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.