Monday, December 28, 2009

What If Your Spouse Doesn't Want to do Collaborative Law

A situation that comes up occasionally is that one spouse will decide that a Collaborative divorce is the best approach, but the other spouse doesn't agree. Unfortunately, it is impossible to force someone to use Collaborative Law if they don't want to use it. It can be very frustrating for a husband or wife to research the subject and come to the conclusion that Collaborative Law would be best for both parties and then find out that their spouse disagrees. In some cases, maybe you are just stuck in litigation. In some other cases, you may be able to have a mature discussion and persuade your spouse to join you in collaborating. If you want to try to do that, here are some ideas to consider.

1. Try to find out the reason or reasons for the objection to Collaborative Law. Once you understand that, you may be able to come up with reasons to overcome the concerns.

2. Be sensitive to the need to avoid the appearance of pressuring your spouse. Sometimes that alone will make your position unacceptable to your spouse. A spouse may believe that if you want something, it must be bad for them. Try to promote your suggestion in a way that appeals to your spouse.

3. Try to explain the benefits of the process from your spouse's point of view. Some of the following may appeal to your spouse:
  • Avoiding public exposure by meeting and discussing matters in private.
  • Having control over the outcome.
  • Keeping financial records private.
  • Ensuring that the negotiations are held on a level playing field. Expert guidance is available to help eliminate the advantage of more knowledge or experience with some issues.
  • Avoiding the duplicate expenses of having competing experts for property appraisals or business valuations.
  • Encouraging creative new solutions, instead of the statutory guidelines or minimums.
  • Focusing on planning for the future.
If those reasons don't seem to appeal to your spouse, talk with your Collaborative attorney or other professional and come up with some other approaches to present. The Collaborative process can't be forced on someone, but it's really worth a strong, intelligent effort to show the benefits to your spouse so you can both win.

Friday, December 11, 2009

Should Professional Athletes Use Collaborative Law?

Many athletes seem to think that they become almost bullet proof and that once they reach a certain level of athletic achievement, they can control virtually all aspects of their lives. They seem to believe that the money, notoriety and power that come with success on a big stage will enable them to avoid the problems that the general public experiences in everyday life. That is often true. Sometimes they can make problems go away with just a little money. On the other hand, occasionally, celebrities discover that they are caught in a quicksand that seems inexorably to suck them in with a tighter and tighter grip. Eventually, they face a fight to survive.

Traditionally, professional athletes relied on money, connections and/or a forgiving public to get through a crisis. Sometimes that doesn't work anymore, especially in personal and family matters, as several politicians and ministers have discovered in recent years. Depending on what transgressions may have occurred, athletes may face the end of a marriage, or other consequences. As great a loss as that may be, it can get worse. Celebrity athletes can also face embarrassment brought on by an ugly divorce, which can end up costing tens of millions of dollars, or more.

When a crisis arises, the first response, after the initial denial, is to try to keep everything under wraps so the disputes and allegations are not exposed to the public. If it looks like the issues won't go away, the parties should consider utilizing Collaborative Law as the means of resolving the matter in a way that protects the interests of both parties.

Why is Collaborative Law preferable in sensitive cases? Here are some reasons:

1. It's a private process. High profile people, athletes, entertainers or otherwise, need good publicity, but can really be hurt by a messy divorce or custody fight. Collaborative Law provides a safe, private environment where issues can be addressed and solutions can be created without disclosing details to the public. Privacy is one of the fundamental elements of Collaborative Law.

2. The process encourages creativity. In fashioning solutions for various issues with unusual characteristics, the parties are not bound by the standard solutions that courts use. Instead, for example, they can agree to financial terms which may adjust depending on the athlete's income or contract status. They can also allow the parties the freedom to create unique schedules for sharing the children, taking into account seasons, travel and other variables.

3. The parties stay in control. In litigation, if the parties can't agree, they give up their control over the outcome and let a judge make a decision which is binding. In Collaborative Law cases, the parties make all the decisions jointly, sometimes with assistance of neutral experts. The negotiating process changes dramatically in a Collaborative case because both parties, both attorneys and the other professionals in the case all have a vested interest in not giving up and letting a judge decide. They work hard to keep coming up with new and different approaches. Someone with substantial assets, or the spouse of that person, may not be very comfortable letting a stranger make personal and life-changing decisions about them. In Collaborative Law, both parties keep their power to decide the outcome and both parties participate fully in the decision-making process.

4. Both parties focus on the needs and interests of the parties. Collaborative Law encourages a more intelligent approach to problem solving. Instead of taking arbitrary positions, such as demanding a 50-50 or 60-40 split of the property, the Collaborative approach starts with both parties evaluating their own situations and deciding what their underlying needs, interests and goals are. It's a more comprehensive approach than how traditional litigation negotiations are done and the result is a plan that is geared toward the important issues for each party.

5. Experts are used as neutrals throughout the process. In Texas Collaborative Law cases, we usually bring in a therapist and a financial advisor to help with the parties. In a case with special aspects, such as a celebrity athlete being involved, other specialized neutral experts can easily be incorporated for specific needs, such as tax planning, children's issues, retirement planning, investment management, etc. In litigation, if those experts are used, each side normally hires their own expert and there's usually a battle of the experts at trial, at substantial expense to the parties.

Let's hope that the next time a professional athlete faces a divorce after some personal failure, that the athlete and his or her spouse are aware of Collaborative Law and choose to use it as the problem-solving process for ending their marriage. There have been too many high profile ugly celebrity divorces. It's time to take divorce "to the next level", to borrow a term popular with athletes and coaches, and to work Collaboratively.