Tuesday, March 24, 2009

Customizing Child Support

The Traditional Approach

Most, if not all, states now rely on formulas to calculate child support in a uniform manner for the child support cases filed within their state. In Texas, for example, our primary formula is 20% of net income resources for 1 child, 25% for 2 children, 30% for 3 children, etc. Some other states base their calculations on gross income. They may also use different percentages. Texas also has adjustments (different percentages) when there are children in different households and there are child support obligations in each household. There may also be variations from state to state about what deductions are permitted before the child support is calculated and about what resources are to be considered possible funds for child support.

Traditionally, one parent pays child support to the other parent each month, regardless of how much time the child spends with each parent.

In Texas Collaborative Law cases, we often explain how child support is calculated under Texas rules, and we can also look at other states' statutes, as well. BUT, we don't want the parties to feel like they need to follow the statutory formula of Texas or any other state. On the other hand, the parents should feel free to examine and consider the child support arrangements of any state.

New Ideas

To open up the discussion further, here are three other suggestions of approaches that parties might take in Collaborative cases, especially in cases where the parents end up with close to equal time with the child, a scenario that is becoming more and more common.

1. Split the difference. The parties each calculate how much child support he and she would pay under the Texas Family Code. Whichever parent has the greater income would pay to the other parent the difference between the two amounts of child support.

2. Pay half of the expenses. Some parties get along well enough that they can each pay half of specified expenses. Sometimes the list of expenses includes items the court would not, or could not, order, such as religious expenses or college expenses. Generally, parents can agree to share any expenses that they want to.

3. Pay a proportionate share. If there is a significant difference in income between the parents, they could agree for each to pay a proportionate share of specified expenses. For example if wife made $6,000.00 per month and husband made $3,000.00 per month, wife might pay 2/3 of the expenses and husband could pay 1/3 to match their comparative incomes.

There are obviously many other possible formulations for child support. The most important point here is that the parties should not feel bound or limited by traditional or statutory schemes for calculating child support. Spending time brainstorming at a joint meeting can lead to creative, flexible and satisfying child support arrangements.

The lesson to be learned: don't limit your options!

Monday, March 23, 2009

Getting What You Want -- First Ask for It

Today I saw the weekly newsletter that Francie Cooper, a local life coach, publishes. She also has a blog. The newsletter had an interesting article about the need to ask for something that you want. She says it's the first step in attaining your goals and meeting your needs. Asking for things is also a key part of the Collaborative process.

Asking for things occurs in two ways in a Collaborative case: first, in setting up their goals, the parties are identifying and asking for what they want; second, to get specific agreements, the parties themselves must ask for what terms they want. In contrast to litigation, the parties speak for themselves, rather than let the attorneys do the talking in negotiations.

Francie illustrated her article with two examples that also illuminate the Collaborative process. In one example, a woman wanted a specific kind of car at at specific price. In the other example, Francie's son figured out he needed more money for college than he had planned on. Each story had additional elements that also related to Collaborative Law.
  • In each case, the person started off with specific goals.
  • Each person followed up by gathering information and organizing it.
  • The information was presented to the other party in the negotiations in a persuasive manner, the person asked for what she or he ultimately wanted and there was a discussion which lead to agreements.

It sounds much like Collaborative Law and shows that the basic structure is sound.

One of the main differences between Collaborative Law and litigation is how Collaborative Law focuses on the goals of each. In litigation, where there's negotiation, it is usually positional bargaining instead of interest-based negotiation which is the basis of Collaborative Law. In litigation, in a property division discussion, most times the talk is about what percentage of the assets and liabilities each party will receive. Each side often stakes out an extreme starting position so that they can compromise and end up where they want to be. In other issues, there are more or less automatic decisions on some issues like setting child support and a visitation schedule. In each case, there's very little discussion.

Collaborative Law
By contrast, in Collaborative cases, the focus is on how to achieve various goals. Once the goals are established, the parties gather information and then go through a brainstorming process to generate options. After evaluating the options, each party asks for what they want to help meet their needs. Instead of automatic formulas to be applied, there is a genuine discussion that leads to an agreement. The parties must speak up for themselves and ask for what they want. There is a full discussion of the various options and the parties generally reach a conclusion that they are both satisfied with.

Monday, March 16, 2009

Is Collaborative Law Really Speedier Than Litigation?

Usually, it is, although it's hard to know. Comparing two litigated cases is hard to do because of so many different variables in each case: different judges, different emotional states of the parties, different facts, different histories of the parties, different motivations, and so on. Although people try to compare divorces all the time, the comparisons are not fair or accurate because of the differences in the cases. It's easy to find a few things the cases may have in common, but it's the differences than prevent the cases from being fair comparisons. For the same, and other, reasons, comparing a litigated case to a Collaborative case is inappropriate.

Having said that, I would still argue that Collaborative cases will usually be resolved sooner than the average litigated divorce that is contested. Collaborative Law cases would be counted as contested cases because the parties use the process to resolve issues that they have not been able to agree on.

Collaborative Law cases could take months and months to complete, if the parties want to take that long, but the "average" case will usually take no more than 4 or 5 months, and often, quite a bit less. In Tarrant County, and probably most large urban counties (except Harris, with the famed Rocket Dockets), it usually takes at least a year for a contested case to be resolved.

Nevertheless, a large number of Collaborators seem to end up feeling like their cases are taking forever to resolve. There are several reasons for that, even where the cases are resolved much more quickly than they would be in litigation.
  • The parties to the lawsuit usually have no point of reference. The attorneys can easily imagine the amount of time that would pass as they experience the various routine stages of a contested, litigated case: filing, setting a temporary hearing, doing discovery, getting a scheduling order for all the usual steps, attending mediation and preparing for, and participating in, final trial. Attorneys know how long various steps take in litigation and what would be happening if the case were in litigation. On the other hand, the parties usually only know what they are experiencing in their case, so they don't realize that they are actually moving along relatively quickly.

  • The face-to-face negotiations are sometimes much more stressful for the parties than litigation where the attorneys do most of the speaking and work. Although meetings are usually limited to a maximum of two hours at a time, the meetings can be tiring and emotionally draining, although they are not always so. Stressful events seem to take longer than enjoyable ones.

  • Sometimes, the parties get bogged down in small issues and get frustrated. Experienced attorneys and a mental health professional will do their best to recognize the pace and the frustration and will try to keep the process moving forward. But, it will happen occasionally.
  • Parties often get frustrated because they see just one solution to some problems and the professionals in the case insist that the parties discuss other possible solutions. Many people who agree to use the Collaborative approach have a hard time following the "Roadmap to Resolution" that is often used to create solutions that are acceptable to both parties. The Roadmap includes steps that involve creating or considering multiple possible solutions before choosing one for the settlement. Some people, having forgotten the Roadmap, get frustrated and start to feel that the process is moving at a snail's pace.
The parties using Collaborative Law should keep in mind that they are not in a race. A speedy resolution is usually not one of the goals they come up with at the outset. Most of time, the parties are more concerned with such things as creativity, customizing solutions, maintaining privacy, keeping control over the process and maintaining family relationships.
If you are in a Collaborative case and start to feel like the case is really dragging, talk to your attorney or the mental health professional (if one is being used) about your concerns. In all likelihood, they will tell you that the alternative is a much slower process in their experience. And they would be right!

Sunday, March 1, 2009

Can You Use Collaborative Law When There's Been Adultery?

Yes. And it's interesting to see how differently adultery is addressed in litigated divorces and in Collaborative Law divorces.


For the people who are just angry and want to fight for the sake of revenge or to punish their spouse, adultery becomes a convenient scapegoat to help blame everything on the other party. Even where there was no adultery, in some litigated cases, the spouse who thinks he or she was wronged still sometimes makes adultery allegations a central part of his/her case, despite a lack of proof. Unfortunately, we can't do anything about people operating contrary to facts, logic and common sense.

Sometimes, a party to a divorce becomes so consumed in punishing a spouse for marital transgressions that the divorce overwhelms the parties emotionally and financially. In one case involving an estate of about $200,000, the wife believed that her husband had a girlfriend. He denied it, but still offered 60-65% of the assets because he made a lot more than his wife did and he didn't want to fight. His wife refused and continued to fight. She fought for over three years, spent about $100,000 in attorney's fees, and she still ended up with about 60% of the assets.

There are cases where adultery undeniably has occurred, but that fact rarely makes a major impact on the divorce judge's decision, unless you happen to find yourself in front of one of the rare judges who puts an emphasis on it. The odds are against you making any difference in the outcome just because there has been adultery.

Collaborative Law

In a Collaborative case, the parties are focused on their goals and problem solving. In litigation, the focus is usually on what happened in the past, while Collaborative Law focuses on the future. Instead of rehashing past mistakes and bad behavior, Collaborators usually move on and try to find or create solutions. Many Collaborative cases have involved cases where adultery has occurred and both parties know about it. And those cases are almost always successfully resolved in the Collaborative process.

If a husband or wife is very angry and can't get over that to focus on his or her goals, then Collaborative may not be an appropriate option for that person. It does required some emotional maturity and getting past the anger stage of the breakup.

What can you do if you want to do a Collaborative divorce, but you are very angry?

  • Get some counseling for yourself to manage your anger and move forward emotionally.
  • Get counseling for you and your spouse. That can help both of you address common issues in a safe environment, prior to divorce negotiations.
  • Let some time pass. Everyone goes through several stages of grieving during a divorce, not always in the same order. Over time, perspectives and feelings change. At some point, you will be ready to work on the divorce without being consumed by anger and a desire for revenge.
  • Consult with a trained and experienced Collaborative lawyer who may be able to help you focus on goals that are more important than just retribution.

Don't be afraid to try Collaborative Law when there has been adultery or an affair in the marriage. There have been many successful agreements reached where the parties have been able to work together then and in the future.