare litigation to mediation to Collaboration to informal negotiations. It's OK to take some time to think it over.

3.  Decide on your timing. It may be better financially to wait a while or it may be better to go ahead and file so you can finish before the end of the year.  On the other hand, maybe you should wait since your needs and expenses may change over time. Or, it may take a while for you to decide whether you really want to move forward on a divorce. Choose what benefits your situation best.
 

Take your time.  Get help.  Look at the situation from different angles.

What Happens Between Meetings?

As we start a Collaborative case, at the first meeting we typically schedule three or four meetings after the first one.  Those meetings will be an average of two or three weeks apart.  Some people, who may be in a hurry, want to meet every week or at least every other week so we can get it over with.  Unfortunately, that timing is unrealistic for reasons mentioned in my July 1 blog post.  In addition, there are good reasons why the sessions need to be spaced out.

1.  We need time to develop the parenting plan.  Usually, we have the clients meet, without the lawyers present, with the neutral Mental Health Professional (MHP) or the child specialist. It sometimes takes two or three meetings to get the details worked out.  Once the MHP and the parties put together a draft of a parenting plan, the MHP writes it up and then we all discuss it at a joint meeting.

2.  We need time to gather and organize the financial information.  The neutral Financial Professional (FP) identifies and requests the information needed  and then collects the information directly from the parties. This is just a reporting step and no plan is produced at that time for the property division.  The FP usually creates a spreadsheet with the financial details which is then reviewed at the next joint meeting.
   
3.  Professionals plan meetings. They communicate by email or conference calls to discuss on-going issues and to plan the agenda for each meeting.  They normally debrief after each meeting and often meet before each joint meeting so everyone knows what's going on.

4.  Attorneys meet or talk with their clients to prepare for meetings. We like to check in to find out if there are any new issues.  We also work on developing options that can be discussed at joint meetings.  In addition, we answer clients'  questions.

5.  Clients  do homework.  Ideally, the professionals are working less than he parties are.  It is important for the clients to gather information and to think about the issues before we go into joint meetings.  They can work with their attorney and the other neutrals, but each person will have to provide information and ideas in order for the process to work.

Because this is a creative process where we don't  necessarily follow standard guidelines or procedures, people using Collaborative Law have an active role in the process.  Important activities take place outside of the joint meetings.  With all that activity, we have to space out the meetings, but we are using the time constructively.

Being Creative with Child Support

Using the Collaborative Law process, we feel impelled to be creative with solutions, even where there are standard guidelines in the Texas Family Code for such things as how to set child support. In most litigation cases, the child support amount is quickly set by following the standard formula.  The Code deals with the amounts of income and the number of children before the Court, as well as considering if there are other children that need to be supported.

There's nothing wrong with the guidelines, but they seem mechanical and may not fit some situations.  When we're in the Collaborative process,  we usually consider other approaches, although we sometimes go back to the guidelines.

For those looking to be a little more original and creative, here are some quick ideas to think about:

1.  Correlate the support to the amount of time each parent has the child.  One way to do it is to decide that the support paid by a parent is reduced in relation to the amount of time that parent has the child. That makes some sense because obviously the expenses for the child grow for a parent as the parent has more time with the child.

2.  Set up a fund to pay certain expenses.  If the parents expect the child to participate in expensive activities, such as select sports or high-level dance or music lessons, they may be able to set aside existing money in a savings account.  They can move funds into a designated account that would pay all or most of the expenses for certain activities.  That would eliminate the need to communicate and negotiate for payment of the extra expenses.

3.  A parent could agree to pay all or a part of expenses for the child within a specified range.  For example, a parent could pay up to $2,500.00 per year for all extracurricular expenses. Where one parent has more resources than the other, that's a good way to try to keep the child in a standard of living similar to how they were living before divorce.

4.  A parent could agree to pay all or part of all extracurricular activities, regardless of the amount.  For example, a parent could pay for all baseball or dance or music or cheerleading expenses.

5.  For special needs, the bills could be allocated between the parties.  If it's known in advance, the bills can be assigned.  Another way is for each parent to contribute specified amounts to a fund to pay the for special needs.

6.  The parties could read about how other states do their child support and may choose someone else's scheme or choose parts of other states' plans.  Texas doesn't have a monopoly on good ideas and there are some worthwhile plans around the country.

7.  The child support could be adjusted to consider the community and separate property and debts of the parties.  If someone has more assets, maybe they can afford to pay more support.

These are just a few ideas. There are lots of ways to meet the child's needs and minimize conflicts between the parents. Please share any good ideas you have for customizing child support in the Collaborative Law process.

Why Can't We Move Faster?

For many people, it seems like Collaborative cases should move very quickly.  These are generally parties who are emotionally ready for the divorce.  Most people go through several stages of emotions, when facing divorce -- anger, denial, bargaining and acceptance -- in various orders and degrees.  If they get a head start on their spouse and have reached a point where they are ready to be divorced, they often become impatient.  Then, they frequently have trouble putting up with a process that moves deliberately.

Here are some reasons why the Collaborative Law process may slow down.

1.  Collaborative cases can only go as fast as the slower party wants to go.  If one person isn't emotionally ready to be divorced, the process will have to move slowly.  We will follow the steps of the process, but it will be difficult to finish until both parties are ready.

2.  We need time between meetings.  We actually get a lot of work done between joint meetings.  Information is gathered and organized.  Parties and professionals have time to reflect on what's going on at meetings and to plan what to do at the future meetings.  The parties and attorneys meet or talk about the issues and consider different options. Getting work done between joint meetings saves time when we all get together.

3.  Scheduling is complicated.  With at least 6 people involved, it's hard to quickly have one meeting after another.

In the end, speed is a relative concept.  What seems fast to someone not ready for a divorce may seem very slow to someone ready to get married to a new spouse or to start over as a single person.  However, generally, a Collaborative divorce with issues to be decided can move much quicker than a contested divorce.  If someone is judging the Collaborative process against the minimum waiting period of 60 days in Texas, any time exceeding 60 days seems very slow.  Unfortunately, that's the wrong standard for comparison.  If you think the process is dragging, please discuss with your attorney how long your divorce might take if you were litigating it.  I'll bet you will feel better with Collaborative Law.

Dealing with a Spouse Coming Out

While it is still fairly uncommon, we are starting to see more situations where a couple has been married a long time and "suddenly" one spouse tells the other that he/she is gay. That will generally end a marriage.

The spouse coming out has usually thought about it for a long time and often tries to avoid or fight the realization that he/she is gay.  Many times, the other spouse is totally surprised, but sometimes the spouse may have had suspicions or there may have even been some discussions in the past.  Either way, this will be a very difficult time for both parties.  It becomes way more difficult if there are kids.  There are often feelings of anger, denial, disappointment and fear.

Because this is such an emotional time, counseling can be very helpful for both spouses and children, but the counseling would be to help the parties adjust, not to undo the change of circumstances.

Assuming there's no turning back, the parents will face divorce.  With that, they should consider the "how" -- which process they will use for the divorce.  Will it be litigation,  mediation, do-it-yourself or Collaborative Law? Given the name of this blog, it should be no surprise that I recommend Collaborative Law.  Here's why, based on my experience:

1. Privacy.  Many people would prefer to keep their personal business and finances private.  That would be true in many cases where a party is coming out, depending on how public they are willing to make things.  In Collaborative cases, the process is private from the beginning.  Litigation is not and litigation is often used prior to going to mediation.  The process of mediation is private, but it does not have all the attributes of Collaborative Law. (see below)

2. Flexibility.  Collaborative Law provides great flexibility in timing and outcome.  You can work at your own speed (whatever both parties agree to) and there are very few limits on the terms of your agreement, as long as it is clear and enforceable.  In litigation or do-it-yourself, and sometimes in mediation, your schedule is at the mercy of the Court.  In litigation or do-it-yourself, the results tend to be according to guidelines and standard outcomes, rather than customized.

3. Utilization of a team of professionals.  This is only the case in Collaborative Law.  We normally use a team of two attorneys, a neutral therapist and a neutral financial advisor.  The therapist helps the parties to listen and communicate better and to deal with basic children's issues, if any.  The financial advisor gathers, organizes, reviews and explains all the financial information. You won't find that in any of the other processes.  In many cases, one parent has little knowledge of the finances while the other has had less involvement with the children.  The experts help level the playing field.

4. Civilized and less stressful.  For everyone going through a divorce, the future is uncertain.  The process of divorce takes an emotional toll on the parties.   Having specially trained attorneys, plus the neutral experts, creates a safer environment.  We plan and manage the meetings to reduce stress for the parties.  It is much easier to attend small meetings than it is to show up at the courthouse and possibly have to testify.

5. No duplicate experts.  We utilize a single, neutral expert for jobs such as real estate appraisal, business appraisal or tax considerations.  We can also use a child specialist if there are significant children's issues.  In litigated cases, it is common for each side to hire their own set of experts, which doubles the cost for the clients.

If you are facing a divorce after either you or your spouse has come out, you should find an experienced Collaborative Lawyer and discuss your situation to see if the process would be the best option for you.  Make sure the lawyer has handled a number of Collaborative cases and believes in the process.  Most Collaborative attorneys can handle litigation if you prefer that process, but not all litigation attorneys can do Collaborative work.  Good luck!

It's Not a 50-50 World!

While many people expect property and debts to be divided 50-50 on divorce, that rarely happens.  There are several reasons for that.

First, Texas law does not mandate, or even suggest, an equal division.  Texas law requires that property division be "just and right".  That leaves a lot of wiggle room.

Sometimes, there are great disparities of income between the parties.  In many cases, one party has been out of the workforce, taking care of the home, while the other spouse made a good living.  When a person rejoins the work force later in life, it can be tough to get a job at all, much less a good-paying one.  Even when both parties have been working during the marriage, disparities in income are still common.

There can also be health differences which affect both income and expenses.  If a party can't work or can do certain things, obviously their income will suffer.  In addition, one party may have chronic health issues that lead to much higher expenditures. Either way, it makes sense to help out the party with a greater need.

In some cases, one party may have significant separate property income or just plenty of separate property assets while the other party has little or none.  The party with more separate assets often just doesn't need the community assets as much as the party without separate assets.

In each of those situations, it makes sense to provide a little more help to the disadvantaged party.  

Both parties need to adjust their expectations when dividing property and debts.  There are rarely equal divisions in divorces.  Instead, it makes sense to focus on actual needs and abilities of each party.

Before you get started on your divorce, it's a good idea to discuss approaches to property division with your lawyer.  Don't proceed based on your assumptions about the law.