Having a "Good" Divorce

Occasionally, I hear someone comment that a friend was lucky to have a "good" divorce. If it was a traditional divorce and it didn't get too nasty, bitter or expensive, that friend was indeed lucky. Nowadays, it is possible to have a good divorce without being lucky. Now, it can happen if one is smart and willing to work with one's spouse. If both parties want a good divorce, they can choose to use Collaborative Law.

To me, a good divorce is one that is civilized, rather than a battle to gain a big advantage over their spouse. A good divorce utilizes neutral experts who provide guidance so that both parties can win.

Sometimes, both parties want the divorce. Sometimes it's only one of the parties who wants it, but even the party opposed to the divorce recognizes that it's better not to fight. It's better to be creative and focused on problem solving. That's a good divorce.

A good divorce has a lot of communication. It goes on between the parties, between the attorneys, and between the other professionals brought in and the attorneys and parties. That communication from all angles helps avoid conflict and minimize problems. It leads to more understanding of each other and the willingness to compromise and support each other's goals.

A good divorce may be one which is negotiated in private, respectful meetings.

There will be conflict and disagreement in a good divorce, but the parties and professionals will be better able to deal with the problems and respect each other's interests and needs. A good divorce provides the tools and structure to address the issues in conflict and find solutions that are acceptable to both parties.

Collaborative Law provides the best opportunity to have a good divorce. People considering or facing divorce should contact a Collaborative Lawyer to find out if it would be a good option.

Mineral Rights -- No Longer Ignored

Whatever your position is on whether and where gas drilling should be permitted in Tarrant County, Texas, there is a lot of leasing going on and mineral rights have become a hot topic in divorce cases. In a Collaborative Law case in Tarrant County, mineral rights need to be on the agenda when dealing with property division. The mineral rights can come into play in several ways.

(1) The parties may own rural land in Tarrant County. If there's been no oil or gas leasing, someone will probably want to buy or lease the land (and minerals). Either way, there's some money to be made that can be divided along with the other assets of the marriage.

(2) If the parties own some developed land in Tarrant County, there probably has been or will be some leasing activity in the area. Some companies are buying properties, but most are just leasing.

(3) If the parties own any property in other counties, they should investigate whether there is any oil or gas activity in those areas. The biggest gas field in Texas right now is centered around Tarrant County, but oil activity is picking up around the state as the price per barrel continues to climb.

(4) If the parties' land is already leased, the royalties (if and when received) can be shared. If the initial bonus payment is still around, it can be divided or offset between the parties.

(5) Leases have generally been more profitable when neighborhoods band together or land owners lease large tracts. It's probably better not to try to negotiate a lease individually.

If your Collaborative attorneys don't know much about mineral rights, they can bring in an oil and gas specialist to help out, just like a parenting specialist or divorce financial planner is often brought in. While mineral rights may not be a big issue in other areas, in Tarrant County, they can have a major impact on the bottom line and they should not be ignored.

5 Tips for Choosing the Right Collaborative Law Attorney

I and others have written about how to find a lawyer for a litigated family law case. There are many good suggestions in that context that could also apply in a Collaborative case. There are some different considerations and qualifications relating to Collaborative Law. Here are 5 tips to help you locate a quality Collaborative Lawyer in Tarrant County, TX.

• Make sure the attorney is qualified and experienced in Collaborative Law. Find out if the attorney is a board-certified specialist in family law. Look at the attorney's web site and any directories he/she may be on. You can also check the State Bar of Texas web site for information about an attorney, but an even better source is the web site of the Collaborative Law Institute of Texas. Most experienced Collaborative attorneys are members of the organization and there is a long page of background information about most members on the web site. You can call and ask about the types and number of Collaborative cases the attorney has handled, or you ask questions in person, when you meet with the attorney.

• On a related subject, make sure the attorney has had plenty of training in Collaborative Law. It is so different from litigation that attorneys must be re-programmed so they can act appropriately and manage meetings. Attorneys do well if they have some training each year and have had some recently. All attorneys should have had at least one 2-day basic course in Collaborative Law. When meeting with a prospective attorney, feel free to ask about the attorney's training.

• You want the attorney to be comfortable and competent in working with financial and mental health professionals. My experience has been that bringing in the two other professionals increases the probability of success and makes the process work better for the parties.

• The attorney should be active in his/her field. There are several groups that can be joined, such as local practice groups, CLI-Texas (the statewide organization) and IACP, an international organization of Collaborators.

• Last, but certainly not least, you should decide (after personally meeting with the prospective attorney) whether the chemistry between the attorney and you seems good. You will be having a number of joint meetings and even more short meetings with just your attorney. Make sure that the relationship seems right. Go with your gut feeling.

The way to find a good Collaborative Lawyer for yourself is to mix some common sense, follow general advice about hiring an attorney (get referrals, check similar experience, etc.) and then look for the specialized qualifications that outlined above. Good luck!

Hold Your Horses!

One of the biggest challenges in Collaborative Law is impatience. Sometimes, after the parties learn about the process and commit to using it, they suddenly grow very anxious to have the matter resolved. Even when the attorneys and other professionals explain the standard approach of five steps (set goals, gather information, identify issues, brainstorm and negotiate to resolution), some parties almost immediately forget about the first four or five steps and want to start the final negotiations without doing some or all of the preliminary steps.

Even when the parties and professionals spend valuable time establishing and clarifying the goals, needs and interests of each party, they are often quickly forgotten. Being very close to the issues, the parties often insist that they want the process to be completed in a very short time. They become very impatient and are often motivated by wanting to save money by "streamlining" meetings and taking shortcuts. The easiest and most logical way to do that is to independently come up with a suitable settlement. The party creating it usually becomes convinced that the plan is not only logical and inevitable, but it is the best for both parties. Occasionally, that is true, but more often the plan is unacceptable to the other party. Usually, the plan is conceived by one party only and is evaluated from only one perspective. It becomes a very uncollaborative process as one or both parties become motivated by quickly obtaining a result and finishing the settlement.

The Collaborative process works best when the parties follow the standard five steps. Sometimes that slows down the process from one side's perspective, but the other side is usually happy with the pace and especially with having input into the information gathering and the decision-making. It can be very helpful for the professionals to repeatedly remind the parties of the need to follow the standard structure of the process. Another helpful idea is for the professionals to explain how long the alternative, the litigation system, takes in common types of cases in that locale. A three-month long Collaborative case sounds quick when compared to a litigated case which usually takes about a year or more in Tarrant County, Texas.

A solution is much more likely when both parties contribute at every stage. That often means that one party believes the process moves too slowly. That cannot be avoided since the process will only move as fast as the slower participant. Usually, one party is moving more slowly through the emotional stages of a divorce and there is not any way to force the party to speed up the processing of the feelings and experiences.

If one party pushes the process and the other party to speed up a settlement through Collaborative Law, the result will often be complete failure of the effort to reach an agreement. If the parties will slow down, adjust their expectations and just work with the Collaborative professionals, they generally will reach an agreement.

Collaborative Law is Good for Children

The Science Daily headline from May 8, 2008 contained the full message: "After Divorce, Stable Families Help Minimize Longterm Harm to Children".

One of the best things about Collaborative Law is that it encourages and relies on cooperation between the parents. Co-parenting skills are often taught and sometimes a child specialist works with both parents in creating a parenting plan that provides stability and access for everyone. Avoiding a tug-of-war contest between parents is really beneficial. Add to that planning and forethought, and a healthy environment can be maintained or created for the children.

The Science Daily article discussed a study at Ohio State University. "The study compared children who grew up in three different situations:

• Children who grew up in always-married households (5,303 children).
• Children whose parents divorced before the study began, but who lived in a stable family structure between ages 14 and 18(954 children).
• Children whose parents divorced prior to the beginning of the study, and whose family situation changed once or twice between ages 14 and 18(697 children).

"In the two divorced family groups, children may have lived in single-parent families or ones with a stepparent. The key for this research was whether that arrangement – whichever it was -- changed between ages 14 and 18).

"The researchers compared how children in these groups fared on measures of education, income and poverty in 2000 when they were 26.

"Results showed that young adults who grew up in stable post-divorce families had similar chances of attending college and living in poverty compared to those from always married families. But they fared less well on measures of the highest degree obtained, occupational prestige and income.

"However, the young adults who lived in unstable family situations after their parents divorced did worse on all measures. In fact, they fared more than twice as poorly on most measures compared to their peers who had stable family situations."

Here's my interpretation and opinion:

Although there have been no scientific, long-term studies about the effects of a Collaborative divorce on the children, it is reasonable to surmise, considering the Ohio State study, that the Collaborative skills used by the parents to produce an agreement will often or even usually carry over to the post-divorce lives of the parents and children. Clearly, one of the most important advantages of Collaborative Law is that it enables the spouses to maintain important family relationships on relatively good terms in spite of the divorce. That will help create a more stable atmosphere for the children.

In addition, the parties may be better off financially after a Collaborative divorce as compared to a typical litigated one. While we really can't compare the costs of a divorce with the cost of how a divorce might have been (too many variables), it appears that there can be some savings in a Collaborative approach because of the cooperation and avoidance of unnecessary busy-work steps. The result is that the parties often are going to be not as financially devastated as they are in a typical litigated divorce. Starting post-divorce life in better financial shape will make it easier to be financially stable, which can be a major part of overall family stability.

My conclusion: Collaborative Law will encourage and enable a safer, more stable environment for children after a divorce, and that's certainly better for the children in terms of education, income and poverty.

Thanks to Jeffrey Lalloway of the California Divorce and Family Law blog for the mention of the Ohio State Study.

I Don't Want to Lose My Lawyer

One of the most common complaints about Collaborative Law is that if the process breaks down, both attorneys will have to withdraw. Some parties spend a considerable amount of time selecting an attorney. They may rely on the advice and information offered by friends or trusted advisers. They may have researched quite a bit on the Internet. After hearing how experienced, effective and knowledgeable an attorney is, a client often is reluctant to agree to a process that could not only fail, but which could cost the chosen attorney.



In a similar vein, after starting work on a file, many attorneys are reluctant to agree to withdraw from representing a good client just because the negotiations were unsuccessful. Sometimes, the failure to reach an agreement is the fault of the other party. Either way, it may not seem "fair" to have to withdraw.



As an attorney, I certainly understand the discomfort in agreeing to possibly withdraw, and I can sure understand how many clients feel. Nevertheless, as much as I would like to think that I am indispensable, I have to admit that there are many other quality attorneys with plenty of knowledge and experience who can more than just adequately represent my client. In other words, the biggest potential loss may be for me to lose a client. Intellectually, I know I am clearly replaceable. There are many fine attorneys available who can litigate a case if needed. I just hate to lose the business, and I think that is generally true for all attorneys.



Actually, my opinion is that the withdrawal requirement is one of the best mechanisms to help ensure success in the Collaborative process. The fact that both the attorney and the client have a lot to lose creates an incentive to negotiate seriously, in good faith, and not give up. It is very easy to reach a point of disagreement and have one party or both get tired of arguing and say, "If you don't agree to this, I'll just take you to court and let the judge decide." Fortunately, that's not an option in a Collaborative Law case. Instead of just punting an issue to a judge, the choices are to become creative and find new solutions or go out and hire new lawyers so you can go to court.



As a result, the great majority of Collaborative Law cases are successful in reaching agreement. The logical sequence of setting/defining goals, gathering information, brainstorming and then negotiating to reach an agreement is very successful. Collaborative cases also encourage the creative use of other resources, such as neutral experts for various issues. In Collaborative Law cases, the parties are not bound by the "standard" approaches or guidelines. In fact, they are encouraged to think outside the box and to try other unique solutions.



The bottom line is that attorney withdrawal provision in the Collaborative agreement is one of the most important reasons why the process works. It provides the best incentive for both clients and attorneys to work together effective to solve the marital problems.

Save Your Marriage with a Postnuptial Agreement

In a post yesterday, Sam Hassler, who writes the excellent Indiana Divorce & Family Law Blog, wrote about postnuptial agreements again. These are agreements that are signed during a marriage which divide some or all of the property and debts of the spouses. They can specify who controls various assets and who is responsible for various decisions. The agreements can also cover assets and income that may be acquired in the future. There are many things that can be done with such an agreement and just as many purposes for creating them.

Sam referred to an article in CNN.com that discussed a benefit of postnuptial agreements that isn't often discussed. It mentioned a case where a husband and wife could not agree on significant debt and property issues to the point that their marriage was under a strain. That is not an unusual situation. Rather than get a divorce, however, they decided to do a postnuptial agreement. It was one of the best things they could have done.

As the CNN.com article noted,

" 'In cases where couples want to stay married, it can apply very efficiently,' says Cambridge, Massachusetts, attorney John A. Fiske. 'If they don't want to stay married, it's hopeless.'
"The Boston couple, who had been married 30 years, fell in the former camp. Fiske helped them put into writing a mutually acceptable financial plan. They agreed to transfer their house into the wife's name, both to address her fear of losing the asset and to insulate it from the husband's business debts, and to split the mortgage and other household expenses.
"That was 18 months ago, and they credit the post-nuptial agreement with helping them become a mutually supportive couple again."

The CNN article actually talks about mediation, but Collaborative Law would work very well in this situation. Using the Texas model, we would bring in a neutral financial advisor to help both parties find beneficial ways to meet their needs and goals. Each party would have his or her own attorney to make sure the process worked to everyone's advantage. There have been cases in Texas where the parties started a divorce proceeding and later switched to working out a postnuptial agreement when they realized that they still wanted or needed to be married, even though there were some significant financial issues that were splitting them apart. In such a situation, the Collaborative process is a great way to create a new financial arrangement between spouses and possibly save a marriage.