Monday, May 27, 2013

Choosing Between Collaborative Law and Do-It-Yourself Forms

There has been a lot of interest in people doing divorces by using do-it-yourself forms.  It's obviously a way to save a lot of money.  It can also be a fast way to get a case completed, if everything goes well.

The DIY approach doesn't work well if the divorce is hotly contested.  In that case, at least one party will hire an attorney and that means that the other party needs to hire one.

There is a pretty big middle ground existing between the "everything is agreed" cases and the "many things are contested" cases.  For those cases, people can choose between  DIY or using lawyers.  For this post, I won't go into a discussion of Collaborative versus litigation.  Admittedly, I am biased in favor of Collaborative Law, but I will try to be fairly objective comparing Collaborative to using do-it-yourself forms.

1.  Using Collaborative Law will cost a lot more than DIY.  Naturally, using two lawyers and the other professionals will be expense that wouldn't occur if you just do your own forms.

2.  The forms may be good if the facts are simple and limited and the terms are agreed.  The Texas Supreme Court's forms are already being misused for cases that aren't meant to be covered.  The forms don't deal with many issues that are common in divorces.  In the right case, however, they could be a great fit.

3.  There are many circumstances in which forms will likely be a problem.  Here are some of them:
  • If you want customized visitation;
  • If you want non-standard child support;
  • If there's separate property;
  • If there are complex property issues, such as
    • a family business,
    • a professional practice,
    • retirement accounts,
    • stock options, 
    • reimbursement issues, or
    • deferred compensation, among  other things;
  • If there are tax issues;
  • If alimony is requested or needed;
  • If there's real estate; or 
  • If you want to make creative use of various kinds of insurance, among other things.
4.   Other documents may be needed.  If there's real estate, you may need a deed, deed of trust or a lien note.  There may need to be car title changes.  A qualified domestic relations order (QDRO) may be needed to divide up a retirement account.  There could be other documents needed as well.  They usually don't come with divorce forms.

5.  Using forms, you don't get legal guidance through the process.  You miss out on strategy, creative solutions to problems and tax considerations.  You are just on your own.

If you look at the comments above, you can see that they don't really have much effect on really simple cases.  If that's what you have, then maybe forms can work for you.  On the other hand, you may be missing something and may create major, expensive problems by using DIY forms.  If you have any doubts about whether the forms will work for you, have a consultation with a Collaborative attorney to find out if the Collaborative model would benefit you or if you might succeed on your own with forms.

Wednesday, May 22, 2013

Another Reason to Use Collaborative Law -- Easy, Free Parking!

I just heard an NPR news story about parking lots.  It was more interesting than I expected.  There were sound bites from Joni Mitchell's song, Big Yellow Taxi ("They Paved Paradise and Put up a Parking Lot") and a Seinfeld segment where they got lost in a parking garage looking for their car. The story was explaining the obvious -- people are always worried about where they are going to park when they drive somewhere.

It occurred to me that there's one more reason, that I've never heard anyone articulate, for using Collaborative Law to work through a Family Law case.  Easier parking! 

In litigation, the main action takes place downtown at a courthouse.  Parking is almost always a problem there.  In Fort Worth, we are lucky to have a parking garage next to the Family Law Court Building, but it often fills up and it's expensive.  To make things worse, there's a new civil courts building under construction across the street.  When it's finished, guess where those lawyers, staff, witnesses, jurors and litigants will park.  You might find parking on the street, but it's a 2-hour limit and how many court appearances only last 2 hours or less?  Not many.  So, a lot of people get parking tickets and that's a financial pain.

How does Collaborative Law contrast?  We agree to not go to court.  You don't have to park at the courthouse. We work things out in a series meetings at offices.   We usually meet at the attorneys' offices, but sometimes we meet at other convenient sites, including at the other professionals' offices.

In over 10 years of doing Collaborative cases, I've never had to pay for parking.

That's probably not enough reason by itself to choose Collaborative over litigation, but it's a nice benefit of the choice.

Thursday, May 16, 2013

Complicated Finances: When You Should Use Collaborative Law

Couples facing divorce after a long-term marriage often have serious concerns about how to deal with and protect their hard-earned assets.  There can be a variety of investments, business interests and employment benefits built up over the years.  In a litigated divorce, if the case reaches trial, a judge is likely to divide the assets in ways that may not benefit both parties.  Some assets might be liquidated and others split up.  People on both sides are usually unhappy with parts of a judge's rulings.  An alternative to turning over the decision-making to the judge is to use the Collaborative process.

Here are some types of issues that might be resolved better with Collaborative Law:

1.  Family owned business -- Instead of  just letting a judge arbitrarily award it to one party or the other, the parties can work together to come to an acceptable agreement on how to handle it.  That could include the possibility of everyone continuing to work in the business, which is more likely to be possible in a Collaborative approach which seeks to protect important family relationships.

2.  Need for alimony:  now, interim or later in life-- The need for transitional help is common in the aftermath of a long-term marriage.  That need may occur immediately, for a short term, as one spouse gets re-established or goes to school.  It could could be long-term or short term.  It could also be a bridge later in life as the spouse approaches or reaches retirement age.

3.  Retirement assets to be divided -- In court, judges are tempted to pick an arbitrary percentage and divide retirement accounts across the board, regardless of expected needs or the expected ability (or lack of ability) to replenish the accounts.  In Collaborative cases, the assets can be allocated to meet the needs of both parties and consider the future abilities to acquire new retirement benefits.

4.  Need to provide for college education for children -- In Texas, courts can't really provide for college education expenses unless the children have special needs.  Collaborative Law cases often make it a priority to take care of the children's education, both private school (elementary through high school) and college.

5.  One or two professional practices -- Most professionals don't want their private financial and personal matters exposed to the public.  They want to maintain their professional practices and support their families.  To minimize cost and disruption, Collaborative Law is a good choice.  Value can be shared and used to benefit all family members.  Too many litigated divorces involving professional practices really get ugly.

6.  Planning for long-term care for spouse or child -- Sometimes a spouse or a child will need long-term care.  Judges can provide for that to a limited degree.  Collaborative Law provides a better way to come to more comprehensive agreements to provide the needed help, and money isn't wasted on litigation expenses.

These are some of the matters that can be dealt with effectively for people who have complicated, difficult financial issues.  If any of these apply to you, or if you have other questions, make sure you talk with a trained, experienced Collaborative Lawyer before you decide how you will proceed with a divorce.  You need to figure out all your options.

Thursday, May 9, 2013

How to Negotiate in a Collaborative Law Case

For people starting out in Collaborative cases, their focus is usually on something like gathering information, wondering what to expect or worrying about whether their own needs can be met.  Something that isn't considered too often is now to prepare to negotiate in a Collaborative divorce case context.  Here are some suggestions to help address that oversight.

1.  Learn from the mental health professional (MHP).  You may have some solo time with the MHP and there will certainly be a number of occasions when you are in joint meetings with her or him.  The MHP is skilled in helping people learn to communicate.  Choosing your words carefully, thinking before you speak and learning to listen will all be things you will learn or be reminded of.

2.  Identify goals, needs and interests.  You will be encouraged to focus on the future, not the past, and to work on the important issues.  At the very beginning, you will be required to come up with a list of items that are important to you. These should be discussed with your attorney and then will be discussed at the first or second joint meeting.

3.  Pay attention and respect your spouse's needs.  This is sometimes difficult because spouses often disagree about what's important.  Still, listening to your spouse's positions and considering them can lead to better, more amicable solutions for both of you.

4.  Prepare before joint meetings.  Review and discuss the agenda items and your ideas with your attorney before each joint meeting.  Get advice from your attorney.  Gather any needed information before the meeting and share it with the professionals and attorneys.  Think about what you want to accomplish and consider how your spouse may respond.  Talk it all over with your attorney prior to the joint meeting.

5.  Stay within the lines.  Please don't try to save time and money by negotiating with your spouse one-on-one outside the joint meetings.  That almost always causes problems.  Remember, if you were able to sit down  and have rational discussions, you probably wouldn't be getting a divorce.

Bonus Tips:
  • Warn your attorney if you expect problems with any topics or information.  There may be some hot buttons for you or your spouse that need special treatment.
  • Ask for a short time out if a surprise or problem comes up in a meeting.  We don't like surprises and don't want either party feeling uncomfortable.
  • Listen before talking or acting.  That's basic!

Wednesday, May 1, 2013

The Other Costs of a Litigated Divorce

Collaborative lawyers are pretty good about explaining the options a person has in starting on a divorce. The old standard approach is litigation.  The main alternative is Collaborative Law.  Another approach, which is used by some people, is to represent themselves, which is risky.  Other posts go into more detail about the dangers of representing yourself.  For now, I would like to focus on the costs of litigation.

The most obvious cost of litigation is the attorneys' fees and other costs of a court battle.  Dueling experts, depositions, extensive discovery and attorney's fees for all that plus multiple hearings can be very expensive, but there are other costs that you may not have considered.

1.  Loss of control over the outcome.  In litigation, the parties completely lose control of the terms of the divorce when they turn over the decision-making to a judge.  Each side gets to make their own sales pitch for what they want, but the judge can choose one or the other or neither of the proposals.  Even if the parties negotiate along the way, they usually confine their discussions to options allowed under standard guidelines or procedures.

In Collaborative Law, the parties start talking from the beginning and set out their own goals and objectives from the first joint meeting.  They are free to be as creative as they want and they are the ones who decide on all the terms for themselves.

2.  Damage to relationships.  Where there are children involved, there is often unreasonable fighting in litigated cases.  The parties tend to approach things from a win-lose or all or nothing mentality.  In order to "win" custody or significant time with the kids, parents will often say terrible things about each other.  Both sides become angrier and it's hard to patch up the damaged relationships.

In Collaboration, the parties work with a neutral mental health professional (MHP) who helps the parties communicate better, including learning how to listen respectfully and effectively to each other, a skill that most people are not born with.  Also, the parties don't get into blaming each other in order to advance their own agenda.  Instead, they discover that they can both be winners and both can have great relationships with the children by cooperating with each other.

3.  Stress and anger.  Litigated divorces are frustrating and the parties are put into situations where they believe they are both competing to "win" the same thing, whether it is financial or child-related.  The process is almost always stressful and tiring.  Everyone will get mad at some point at the others because of what is said or done in the process, and the way people cope with that is by fighting back, usually escalating the battles.

Collaborative divorces can also be stressful, but are generally less stressful because the parties have a feeling of having more control over their destinies.  Also, we use the neutral MHP to help people constructively deal with the stresses they experience.  There is less anger in Collaborative cases because we work hard on being respectful and civil in all our actions and words in the process.

4.  Time.  A litigated divorce will usually take a year or more here in Tarrant County.  There are often multiple hearings, depositions and other discovery procedures, and months of waiting for a final trial date.  Most cases go to mediation before trial, but that is usually at least 6 to 9 months after the case is filed.

In Collaborative cases, the parties start talking and working together from the outset.  Although each case is different, they can be completed in 3 to 6 months unless there are a lot of complications.  If they need to take more time to work through things, however, the parties don't have to rush to finish on a court's timetable. The parties control their own time schedules.

5.  Loss of expert support.  In litigation, you are basically on your own.  Some people work with a counselor, but most don't (even though they probably should).  Few people in litigation have a financial advisor who helps them find the best financial solutions in a divorce.

In Collaborative divorces,  we normally use a neutral mental health professional who does not do counseling for the parties, but who helps the parties with communication skills and helps everyone behave well and work effectively with each other.  The MHP also is a great help for the attorneys and alerts us if someone is having a problem at a meeting or if there are some sensitive issues we need to prepare for.  We also rely on a neutral financial professional who gathers and organizes information and helps the parties understand the tax considerations in the issues discussed. 

If you are considering a divorce, or you are definitely facing one, think about these costs and talk to a trained Collaborative lawyer about your options.  Remember, if you go to a family lawyer to discuss Collaborative Law, and the lawyer works to talk you out of using Collaborative Law, go get a second opinion.  The first lawyer simply may not really know about Collaborative Law.