Thursday, September 15, 2011

Why Collaborative Law is a More Civilized Process for Divorce

Some people facing the prospect of a divorce are angry and want to punish their spouse, regardless of the cost and how it may affect their lives after they are divorced. Others search for a low-key, civilized way to split the sheets and go their separate ways. Those who do not want a destructive, expensive and stressful experience are beginning to turn to Collaborative Law when they learn about it. The process is not yet widely known among the public, but it is gaining more and more fans as they learn about it and try it out.

If you are looking for a nicer alternative to traditional litigation, here are some reasons why Collaborative Law may be your answer.

1. Collaborative Law involves negotiations that are interest-based. That means that the parties ignore traditional guidelines or formulas to come up with agreements. Instead of staking out extreme opening positions and working toward an arbitrary middle ground, the parties identify their goals, needs and interests at the first joint meeting and then follow up to make sure that any solutions that are discussed are consistent and supportive of those goals. A purpose of the process is to help the parties meet their most important needs.

2. The process works through a series of relatively short meetings. Here in Tarrant County, our Collaborative meetings usually run for 1 1/2 to 2 hours each. We don't have marathon sessions (like mediations usually do) because people get tired and don't function as well when there are 3-5 hour meetings. We have agendas that are created for each session and we can take breaks as needed. The meetings are nothing like court and very informal. We do what we can to reduce the stress of meetings, but we can always at least keep them short.

3. In Fort Worth and Tarrant County cases, we normally use a neutral mental health professional (MHP) as a communication facilitator. That's a broad responsibility which covers a lot of territory. We have excellent, experienced therapists who regularly work with us, which makes our team of professionals more effective. The MHP doesn't do therapy with the parties, but she/he does meet with the parties together or individually, as needed, and lends invaluable assistance at the joint meetings. On more than one occasion, when the other attorney and I hadn't noticed any problem, I have seen the MHP speak up and help one of the parties who was feeling slighted or attacked or distressed for some reason. A therapist is an extra layer of protection for the parties in a very difficult time in their lives.

4. The Collaborative process helps maintain a balance of power between the two sides. In some marriages, one spouse tends to dominate the other, generally or on certain issues. For example, one spouse may control the finances and the other spouse may not know much at all about them. In that type situation, the attorneys help keep balance, but an even larger help comes from the neutral financial professional (FP) who works for both parties. The FP will make sure that there is a thorough investigation and reporting on the finances, regardless of who ran the show in the past. It is a unique dynamic not found in litigated cases. Likewise, the MHP makes sure that there's no bullying and undue pressure or unfair tactics being used.

5. The financial professional also helps the parties with tax and other financial issues that need to be addressed during the divorce.
The FP is specially trained in Collaborative Law and is familiar with Texas divorce law, so she/he can understand and explain various options, as well as tax consequences. Working together, the parties can often create tax savings that are ignored or impossible in litigated divorces where there is little cooperation.

For people wanting a more rational, civilized approach to divorce, Collaborative Law is likely the answer. It has been called the "kinder, gentler process" and it really is.

Special Note: If you are interested in finding a Collaborative lawyer, be sure to check the experience and training in Collaborative Law of the lawyer you visit. A trained Collaborative professional should have, at a minimum, a 2-day basic training and then 1 or 2 trainings a year after the initial one. Unfortunately, some non-Collaborative attorneys advertise about Collaborative Law and then just talk prospective clients out of it. While Collaborative won't work for everyone, you might get a second opinion if an attorney just tries to talk you out of it.

Thursday, September 1, 2011

Slow Down!

One of the most common issues that comes up in Collaborative divorces is the desire by one or both parties to speed up the process. This can come up at the beginning or at various other times as we work through preparation and meetings.

Why are people in a hurry? There are a variety of reasons. Here's some:
  • They want to save money. Fewer meetings = less cost (unless you get a bad result and have to start over).
  • Divorce is stressful and they want it over with.
  • They already have plans and want to get started on their post-divorce life.
  • They don't want to be around the spouse any more than they have to.
  • They are tired of fighting.
  • The case seems very simple and shouldn't take any time.
  • They can do things quicker on their own.
  • Some don't like the process because they have to make tough decisions.
  • They don't think there are any alternatives that they haven't thought of.
  • Some don't like the "touchy-feely" aspects of a Collaborative case.
As a result of having some of those attitudes, parties in a Collaborative case will sometimes try to skip steps or try to meet with just their spouse to resolve some or all of the issues. That usually works out badly. Keep in mind that most people starting a Collaborative divorce have already failed at directly negotiating the issues with their spouse.

Here are three significant steps that should not be skipped:

1. Setting goals. Many people downplay this stage and are satisfied with such vague goals as
wanting a "fair" property division, "reasonable child support" and an "adequate" amount of time with the children.
  • Going through the process of setting goals for yourself helps clarify your thinking and focus on what's really important to you.
  • The process also educates your spouse about what you need. Even though you may have been married for a while, you spouse often doesn't really know what you want or need out of life.
  • Goal setting is also a way to help everyone to start thinking about solutions. Once you identify what to aim for, possible solutions start appearing.
2. Gathering information. It is very common for one or both parties to think that they know what they have or what their circumstances are. That's not always the case. In fact, it is very common for at least one party to know very little about some aspects such as property, debts or children. An organized effort of gathering information can help both parties.
  • Don't assume you know everything. Some things may have been intentionally hidden from you. Other things may have always been overlooked by you.
  • One of the advantages of Collaborative Law is that there is an extra set of eyes looking over everything, whether it is financial or children's issues.
  • Having a neutral-led effort to gather and share information can help where one spouse may not understand about debts or assets or child-care issues, for example.
3. Brainstorming. This is the step where the parties try to come up with as many different ways to meet their needs as they can. Often even ridiculous ideas can be tweaked into really effective solutions. It is very common for one or both parties to come to a meeting and announce that they already know the solution and than brainstorming is unnecessary. That is a mistake.
  • You will limit your options if you skip over brainstorming. You may miss some great ideas.
  • You will limit creativity. One of the best things about Collaborative Law is that it permits and encourages finding unusual solutions.
  • Your needs may not get met. If you take a very limited approach, you may not be able to actually deal with some important needs. Assuming that you already know all the possible solutions may result in dissatisfaction with the outcome.
If you give in to the urge to move quickly and skip "unnecessary" steps, you run the risks of not getting heard, of missing out on creative problem solving and of completely missing resolving the issues most important to you. There is also the risk of one party being overbearing and trying to dominate the other party, leading to bad results as well.

All-in-all, from my experience, you will not get nearly as good a result when you move too quickly and skip steps in the Collaborative process.