Thursday, December 1, 2016

Comparison Shopping for Attorneys

When people are considering filing for divorce, they usually start to think about  hiring an attorney. Unless someone knows a family law attorney or has had experience with many attorneys, it may be hard to get started in choosing one. For the people who may feel a little lost, here are some tips on how to find a good lawyer to help you with your case.

You may want to consider the following when researching attorneys:

1. Experience.  You probably want someone who has handled cases similar to yours in the past.  While each case is different, and outcomes may vary from case to case, it does make a difference if the attorney has worked on the same or similar issues in the past.

2.  Chemistry.  This is something that you may or may not feel after talking and meeting with the prospective attorney.   If you are uncomfortable with or dislike the attorney, do yourself (and the attorney) a favor and walk away.  On the other hand, if the attorney listens well to you, speaks in language you understand and appears concerned about you, that might be a good attorney for you.

3.  Information Available.  Does the attorney provide information for you, either in person, on the web site or by sending information to you?  Can you learn about the process you are starting into?  You are probably better off if you have more information available so you can mentally and emotionally prepare for what's ahead.

4.  Location.  In Collaborative cases, location is not too big of an issue.  Usually, I recommend having an attorney in the same county.  There usually is not much reason for the attorney and client to meet frequently at the attorney's office during a case. When a Collaborative case starts up, the professionals and clients usually pick the most convenient place to meet and schedule meetings for that location.  That decision is affected by where all the professionals office and where the parties live and work.  Considering all that, the meeting locations usually can be convenient for all.

5.  Cost.  Unfortunately, no attorney can give a guarantee of the total cost of the process.  You can find out the attorney's hourly rate and retainer amount, as well as get a general idea of what the other professionals will likely need for retainers.  You should remember that experienced attorneys will probably be more efficient than less experienced ones, but there won't be a great deal of difference.  Overall, the differences in cost between attorneys will not be substantial.

There is more information available than ever before about attorneys through the internet and various means of advertising. Still the most important step in hiring an attorney is a face-to-face meeting to check each other out.

One Final Word:   Ask the attorney how many Collaborative cases he or she has has handled through completion.  If they have not done any, there is likely a problem.  If the attorney you are meeting with tries to talk you out of using Collaborative Law, that attorney is probably not a real Collaborative lawyer.  Some lawyers advertise that they do Collaborative Law, but they always talk prospective clients out of using the Collaborative process. If you are interested in a Collaborative divorce, you need to talk to a real Collaborative attorney.

Saturday, October 15, 2016

Is Collaborative Law Safe Without the Injunctions?

In almost every divorce, Collaborative or litigated, there is mistrust between the parties.  Often, one or both parties feel vulnerable and at risk of being taken advantage of. Fortunately, Collaborative Divorces have safety features to protect the participants.

Here's how some parts of the Collaborative process provide extra protection.

"Code of Conduct"
In divorce litigation, one of the first steps normally taken is to get a temporary restraining order (TRO) issued and schedule a hearing for a temporary injunction that would continue in place until the final divorce is granted.  In some counties in Texas, there are "standing orders" that are automatic mutual temporary injunctions that apply immediately to both parties when the divorce is filed.

Regardless of which way the orders come into effect, there are restraints on the parties financially and socially that go into effect very quickly in most cases.  That is not necessarily the case with Collaborative cases, which concerns some people.

To address those concerns, in Texas, the Collaborative community has created a standard Participation Agreement that is signed in every case which has similar language limiting what the parties can do after they sign up to use Collaborative Law for their divorce. In Collaborative Divorces, the "Code of Conduct" attached to the Participation Agreement provides protection and rules to manage financial and other matters while the divorce is pending, and it becomes effective at the very start of the case when everyone signs the Participation Agreement.

Extra Set of Eyes
In most Collaborative Divorces, a neutral Financial Professional (FP) works with the parties to gather, organize and interpret the financial data for the married couple.  The FP is trained in divorce law and financial analysis and planning.  A major job of the FP is to help the parties gather the relevant financial records and organize them into a spreadsheet that is used by everyone.  The FP normally looks at tax returns and financial statements to help determine what the assets and liabilities are and what their values are. 

In a litigated divorce, there is no neutral financial expert playing that role. The Court relies on the parties to produce the financial data, which sometimes results in incomplete or misleading information. 

In Collaborative cases, the FP is an extra set of expert eyes for both parties helping to gather and check the information provided.  That saves a lot of money by focusing on the most relevant information and avoiding duplication and overlap. If any additional information is needed, the FP will request it immediately.  If there are any questions about the financial information, the FP takes the lead in getting clarification or additional information.

Obligation to Correct Mistakes
In litigated divorces, if a party makes a mistake, there's often no obligation for the other party to bring it to their attention or to correct it. 

In sharp contrast, in Collaborative Divorces, if a party or professional discovers a mistake, there is an obligation to bring it to everyone's attention and correct it. That makes Collaborative a much safer process for the parties because they are less likely to be disadvantaged by a mistake.

Unique Provisions Improve Safety for the Parties
Because of these provisions, the Collaborative process has proven to be a safe alternative to litigation.  A temporary injunction is no magic shield that can prevent all misbehavior.  With the Collaborative Divorce provisions, there are more weapons to fight misbehavior and dishonesty, so the process is certainly worth serious consideration.

Saturday, October 1, 2016

Why Should You Try Collaborative Law?

If you are facing a divorce and you are trying to decide how to proceed, you might be interested to know some of the advantages of Collaborative Law.  See if any of these appeal to you.  If so, you should consult with an experienced Collaborative lawyer and discuss whether the process could work to your benefit.  Here are some topics to discuss with an attorney.

  • Privacy.  In litigation, you have a lot of pleadings filed that are public records and hearings held in open courts.  In Collaborative Law, the process is handled by having a series of short, private meetings (not at the Courthouse).  The work is conducted quietly and privately.  When the agreement is finalized, there is a prove-up at the Courthouse, but it is a minimal, routine appearance. Discussions are held in private and documents are kept private.
  • Control over the outcome.  Instead of having a Judge make interim and final decisions, the parties make their own decisions all along.
  • Professional assistance.  Each party has their own attorney and there are a neutral financial advisor and a neutral therapist to help the parties with financial issues and communication and children's issues.
  • Focus on important issues.  At the outset, the parties express their personal goals, needs and interests and then the process focuses on achieving  what each party wants.  Both parties can get their needs met most of the time. 
  • Both parties are benefited.  By focusing on what's important for both parties, both become satisfied.
  • Civilized approach.  Collaborative trades in the experiences of trials, testimony, depositions and formal discovery for short meetings that follow an agenda and focus on the important issues that benefit both parties.  We do not participation in the typical "beat down" of many litigated cases. The parties are on their best behavior and the neutral therapist ensures that they behave and function well in the process. It is a much less stressful process.
  • Improve communications.  One of the side benefits of the process is that the parties usually learn better listening and communication skills with the help of the therapist and we don't just divide everything in two.
  • Creative solutions.  In Collaborative cases, we are open to any proposals. We do not automatically default to the guidelines for child support or possession schedules, for example.  We are free to invent new approaches as long as they help the parties meet their needs.
  • Can protect assets.  We have great flexibility to deal with assets and take actions to help the parties meet their needs.  Our negotiations are interest-based, rather than positional.  That means that we always focus on the underlying interests or needs of each party instead of starting with arbitrary positions so we can end up with an arbitrary result in the middle.  The middle may not be a good solution.
  • It can move as quickly or slowly as the parties want.  Actually, we move a quickly as the slower party wants to go, but the difference is that we are not bound by an arbitrary court schedule imposed by the Judge who rarely considered the circumstances of the parties. 
 If you think any of these advantages of Collaborative Law appeal to you, meet with a trained Collaborative lawyer who can help you decide if your case would be appropriate.

Thursday, September 15, 2016

Will it Work?

When you hear about some new idea that someone urges you to try out, one of your first questions may be, "Will it Work?". We don't want to waste time and money on something that doesn't stand a chance of working.

It may not work.
Anyone telling you about Collaborative Law will have to admit that there is a chance that the process won't work in some cases.  Sometimes it's because of the parties involved, other times it's the whole context of how the matter is happening.  Many times it can be because of outside forces, such as pressure from family members, time constraints or work issues. It can also make a difference it you choose to work with experienced versus inexperienced professionals.

Failure is rare.
The down side is that if the process is unsuccessful, the professionals have to withdraw and the there's added costs for the parties in getting new attorneys.  The good news is that failure is rare. 

Here are some common circumstances which sometimes unnecessarily scare people away from using Collaborative Law.

1.  One or both parties are mad. Actually, that's not unusual.  These are divorces after all. When we work with a full team, including the neutral mental health professional, communication improves greatly. People end up working together much better because they are surrounded by trained professionals who help them learn better communication skills.  That's an extra benefit of using the Collaborative process.

2. One doesn't trust the other party.  Again, that's common when people get divorced.  Again, trust is managed and greatly improved with the involvement of the neutral mental health professional, the neutral financial professional and two lawyers, all watching over everything. Part of the Participation Agreement everyone signs at the outset is an agreement to be open and honest.  We all also agree to correct any mistakes anyone finds.  This is about the most protected people can be in a negotiating process.

3. Someone believes the other party can "out-negotiate" them.  That's not even an issue because of having the team working together. Plus, we negotiate differently.  We don't use car-buying tactics.  We approach it differently by getting both parties to tell us their real goals, interests and needs. The negotiations focus on meeting the goals for both parties, rather than creating a "win-lose" scenario in which only one party is satisfied.

If you have any of these concerns, please talk with your attorney.  If you are meeting with a trained, experienced Collaborative attorney, your questions will be answered and your concerns laid to rest. While these are common issues, you really should have no problem entering into the process under these circumstances.

Thursday, September 1, 2016

Why Do We All Meet in the Same Room? Part 2 -- Benefits

We recently discussed why having Collaborative meetings works when all the parties are in the room sitting around a common table.  It's a safe, effective and well-managed process.

This is in contrast to the typical litigation scenario where the attorneys speak for the clients or ask questions in court and the Judge makes rulings which may or may not actually help the parties work through this difficult process.

If you choose Collaborative Law, you will have the meetings in the same room, but there are a number of benefits from meeting directly together. Here are some to consider.

1.  The direct contact improves communication.  It's not filtered or interpreted by having the attorneys speak for you or against you.  You can speak for yourself, with support from your attorney and the other professionals.

2.  Everyone feels safe.  We don't wander off topic or allow ambushes.  We plan an agenda and stay with it.  If someone starts feeling anxious or upset, the Mental Health Professional (MHP) can step in and restore order.

3.  Both parties get heard.  A frequent complaint about Court is that one or both parties don't really get to say what they want to say in Court.  In Collaborative, the parties are encouraged to speak up.

4.  Collaborative is an efficient process.  You can get immediate answers and you can continue a discussion as long as is needed and then move on. You can directly address issues and get resolution.

5.  The process becomes real for everyone.  Direct participation, discussion and the ability to make decisions and agreements is in sharp contrast to litigation. There, technical legal issues sometime take over and dominate discussions, instead of having humans thinking and acting cooperatively to find their own solutions. In Collaborative cases, the parties are in control of their own outcomes.

If you are facing a divorce and are deciding how to proceed, please talk with a trained Collaborative lawyer who is experienced with Collaborative cases.  You can find out if Collaborative would be right for your case.

Monday, August 15, 2016

Why Do We All Meet in the Same Room?

One of the key elements of Collaborative Law is that we have meetings with both parties in the same room with both attorneys, plus the Mental Health Professional (MHP) and the Financial Professional (FP).  We encourage direct, respectful communication between the parties and the professionals.

Occasionally, some people are a little hesitant to commit to sitting next to, or even across the table from, the spouse they are splitting with.

This is another aspect of Collaborative Law that sounds difficult, but which normally works well and usually helps some wounds heal.

Why does it work?

1.  MHP: A big part of the MHP's role is to manage the discussions and help the two parties improve their communication skills so they can effectively participate in the process.  The MHP will redirect one or both parties, as needed, and can call a timeout if someone appears uncomfortable or some other problem shows up. Plus, the MHP discusses rules of conduct with the two parties to reinforce the expectations of their conduct.

2.  Attorneys:  In addition to the MHP, there are two specially-trained attorneys cooperating, helping lead the process and acting as role models for the parties.  The attorneys act very differently than they would in a litigated divorce.

3.  FP:  Having the neutral FP also adds to the security and integrity of the process.  Perceptions of a power imbalance between the parties can change because the FP can control the gathering and review of financial records, making sure that everything is produced and accurate.  The FP also takes a lot of the emotion out of the financial discussions.

4.  Planning:  With the Collaborative process, we initially determine the goals and needs for each party, then have meetings that are planned out and which follow set agendas.  Minutes are kept and there are discussions before and after the joint meetings, so the professionals keep on top of any issues and make sure that we all stay on track and don't wander off to upsetting unscheduled topics.

If you are considering using Collaborative Law to work out a divorce, don't worry about being in the same room with your spouse, even if one or both of you are upset.  The process is set up with many safeguards to make sure everyone is comfortable and safe  working together. Please talk with your attorney about any concerns you may have.

Monday, August 1, 2016

Who Should Make Life's Major Decisions?

In an ideal world, two spouses love each other, communicate well and can make decisions together.  In reality, that's not often the case.  Love fades, anger comes in and the parties no longer get along very well.  Communication suffers and whether it's the cause or the effect of the break-up of the marriage, making decisions together becomes very difficult.

Still, there are important life decisions that must be made and the parties need to be able to respond to various issues that are family-related.

Issues like:
  • Raising kids:  how to share time and responsibilities for the kids.  Who makes decisions?  How much consultation goes on?  What if the parents disagree on something?
  • Financial support:  one spouse often makes substantially more than the other spouse.  Sometimes a former spouse needs help resuming an old career or starting a new one.  There can be health issues.  The children may have special needs.
  • Paying bills and taxes:  who has responsibility?  How is it figured into the overall settlement?  What if one spouse can't afford to do much? 
  • Retirement planning: how to divide up existing retirement assets.  Is there a greater need for cash now or at retirement?  Is there a way in increase future contributions?
  • Home ownership:  do you keep or sell the house?  Who gets the house or the sale proceeds?  Do you use the proceeds to pay off all the bills? Do you try to refinance the house?
There are different ways of ending a marriage.  Litigation is the traditional approach and it usually includes going to mediation near the end of the process.  If you go to trial, the Judge will answer all the questions.  If you use mediation, the parties will try to settle the case with the help of a neutral mediator, with the possibility of going to trial if mediation fails.  

Collaborative Law is the  "new kid on the block".  This process allows the parties to work out their own terms by having a series of meetings that begin right away.  They usually work with a neutral therapist and neutral financial advisor.

So the question is:  do you want to be in control of your own destiny or do you want a Judge to decide how you raise your kids and how your finances are going to be managed?  It's up to you.

Friday, July 15, 2016

Is Collaborative Law Appropriate for Our Divorce?

In my view, no case is too complicated for Collaborative Law.  In fact, the more complicated a case is, the better it is to use the Collaborative process instead of fighting and using a standardized approach in litigation.

The question of whether to try Collaborative usually comes up more in the context of some cases that don't have a lot of moving parts.  Simple cases, with limited issues, may not need the Collaborative process.

It can be  a real judgment call to decide whether to use Collaborative or just try to quickly finish an agreement on limited issues.

So, how do you know if your divorce is appropriate for Collaborative Law?

If there are no kids and very little property, an informal approach would probably work, as long as there are no major fights.

But, here are some issues that call for the Collaborative Law approach:

1.  You have a custody conflict.  If both parents start out saying they want primary custody, Collaborative would be very helpful.  There are many options available and Collaborative is certainly a better option than going through a court custody battle.

2. You need a special parenting plan for the kids.  This might be a unique visitation schedule or special time-sharing arrangements. This often comes up when one or both parents have weird or changing work schedules.

3. There are conflicts over expenses, activities or educational needs for the children.  Collaborative Law provides a flexible and creative way to work out agreements that benefit kids while being manageable for the parents.

4.  Post-divorce financial help is needed.  There may be a great disparity in income, education or health between the parties.  Alimony may be needed and help with education expenses for a spouse may also be needed. Working in Collaborative, the parties can find ways to provide needed support post-divorce in affordable, but beneficial ways for both parties.

5. There are special financial needs.  There may be bills to pay off, a house to be sold, a new house to be purchased right away or assets that are hard to divide.  Collaborative Law gives you the time and flexibility to come up with appropriate, customized solutions.

Collaborative Law is not for just the easy cases or ones with very few issues.  It works well for custody issues and complex property issues.  If you are facing a divorce, it is in your best interest to contact a trained Collaborative Law attorney for a consultation so you can decide if the process would work for you.

Friday, July 1, 2016

Do You Want Attention to Details in a Divorce?

Collaborative Law is promoted as being a different process from Litigation for many different reasons.  There are some differences that aren't often emphasized that can be very important to many people.

Usually, attorneys talk about having a series of short, private meetings.  They talk about the agreement to not go to Court, but instead to work directly in the meetings.  They talk about the requirement for the attorney to withdraw in the event the process breaks down, and how that is the great incentive to keep negotiating by trying new approaches.  Those are all significant differences from Litigation.

But, there are some other differences that have a cumulative major positive effect on the outcome of a case. They may sound minor, but they all add value to a problem-solving orientation.
  • There's an agenda for each meeting and we stick to it.  That reduces surprises, limits the topics under discussion and makes it easier to prepare for a meeting.
  • Minutes are taken.  We have a record after each meeting of what was discussed and what agreements were made, as well as what the plans are for future meetings.
  • After each meeting, we have de-briefings.  The attorneys meet briefly with their clients to find out if there are any questions or concerns and to see how the client is feeling.  After that meeting, the attorneys and other professionals meet to review the meeting, plan for the future and consider how to deal with any problems that may have come up.
  •  We use experts well.  We usually have a neutral therapist and a neutral financial advisor.  We can hire joint experts for tax issues, appraisals, psychological evaluations or other needs. There is a lot of freedom to bring in a variety of people, if we can benefit from them.
  • It's a very private process.  Staying away from hearings, Discovery and other distractions, we can quietly work on the important issues.  We can help professionals, wealthy people and celebrities, among others, who don't want their private lives shared with the world. 
If you're facing a divorce or have some other Family Law issues, talk to a trained, experienced Collaborative Lawyer about whether the Collaborative process would benefit you.

Wednesday, June 15, 2016

How Do We Start a Collaborative Divorce?

Once you decide you want to use the Collaborative Law process instead of litigation or mediation, you're probably ready to get started.  So, what should you expect as you get started?  

Different attorneys may do things slightly differently, but here are some steps that are fairly common.

1.  Make sure you understand how the process works.  You and your attorney should have a good discussion and go over the process thoroughly.  It's not like anything you would see on TV.  You should learn what to expect at the first meeting -- it's usually handled about the same from case to case.  You can also talk about how to prepare for the meeting.

2.  Have a discussion with your attorney about why you want to use Collaborative Law.  Some of the common reasons are because of the privacy, getting to control the process, getting to decide the terms of the final agreement, being able to create non-traditional solutions, focusing on needs and interests rather than arbitrary guidelines, being able to maintain important family relationships or using a less stressful process.  It helps for the attorney to understand your motivation and to know what's really important to you, so they can help you achieve your goals.

3.  Review documents.  There will be a Participation Agreement that is fundamental to the process.  It is written in moderate legalese, so it will take some interpretation, but it is very important that you understand it. In part, it explains again how the process works. You might also review the Roadmap to Resolution, which is an outline of the steps in the Collaborative process. You will probably also go over the Expectations of Conduct. That's a reminder on how to behave during the Collaborative process.

4.  Outline your goals.  One of the best advantages of Collaborative Law is  that we are always working to achieve your goals and meet your needs post-divorce.  We need you to carefully explain what's important to you.

5.  Study your calendar so we can schedule the first meetings.  We want to schedule the first joint meeting as soon as possible, and then 2or 3 more joint meetings, along with separate meetings with the therapist (if there are children's issues) and the financial neutral. It helps to schedule the meetings early so we can keep progressing.

These are the basic steps, but talk with your attorney about what he or she wants you to do.  

Some Next Steps:  Gather financial records and start working on a budget, if you're in a hurry.  The financial neutral will tell you what's needed and help you organize it.

Wednesday, June 1, 2016

Why Choose Collaborative Divorce Over Mediation?

When people are considering their options for divorce, it usually boils down to litigation, mediation or Collaborative Law, if they are aware of the Collaborative option.  If they choose to avoid traditional litigation, they usually consider either mediation (often without attorneys) or Collaborative Law.

So, why would someone choose Collaborative Divorce over mediation?  For different people, one process may work better or feel better than the other.  Here are some points to consider if you face this process decision.

1.  With Collaborative Law, each party will have their own attorney throughout the process.  That can lead to more informed decisions and some assurance that the important issues will be discussed and resolved.  With mediation, sometimes parties choose to work with a mediator and without attorneys while they hammer out an agreement.  That will save money initially, but sometimes the parties, without attorney guidance, make bad decisions that have to get un-done. That gets expensive and it might kill the agreement. Sometimes, it's better to spend a little more money as you go along than to take a chance on making some bad financial and life decisions.

2.  In Collaborative, we normally use a team of helpers.  On financial decisions, a neutral financial professional works with both parties to gather and organize financial data. That's especially helpful when one spouse does not really have much financial experience or knowledge.  On children's issues, the neutral therapist or child specialist helps the parties calmly work out a plan to share time and responsibility regarding the children.  Both neutrals are much better than relying on just standard guidelines approaches.  They can help the parties be creative because of their expertise and experience.

3.  There's a more informed decision in Collaborative. With attorneys and neutral experts, plus an explicit agreement to share all relevant information, Collaborative Divorce provides the means to get the needed information to both parties.  In mediation, there is less oversight and it can be hard to get some information if one side wants to avoid disclosing certain facts.

4.  In Collaborative cases, documents get prepared correctly.  In mediation, especially without attorneys, it's often hard to find someone  who will prepare the documents.  Even worse, some people with significant assets attempt to use online forms, a sure recipe for disaster.

5.  Collaborative Law utilizes interest-based negotiations.  The parties start off by establishing their goals and interests, and then the negotiations are always focused on trying to meet the needs of both parties.  In mediation, most often, the parties revert to positional bargaining, like that used in buying a used car.  One side starts high and the other starts low.  Often, only one of the parties comes out in good shape in an agreement.

Let me emphasize that mediation can be a very good process.  I am a mediator and I strongly support the process. The biggest problems occur when the parties try to save money by negotiating their own divorce without lawyers.  That will almost always lead to major problems.  Please consult with a lawyer before you start negotiating on your own on such serious matters.

Sunday, May 15, 2016

How to Protect Yourself in Divorce Over 50

As Baby Boomers reach middle age and beyond, many will experience a divorce occurring late in life.  That timing can create special problems.  Getting a routine divorce and splitting everything in half may seem like an acceptable outcome, but it may not be.

My suggestion is to look into using Collaborative Law.  Because a Collaborative divorce is focused on the goals and needs of the parties, you will automatically be starting in a better position. Rather than mechanically dividing everything in half, Collaborative gives you the opportunity to craft a customized divorce agreement that can benefit both parties.  Do yourself a favor and talk with a Collaborative attorney before you get started.

Here are some suggestions if you are facing a "gray divorce":

1.  Don't blow things up.  Don't start off by attacking your spouse or trying to punish him/her for past transgressions.  Your aggressive moves will probably be met by equally aggressive moves and things will escalate.  You will be much  better off, and save money, if you don't start off in battle mode.

2.  Work with a counselor.  This is a good way to keep a lid on it.  A therapist can help you deal with the natural anger that often occurs in divorce.  Having a rational, experienced person on your side to listen to you vent and to make helpful suggestions is extremely valuable.

3.  Get a job or training, if you need to.  Coming out of a divorce, both spouses normally have to work. If you've been out of the workforce for a few years, or a lot of years, you probably will need some education to sharpen and update your skills.  If you need to put off starting the divorce so that you can go  to school on community funds, do it if you can.  There will always be less money once you separate, so do what you can while you are together.

4.  Gather all the financial records that you can.  Make copies and keep them in a secure place.  Don't destroy or hide the original records.  Just get copies of the last 2-3 years of bank and credit card statements, as well as tax returns, insurance policies, mortgage records and any other significant records you can uncover.

5.  Make a plan for yourself.  Identify needs and goals that will be important to you after the divorce. Work on a financial plan, including a budget, early on.  You may need to work with a financial planner who can help you understand your assets, liabilities and possibilities.  Also, create a network of family and friends who can support you emotionally as you go through the process.  You need to work with a counselor, but friends are also invaluable.  Don't forget to consider your kids, even the adult ones.  They can have a good relationship with both parents post divorce and you should not be trying to sabotage it.

The most important step, if you are over 50 and facing a divorce, is to consult with a Collaborative Lawyer as early as possible.  Do as much advance preparation as possible to improve your outcome. Good luck!

Sunday, May 1, 2016

Can You Negotiate Your Own Divorce?

The short answer is yes, but. There's always a but. On your own, you may make mistakes on some important issues.  To try to negotiate your own divorce without professional help, you should have only a very limited and simple estate, and probably no kids. 

Depending on your situation, you may want to try the Collaborative divorce process as an alternative to make sure your divorce is handled right and the result is keyed to meeting your needs.

 Here are some questions to ask yourself if you are considering a DIY divorce.

1.  Do you have the information you need?  That would be complete and current records on the finances and information about what to expect regarding your kids.  You may also want some past records on financial accounts if you have concerns about what happened in the past.

    Do you have some assurance that you have the complete and correct information?  Is something being withheld?  Do you have just partial information? Are you relying on what your spouse tells you?  Do you know what you don't know about?

2.  Do you have adequate time, without pressure, to negotiate?  Often, one party gets in a big hurry to finish.  That's often the party who controls the information.  An impatient spouse can make negotiating very uncomfortable if you are doing it on your own.

3.  Do you understand the law and the issues you are dealing with?  Many of the issues are quite complicated and subtle distinctions must by made.  Omissions or wrong decisions can be very expensive.

4.  Are there any issues that your spouse refuses to negotiate?  That can happen if one spouse believes he or she is right or that they might be treated unfairly, from their point of view. Without professionals intervening, one spouse may say that some things on non-negotiable.

5.  Do you feel equal power in the negotiating with you spouse?  If not, you may be in for a rough time.  Sometimes the weaker spouse just caves in to get it over with, and they lose out on things they should have gotten.

6.  Do you think negotiating will be simple?  It usually isn't.

7.  What should you do about the house? Sell it?  Jointly own it post-divorce?  Let one party keep it?  How will the mortgage be paid in the future?  This can be both an emotional issue and a financially draining situation.

8.  Is alimony an issue?  That's often a hot-button issue and often both parties are misinformed about the law on alimony.

9.  Do you know what to do about health insurance? Everybody needs a policy now. Both parties often start out on a single policy during a marriage. When the divorce is final, one party has to get off the old policy and then get coverage somewhere.  Plus, provision to cover the children is necessary?  How are those policies paid for?  There are lots of decisions to be made.

10.  Do you know what to do about Social Security and retirement assets?  These are very complicated and involve what might be the biggest assets.  Mistakes can have serious consequences later in life.

Bottom Line:  Unless you have an unusually small and uncontroversial estate, you should hire an attorney to help you negotiate your divorce.  Keep in mind that Collaborative Law provides a safe process and lots of professional support when you need it.  When you are deciding how to proceed, be sure to at least consult with a trained Collaborative lawyer to see if that process would benefit you.  Good luck!

Friday, April 15, 2016

Is Collaborative Divorce Right for You?

Process option choices:  There are now several  different approaches to getting divorced:
  • There's the traditional litigation model where you go to court, early and often in many cases.
  • Another possibility is sitting around the kitchen table and making decisions like reasonable adults.  That won't always work, but it can be great.  
  • Another option is mediation, where you have a neutral 3rd party working with both spouses to help them reach an agreement, but the mediator cannot give legal advice to either party. 
  • The newest approach is Collaborative Law where the spouses each hire specially trained attorneys who don't go to court with their clients. Usually, a neutral therapist and a neutral financial advisor  help the parties.  There is a regular step-by-step process involving a series of meetings to reach peaceful agreements.
Reasons to try Collaborative:  So, how can you tell if Collaborative Divorce is the right process for you to use?  It may be if any of the following are concerns to you.
  • Privacy
  • Control over the timing
  • Control over the outcome
  • Less stress
  • Not having to accept arbitrary or standard solutions
  • The ability to create out-of-the-box solutions
  • Equalizing power
  • Needing expert help on children's issues
  • Needing expert help on financial issues
  • Wanting to be able to speak up in a safe environment
  • Preserving relationships between parents
Other considerations: 

1.  Are you willing and able to negotiate, work and compromise with your spouse?  In a Collaborative case, keep in mind that the negotiations and work with your spouse take place with a team of two attorneys, a neutral therapist and a neutral financial professional (on financial issues).  If you don't want to negotiate and participate, you may want to turn everything to a Judge who doesn't know you and who will probably default to a standard or guidelines approach.

2.  You don't get your day in court in the Collaborative process.  Instead, you do get to fully express yourself in front of your spouse in a safe environment.   Plus, in a Collaborative setting, your opinion and choices matter.  You fully participate in fashioning the terms of your divorce. "Your day in court" is not really very valuable. It's mostly symbolic.  Stating what you want in court doesn't give any assurance that you will get it.

3.  Collaborative Divorces are not cheap, but they're good value.  Litigated divorces aren't cheap either.  In general, litigation can be a lot more expensive.  It usually lasts longer than Collaboration. When experts are used, there are usually two, instead of one.  In litigation, you have two attorneys doing things that are done by a single, less-expensive expert in Collaborative cases.  Collaborative Divorces utilize resources much more efficiently than litigation generally does.

If you are about to start up a divorce, you should carefully consider what process to use.  As you are gathering information, be sure to talk with a trained Collaborative attorney who can discuss all your process options and help you decide which is best for your situation.  Good luck!

Friday, April 1, 2016

Why Some People Put Off Starting a Collaborative Divorce

By now, you may have figured out your marriage is not going to last. The questions are when and how the divorce will take place.

Some people, when faced with that situation, put off deciding.  Others will explore their options, but become paralyzed because there are too many choices.  Still others make quick decisions, but based on emotion or bad information.

Sometimes, people make an initial decision to file for divorce and then put off getting started.  If you find yourself in that position, let me address some misconceptions about Collaborative Divorce that may be stalling your momentum.

Here are some mistaken ideas people have about the Collaborative process, with an explanation about the reality for each.

1. They believe they need everything agreed before they start the process.  Wrong.  The Collaborative Divorce process is a method used to resolve disputes.  It's a great way to create solutions for sharing time with the kids or dividing the assets.  Collaborative is used to help the parties make decisions.

2. The parties don't get along. That's not unusual since they're getting divorced, but it doesn't keep them from working in the Collaborative process.  Having the neutral mental health professional work with both parties helps them learn to listen and communicate better as well as generally behave better in joint meetings.  Unless there are serious threats of violence, most behavior issues can be managed with two attorneys working with the therapist to keep order. It doesn't get better in court.

3.  They don't have all the information.  Actually, one of the early steps in the Collaborative Divorce process is to gather information.  The neutral financial professional takes charge of identifying, gathering, organizing and evaluating the financial information for the parties.  It is a very efficient process and it's great to have an extra set of expert eyes looking at the financial records.

4. Someone doesn't understand the process.  Any attorney trained in Collaborative Law will be happy to explain the process to a prospective client.  Some will do a free consultation on the process choices available to clients for divorce.  If you or your spouse  doesn't understand how Collaborative Law works, read some more in this Blog or on my web site, or you can check

5.   Some people don't think they need Collaborative lawyers because they can agree on everything on their own.  Sometimes it works, but more often, problems develop.  After all, if they could agree on everything, they wouldn't be getting a divorce.  What happens frequently is that one party decides how things should be done and then insists that the spouse go along with it.  That's not a good idea for the "non-deciding" spouse.  Collaborative Law gives a much better opportunity for both parties to participate in working out the agreement. A one-sided agreement won't work well in the long run.

If you find yourself thinking any of the statements above, please talk with a Collaborative Law attorney and help yourself.  You'll appreciate it afterwards.

Tuesday, March 15, 2016

Reality Testing -- What Do You Expect from a Collaborative Divorce?

If you are thinking about using Collaborative Law to get a divorce, it's a good idea to be aware of what you are expecting and it would be very helpful to your attorney if you discussed your expectations for the process.

Do you have great expectations about Collaborative Divorce?  Are you expecting any of the following?

1. It should be an easy experience.  "Easy" is a little like "fair" -- it's a subjective term and everyone sees it a little differently.  In general, you should keep in mind that this is still a divorce, with lots of emotions.  You are un-doing years of marriage and many decisions made over the years.  Divorce is rarely "easy", no matter which process is used.

2. It should be quick.  Again, "quick" or fast is relative.  No divorce with significant children's issues or substantial property can be quick.  There's a lot at stake and we all have to be careful to make sure the best results are obtained by everyone.

3.  It should be painless.  Again, this is a divorce.  Divorces are rarely painless.  We do have an advantage in Collaborative Divorces because we use a neutral therapist and a neutral financial who help the process run better and with less conflict than many litigated divorces.  There's bound to be some pain in ending the marriage, but it will generally be much less painful, just not quite painless.

4.  It should be cheap.  In a similar vein, a Collaborative Divorce is probably less expensive than  many or most litigated cases, but it can still cost a substantial amount.  The more complicated the
issues, the more meetings and preparation are required.  That also means the cost increases.  Keep in mind that complicated cases are definitely more expensive in litigation. Collaborative may not be cheap, but it's a wise expense.

5.  You should get everything you want.  That never happens, regardless of the process.  However, in Collaborative Divorces, we do make an effort to focus on what both sides want and need.  We do try to obtain as much of those results as possible. We probably come closer to getting what you want than would happen if we just left everything up to a Judge.

6. The lawyers will handle everything for you.  Not true.  We help you determine your goals and needs, and we help you prepare for meetings and discussions. We do some background work with the other professionals.  But, the parties have a major role throughout the process and they speak up directly in our meetings.  This is not a passive process for the clients. The result is that the parties have much more influence on the final outcome of the case.

7.  You should come out of the divorce with the same standard of living that you experienced while married.  That's not likely in most cases.  We usually still have the same size pie to be divided now into two households, rather than supporting just one.  We have to be realistic.  Fortunately, the neutral financial expert normally helps both parties plan their budgets for their post-divorce lives.  That usually helps reduce the impact on day-to-day living.

So why use Collaborative?  As you can see, Collaborative Divorce may not be exactly what you expect.  Still, people are choosing the process because it is very private, they have more control over the outcome, they can create unusual provisions, it's less stressful and they can maintain civil relationships with the co-parent of their children.

Bottom Line with Collaborative Divorce:  You can get a good result if you are patient and put in the effort.

Tuesday, March 1, 2016

Is "Cooperative" Divorce Right for You?

Probably not, but let me explain why.

Two different approaches. If you have been researching Collaborative Divorce, you may have run across the term "cooperative divorce". Or, you may ask a lawyer about Collaborative Law and the lawyer starts suggesting cooperative divorce. While Collaborative Divorce is based on a statute in the Texas Family Code, cooperative divorce is not.  However, cooperative divorce is sometimes promoted by lawyers who either haven't been trained in Collaborative Law or who just haven't fully made the transition to Collaborative Law.

Main difference.The biggest difference between Collaborative and cooperative law is that in Collaborative Divorce, the attorneys must withdraw from representing the parties if the process breaks down and the parties head to court, while in cooperative law, the attorneys don't have to withdraw.  The Texas statute is clear that for a case to be operated under the Collaborative process, the withdrawal requirement is mandatory.  Without it, the process is not "Collaborative Law".

Reason for "cooperative". Probably the main reason why attorneys sometimes want to use the cooperative process, even if their client came in wanting a Collaborative Divorce, is  that they don't want to withdraw if the process fails.

Benefit of requiring withdrawal.  My experience is that the threat of withdrawal upon failure is one of the biggest reasons why the Collaborative process works.  If the discussions come to an apparent impasse, the parties will back up and try another approach rather than just stop and go to court.  The attorneys and other professionals don't want to lose business (and income) and the parties don't want the expense of hiring new counsel and getting them up to speed on the case.  There's also the loss of time for the transition that slows down the process.

Some other missing ingredients.The Texas Family Code provides some other benefits under Collaborative Law that are not available for cooperative divorces.
  • Confidentiality.  The meetings and discussions in a Collaborative case are confidential.  They are not in a cooperative divorce.
  • Privacy.  Cooperative divorce has no privacy protection.  Collaborative Divorce does.
  • Discovery.  There's no requirement that information be shared freely in cooperative divorces.  In Collaborative cases, information is shared and is usually gathered and reviewed by a neutral expert.  That also doesn't happen in cooperative cases.
  • Mistakes.  There's no duty to correct mistakes in cooperative cases, but there is in Collaborative cases.
  • Scheduling.  The court still controls scheduling in cooperative cases.  It does not in Collaborative cases.  The independence in Collaborative cases gives the parties much more freedom to take the time they need and want to resolve the issues. 
There are other differences between the systems as well.

Is there a role for cooperative divorce?  Possibly, if the divorce is a very simple case, probably with no kids and little or no disagreements.

If there are complicated children or property issues that require a thoughtful and open approach, Collaborative Law is probably a better choice.

Monday, February 15, 2016

Misinformation About Collaborative Law

When people are considering whether to stay married or get divorced, they will often do research on what their options are.  Some people think the only choice is litigation, while others will dig a little deeper.  Unfortunately, they need to be careful where they dig.

If you are investigating your options, please spend time to look up information provided by experienced and active Collaborative lawyers.  I occasionally spend some time looking on the Internet to see what people are writing about Collaborative Law.  Sadly, there are many misstatements about different aspects of the process. The mistakes seem to always be on web sites by non-Collaborative lawyers who write a little about the topic, probably to show up in another area for search results. Generally, their conclusion is that Collaborative Law is not such a great process.

While I certainly wouldn't want an attorney to have to do a Collaborative case if he or she didn't want to, I do thing we should keep the facts straight when explaining our views to the general public.  Here are three common misconceptions that are presented about Collaborative Law.

1.  It just works for the small group of people getting divorced who get along well. Actually, while it works well in the easy cases,  it's also very helpful for people who don't get along well.

There are many reasons why people choose the Collaborative process.  They may value the privacy, or the power to make their own decisions, or the control over the scheduling, or the creativity permitted, or the assistance of a neutral financial professional or mental health professional.

People with those interests may not get along, but they see the value in the process and they see how the mental health professional keeps everyone working together effectively.

2.  If the Collaborative Law process breaks down, you can't use the documents and information that was gathered in the Collaborative case.  That's not true.  While  statements and communications are protected, the documents and agreements produced can be kept and used as the parties finish off the case in litigation.  The result:  emails and statements made at meetings are confidential and can't the used in litigation, but spreadsheets created and the underlying documents supporting them can be used.

That means that it's not a total loss, but still the parties have to slow down and go to court to finish what they were unable to agree upon. One of the main reasons why Collaborative Law usually works is that the parties don't want the expense of hiring new attorneys or the delay of waiting 30 days while everyone gets started again.

3.  The Collaborative rules remove the right to have a trial.  That's not true either.  If the process breaks down or one or both of the parties want to go to trial, the parties can have a trial, once they hire new attorneys.  In reality, trials are about the last resort for either side.  Most Judges will require the parties to attend mediation before they go to trial, and that will usually lead to settlement.  Very few people actually want to go to trial where they leave everything up to the Judge.  Most people prefer to decide for themselves how their finances and children will be handled.

There are other misstatements I see regularly when I look on the Internet, but these are some of the more frequent and relevant mistakes.

If you are seriously looking for information about your options, do yourself a favor and start by looking for information from an experienced Collaborative lawyer who actually handles Collaborative cases. 

Monday, February 1, 2016

Safe Confrontation in Collaborative Cases

Have you ever wanted to just tell off your spouse or someone else who made you angry? You may have done it from time to time, or you may have kept your feelings bottled up like many people do. Sometimes that's a good thing to do, but most often it's not handled very well and the problems escalate.

If you don't get to express yourself and address your concerns, the situation may just continue while your stress level rises.

One of the great benefits of Collaborative Law is the opportunity to learn skills to communicate better and to do so in a safe, controlled atmosphere.   Instead of just reacting and blurting out your feelings, you learn how to express yourself in a way that will be heard and respected.

Here's what we do in Collaborative cases.

  • Attorneys meet and talk with their clients before and after joint meetings.  They can even pause a joint meeting and meet privately when a difficult issue comes up.  Attorneys can help their clients respond to the situation in a constructive way. As much as possible, sensitive topics are planned for.
  • Attorneys also meet with the other attorney and other professionals before and after joint meetings.  They can also take a time out and meet briefly during a joint meeting so they can coordinate how to deal safely with a difficult issue.
  • The neutral mental health professional (MHP) we normally use in Collaborative Law cases in North Texas works with the parties as needed on their communication skills.  The MHP also manages each joint meeting and pays close attention to the body language and mood of each of the participants.  I have had several meetings stopped by the MHP so immediate concerns about what was happening could be addressed.
  • There's an emphasis on both parties learning to listen better and use language more carefully.  Learning to listen before speaking is very helpful.  Also, everyone benefits from learning to choose one's words and thinking about what is being said and how it affects others.
  • Focus on the future.  We encourage the parties to not re-hash the past.  We don't need to get into assigning blame or pointing out fault for past problems.  Instead , we help the parties learn to be constructive in planning for the future.
In Collaborative cases, we don't want to suppress issues.  We do want to help the parties learn productive and safe ways to express themselves so that they can resolve problems that come up during the Collaborative process as well as  after the divorce.

Friday, January 15, 2016

Do You Really Need a Lawyer?

I recently read a divorce article  on line that I really disagreed with. The premise was that smart people didn't need to hire a lawyer to get a divorce.

The author was probably basing her ideas on how divorce works in California.  It may work there, but I still see lots of problems with DIY.  Even in California with their regimented divorce process, there are still many cases where Collaborative Law can be very beneficial.  Here in Texas, there are even more reasons to hire a lawyer and use Collaborative Law.

1.  Texas divorce forms alone are not sufficient in complicated cases.  Where there are children, you want to have enforceable and appropriate orders for access, support and decision-making.   Just taking a chance with on line forms is not a good idea.  If your order isn't drawn correctly, it's worthless at best and potentially harmful to your interests.

2.  It is very common for a party negotiating without an attorney, to get bullied or bluffed into making a very bad agreement.  It could be paying too much or receiving too little support or not getting proper value for some assets or giving up rights unnecessarily.

3.  Incorrect assumptions are often made, to the serious detriment of one of the parties.  In Texas, for example, there's no automatic 50-50 division of assets or liabilities.   Also, retirement assets may be community property which generally should be divided, but they may include some separate property that was earned prior to marriage.  Plus, how do you deal with a house that's just in one party's name?  You need lawyers to help with these issues.

4.  Few couples can work through these problems just on  their own or with a therapist or financial professional.  Mediators can help some, but mediators can't give legal advice.  No matter how smart a person is, a lawyer is important when there are hundreds of thousands or millions of dollars at risk. Most people benefit from the team of professionals used in Texas:  two attorneys, one neutral mental health professional and one neutral financial professional.

5.  You can't rely on a Judge to correct any mistakes you make in negotiating an agreement.  Judges can't give legal advice and they generally won't point out your mistakes unless something is clearly illegal.

Best bet:  talk to a Collaborative lawyer before you start. Discus the different process options  for working out the terms of your divorce. You may decide to do it yourself, but you also find out that you need help.  It's better to discover that at the beginning rather than post-divorce when you are having problems.

Friday, January 1, 2016

Considering Divorce?

'Tis the Season!

For several years, January has been a very popular month to start a divorce.  There are lots of reasons for that popularity, but mostly it seems to come down to the start of a new year being a time for fresh starts.

For those about to suggest a divorce or for those hearing about plans for a divorce from a spouse, it's time to take action.  That's true even if you don't want a divorce.  Doing nothing can be very dangerous.  With that in mind, here are five tips to keep in mind.

How to start -- The best first step is to consult with an attorney.

Yes, you may have to pay a consultation fee, but that is a small investment compared to what may be at stake.  Meet with an experienced family law attorney and find out what your options are.  There are several different processes that can be used to get a divorce, with varying degrees of cost, difficulty and damage. There's no "one size fits all".  You need to consider which way you prefer to proceed. 

Immediate concerns.  You need to think short-term to consider some of the following issues:
  • Who stays in the house?
  • How are the bills paid?
  • What do you say to the children?
  • How do you break the news to your spouse?
  • How can you get along with your spouse while the divorce is pending?

Plan ahead -- things to do before filing:
  • Gather records on your finances.
  • Have control of some money.
  • As odd as it may sound, try to be considerate and nice to your spouse. It's easier and better to divorce a friend than an enemy.
  • Make a plan for where you will live and how you will separate the clothing, personal effects and furniture.
  • If you have kids, plan how you and your spouse can share time and responsibility for the children.
Read up on the divorce process.

There's tons of information on line about divorce, although you should be careful to not read about other states.  Their laws are different and usually don't apply here. There's plenty of Texas information available.

Don't Do It Yourself! 

I recommend against DIY unless you have a very short marriage, AND there are no kids AND there is no property (other than personal effects) AND there are no debts.  If you have any of those, you should also have an attorney.  There's a lot to lose if you don't know what you're doing!
 Good luck, plan ahead and work with an attorney.