Thursday, January 29, 2009

Can't Afford to Divorce

It seems that more people are staying together because they really can't afford to divorce. A recent newspaper article from Birmingham, Alabama discussed the situation there. Although there is talk of that here in Texas, there have been no local in-depth surveys or studies. Nevertheless, the economy undoubtedly is having an impact. There are reports in Tarrant County that the number of new divorce filings is down. Here are some of the reasons why this is happening.
  • Can't afford the cost of a divorce. Divorces are expensive for everyone. Of course, the cost is often related to amount of fighting going on, but even a minimal amount of legal work can be expensive.
  • Can't afford to support two households. Doubling the house payment and utilities can be overwhelming when most people tend to live up to their income limits regardless of how much or how little income they have.
  • Lost a job. There have been overwhelming numbers of workers who have suddenly lost their jobs recently. Certainly, a job becomes the top priority, and the loss of a job creates huge financial and emotional stress for an individual and a family.
  • Lost retirement. While housing values are falling and people are losing their jobs, almost everyone who has retirement funds has suffered a substantial loss. It's the kind of loss that sends retired people back to work and puts off retirement for others. When you start talking about dividing up some significantly reduced retirement accounts, there may not be much retirement left after divorce.
  • Can't sell the house. It used to be that retirement funds and house equity were often the biggest assets of couples. With retirement funds shrinking, there's just not much left for some people because house values have also gone down and it has become much harder to sell and house.
So what's a person to do if he/she wants a divorce?
  • Consider staying together. Get some counseling and work together on common goals. Don't expect overnight solutions, but the greatest value may be staying together if both parties commit to working on solving their problems.
  • Try Collaborative Law. The problems outlined above call for creative solutions. The standard approach of dividing everything down the middle may not be appropriate or leave the parties with enough to get by. Following the Collaborative problem-solving process, starting with analyzing each party's needs and goals, a couple can be guided to to some creative solutions to adapt to the financial reality. In Tarrant County, and most of Texas, we utilize a mental health professional and a financial professional to help the parties and that improves the outcomes for the parties.

  • Borrow funds. If divorce is necessary and urgent, maybe the best course of action is to borrow the funds to pay for it. You can approach family members or maybe you have credit somewhere that you can use. Remember that you will have to pay back the borrowed funds, so spend your money wisely. Investigate whether you think it will be more to your financial advantage to take the litigation approach or to use Collaborative Law. Be sure to discuss your situation with a trained Collaborative lawyer before you decide.

  • Just wait. It's sort of the opposite of the Nike slogan. If you can't afford to divorce, if you can't borrow funds and if you can't figure out how a Collaborative divorce could save you money, then maybe you should wait.

Monday, January 5, 2009

What Does a Collaborative Lawyer Do? -- Part 1

In much of Texas, and especially in Fort Worth and Tarrant County, Collaborative cases are handled by lawyers who use the team approach. Collaborative lawyers are usually the entry point for parties who want to use the Collaborative process to settle their divorce or other family law matter. The lawyers explain the process to prospective clients. If the client is accepted for representation by a Collaborative lawyer, the lawyer usually will help the client provide enough information for the spouse to decide whether to proceed Collaboratively. If both parties end up with Collaborative attorneys, the attorneys normally will decide which neutral mental health professional to bring in to help the parties with communication issues. They also decide on a neutral financial advisor for the parties.

With all that help, some people might wonder if they really need a lawyer, and if they do use a lawyer, what role the lawyer would play in the case. Here are some of the ways Collaborative lawyers work with their clients.

1. Provide explanations of the law. The attorney will review and discuss applicable law with his or her client to make sure the client has any necessary information about Texas law. The parties are not limited to what the law provides, but sometimes the Family Code provides a good starting point. In addition, the attorney may be able to correct some mistaken information about Texas law and that can help the parties start with common ground. Sometimes it is also helpful to learn about the laws or other states and the federal government. That can help generate ideas for solutions.

2. Help you formulate your goals -- dig below the surface. The goals are extremely important to the Collaborative process. Identifying goals forces each party to think about the future and decide what will really be important to them. Goals provide a target and focus for the decision-making process that is followed in Collaborative Law. Sometimes an attorney must push a party to really explain why some action is beneficial and that helps the person clarify his or her thoughts about an issue so that the right things are pursued. The goals need to be high level, but somewhat specific objectives. Goals can be revised after the process is underway, but it really helps to make a strong effort at the outset to establish meaningful statements of goals.

3. Prepare you for meetings. Meetings are not spontaneous. They take place at scheduled times and places and follow a set agenda. The lawyers each tell their client about what is expected to happen. Knowing the subject matter in advance allows the parties to think through most of the issues they will be facing. Plans can be made for dealing with tough issues. Questions can be asked and answered privately. We follow a pretty regular format for resolving issues and the attorney can explain where we are in the process. Understanding what is going on helps create a safe and productive atmosphere for problem solving.

4. Review what happened at the meetings. After each joint meeting, the attorneys meet with their clients separately and review what went on at the meeting. The lawyers want feedback about how the meeting worked out for their clients. The attorneys can answer questions and explain how the process is working out, from the lawyers' perspective. Sensitive issues for both sides can be identified and strategies worked out for dealing with them. If something has been overlooked or not dealt with satisfactorily, the issue can been added to the next joint meeting agenda.

5. Work with the other professionals between meetings. It is sometimes necessary for all the professionals to have discussions between the joint meetings if there are any crises or significant questions that have arisen. They sometimes meet in person, talk by conference call or use email. They almost always meet before and after each joint meeting and will communicate as needed between the meetings. All of that discussion helps prevent surprises and make the meetings much more productive.

For attorneys in Collaborative cases, their roles are different from the way they operate in litigated cases, but the assistance is crucial in helping the parties reach an agreement. The next posting will add 5 more things attorneys do in Collaborative Law cases.

Thursday, January 1, 2009

Introducing Parents' New Boyfriends or Girlfriends

One of the significant benefits of using Collaborative Law and including a child specialist is that the parties can make thoughtful and appropriate decisions about how to best introduce their children to new adults in the parents' lives. Sam Hasler's Indiana Divorce & Family Law Blog has had two recent posts on the topic of visitation, children and sleep overs. There are no uniform rules on having boyfriends or girlfriends of a parent spend the night after a divorce has been granted or stating when and how the children should be introduced to such a new friend.

My suggestion about dating while the divorce is pending is to wait until after the divorce is granted. I had posts on that topic in 2007 and 2008.

The Problem: Assuming that the divorce is now granted, there are still important issues to be dealt with regarding introducing new romantic interests to the children. Collaborative Law provides a forum to have thoughtful discussions about what would be best for the children. While a selfish parent might want the freedom to bring new boyfriends or girlfriends around the children without restriction, a more mature approach involves taking into account the age, emotional state and the maturity of the children in deciding when and how to introduce them to a new "special friend". This should not be just an opportunity to flout one's independence and attractiveness in front of an ex-spouse. Some parents might enjoy showing off their new dating partner in front of the kids and possibly the ex-spouse, but the parents should be looking more long term.

The Effect on Children: Having experienced their parents' divorce, kids may be a little unsettled for a while. They need stability, predictability and safety. They want to know that they can depend on their parents and that neither parent will be abandoning the children. Bringing around a new significant other in the first few months after the divorce can create worry on the part of the children. They may wonder if the parent will be leaving the kids again and going away with a possible new spouse. It can also cut into the time the children could have been spending with their parent.

Solutions: An important feature of Collaborative Law, as practiced in Fort Worth and Tarrant County, is that we usually bring in a neutral child specialist to work with the parties. Having an experienced professional looking out for the children's best interests really helps the parties reach appropriate agreements and avoid deadlocks.

The good news is that Collaborative Law enables the parties to directly address the issue and put a plan in place to protect the children, to the extent it is needed. For example, the parties may agree to not introduce, for 6 months or a year, the children to someone the parent is dating. Since the odds of the parent breaking up with a dating partner within 6 -- 12 months are pretty high, the kids are kept away from an unstable lifestyle at a time when they may be a little fragile. In a litigated divorce in Texas, there is virtually no chance that such an agreement would be imposed by a judge and there wouldn't be much incentive for the parties to agree on that on their own.

Conclusion: Collaborative Law clearly provides a better opportunity to protect the children and assist in a safe and smooth transition from the intact family to two families. Using a child specialist and crafting an agreement that covers all aspects of introducing new adults into the children's lives is a smart way to help ensure the safety and health of the children.