Wednesday, December 24, 2008

5 Tips on How to Tell the Kids

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.

Friday, December 19, 2008

Don't be Listening to Others

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!

Sunday, December 14, 2008

The Importance of Keeping Your Word

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.

Monday, December 8, 2008

Resolving Tough Issues is Hard Work *

*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.

Friday, December 5, 2008

House Rules for House Sharing During Divorce

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!


Sunday, November 30, 2008

What is a Practice Group?

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

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

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

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

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

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

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

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

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

Tuesday, November 25, 2008

Five Ways Gratitude Will Change Your Life

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

" 'Thank you'

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

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

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

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

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

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

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

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

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

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

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

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

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

Wednesday, November 19, 2008

Is Collaborative Law a Threat to the Court System?

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.

Monday, November 3, 2008

What is an Agreement Incident to Divorce?

*and Why Should I Be Interested?

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

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

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

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

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

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

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

Friday, October 31, 2008

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

Tonight, most folks will be inundated by little monsters, princesses and really cute little creatures who all seem to be knocking on doors and saying the same thing, "Trick or Treat!". Hearing that phrase got me thinking about how so many things in life seem to be either-or situations: black or white, young or old, smart or dumb, rich or poor, etc. We've grown accustomed to thinking in dichotomies with seeming opposites being the only choices.

In reality, not only are there gray areas (gray color, middle age, normal intelligence, middle class, for examples), but if we look, we can usually also find alternative choices. One of the most significant benefits of Collaborative Law is that it actively promotes the creation and consideration of new options through the decision-making process.

The Collaborative process usually involves following several steps. First, the goals are set out for each party so everyone knows what needs to be accomplished. Second, information is gathered about the parties' situation. Third, the parties brainstorm and come up with as many options as they can. Fourth, the options are evaluated by the parties. And fifth, the parties negotiate and reach an agreement. That framework has proven very successful in helping parties create solutions that they both like.

While all the steps are important, the brainstorming session is often the most interesting and enlightening. When they try, parties are able to come up with great new ideas and solutions that are acceptable to both parties. That is a vastly different situation from old-fashioned litigation which relies mostly on standard guidelines and formulas, as well as "what the judge always does in similar situations".

For those interested in finding new ways to solve problems, Collaborative Law is the way to go. For those who find security in the tried and true either-or responses to issues, litigation is the appropriate approach. Collaborative Law is sometimes difficult, but ultimately is rewarding in many ways as I have previously discussed on this blog. Hopefully, you won't be scared to try something new and challenging, even on Halloween!

Sunday, October 26, 2008

The 1st Joint Meeting -- Building a Foundation

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

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

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

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

Thursday, October 16, 2008

Collaborative Law Works in Britain, Too

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

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

Saturday, October 4, 2008

Another View of How to End an Impasse

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

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

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

There are several ways to break an impasse.

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

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

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

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

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

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

Sunday, September 28, 2008

Why Professional Athletes Have Prenuptial Agreements

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

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

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

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

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

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

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

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

Thursday, September 25, 2008

Is Collaborative Law Cheaper than Litigation?

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

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

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

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

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

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

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

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

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

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

Thursday, September 18, 2008

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.

Tuesday, September 16, 2008

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.

Wednesday, September 10, 2008

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.

Saturday, September 6, 2008

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.

Monday, September 1, 2008

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.

Monday, August 18, 2008

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 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.

Wednesday, August 13, 2008

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.

Friday, July 25, 2008

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

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

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

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

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

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

Tuesday, July 15, 2008

Why Do We Spend Time Writing Our Goals?

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

Tuesday, July 1, 2008

Top 10 Reasons Why Doctors Prefer Collaborative Law

Over the past few years, I have noticed that a number of physicians facing divorce have become fans of Collaborative Law as the best process for them and their families. Many doctors (or their spouses) have researched and discovered the process on the Internet. After I discuss the possibilities with them, doctors and their spouses almost always are enthusiastic about trying the process, even if they hadn't heard about it before. Here are some of the reasons why it is appealing for physician divorces.
  • Privacy and control. In contrast to how litigated divorces proceed, Collaborative divorces permit a private process where the parties control the timing and outcome. Meetings are conducted privately and decisions are made by the parties in joint meetings where both sides are encouraged to participate and ultimately make their own decisions. Parties don't waste time at the courthouse and don't have to fit their schedules around the judge's availability.

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

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

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

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

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

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

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

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

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