How do We Start a Divorce Now?

There are many couples facing the realization that divorce is on the horizon. After staying together in close quarters for a number of weeks, they are having a harder time getting along. In some cases, people have been looking forward to separating, but suddenly that's not so easy.

So, what can you do? Here are some thoughts.

1.  Negotiation.  If you still get along fairly well (yes, some people do in that situation), you can try sitting around the kitchen table and trying to work out agreements.  That works for fairly mature, not overly angry couples. You may be able to reach agreements, but you should still go talk to an attorney.  There are probably a number of things you aren't aware of that need to be included, but agreeing on anything is a good start!

2.  Traditional Litigation.  The most common traditional approach is to hire attorneys, file for the divorce, set a temporary hearing, serve papers on the other side and then go to court for a temporary orders hearing.  You can still do all those fun things, except for going to court the usual way. Now, for the foreseeable future, temporary hearings will be done remotely by Zoom or something similar.

One of the nice elements of the traditional approach is the opportunity to negotiate while you are waiting to see the judge. Normally 10-20 or more cases are set at the same time. That shifts the emphasis to negotiating and it's usually productive, although you will probably spend 2-3 hours or more waiting and negotiating.

In the end, you would probably come out with a mostly acceptable temporary agreement.

Now, there will be delays in getting to Zoom hearings. That means plenty of time for negotiating between attorneys. There may be a number of cases resolved simply because people are tired of waiting.

3.  Mediation.  This is a process to resolve disputes using a neutral third party. It is being done remotely now, although a few mediators will do in-person mediations. You really need to have an attorney to help you through mediation. If you have some difficult issues, this is a pretty good way to work things out.

4.  Collaborative Law.  Finally, my preference.  With this process, each side needs their own specially trained attorney. We also often bring in other neutral experts as needed. With Collaborative, the parties start working immediately on a parenting plan, assuming there are children. They also start right away working out living arrangements and financial responsibilities. This option gives you the most control over the outcome and timing, which should appeal to most people.

For quite a while, we will have to do things differently. You still have the same choices of processes, but some of our systems will operate differently and probably more slowly. 

Except for Collaborative Divorce which still works even in a difficult environment.

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!

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 Collaborativedivorce.com.

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.

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. 

A Kinder Way to Divorce

Contrary to popular images, not everyone going through a divorce wants to make a big fight of it.  Actually, there are many people who want a low-key, "nice" divorce, without a lot of fighting.  The ideal situation is when both parties want a peaceful divorce.  That actually occurs more often than you might expect.

Of course, there are still plenty of people who want to duke it out in court.  I know lots of combative attorneys I can refer them to.  Unfortunately, the "fighters" don't realize, until too late, that having a big divorce battle usually means greatly increased costs and a long, drawn-out proceeding.  At least the attorneys come out in good shape, unless the clients run out of money.

For those who want a less-destructive way of getting divorced, there's another way to divorce:  Collaborative Law.  Here's why:

1.  We use a neutral mental health professional (MHP) in Texas in most cases. The MHP is mainly a communication coach who helps the husband and wife learn to communicate better.  That includes learning to listen effectively, choosing words carefully and being respectful to each other, among other things.  The MHP runs most of the meetings we have and I have seen a number of situations where the MHP saved the day by noticing a problem and helping the parties be more effective and less offensive toward each other.

2.  We also use a neutral financial professional (FP) to gather, organize and help interpret financial information for the parties.  The FP leads the discussions on the finances and helps both parties make informed decisions that help them meet their goals. Both parties are more comfortable being able to rely on a knowledgeable and neutral expert to explain the situation and help them evaluate options for settlement.

3.  The attorneys work together, while still representing separate clients, to make sure final agreements can be made.  We avoid ugly court hearings, testimony and cross examination in court and depositions.  The attorneys don't stir the pot with incendiary pleadings and arguments. We are all working for peaceful solutions that match the clients' needs.

If would be nice if everyone acted like reasonable adults during divorces, but that will never happen.  If you are interested in that type atmosphere, you should consider trying Collaborative Law.  You  should find a trained Collaborative Lawyer and discuss whether it would be appropriate in your case.  Good luck!

We Disagree Too Much to do Collaborative!

I recently heard this as a reason an attorney gave for not using Collaborative Law for a divorce.  Obviously the attorney was not really committed to using the Collaborative process to resolve disputes in divorces and other cases and I have to respectfully disagree.

1.  Litigation won't make the disagreements go away.  They just won't be resolved as well as they could have been in Collaborative. There will likely be more conflict.

• Without lawyers trained in problem-solving through Collaboration, the parties will probably have attorneys who go into the traditional steps of conflict-enhancing litigation.  There will probably be much less cooperation between the attorneys as compared to Collaborative attorneys. 
•  In addition, litigation doesn't provide for a therapist or a neutral financial advisor to help the parties create solutions and minimize conflict.
• When the parties can't reach agreements, the issues will probably ultimately be decided, at least in part, by standard guidelines and the judge's own biases.

2.  There's really not "too many disagreements" to use Collaborative.  There are simply better tools to use than litigation provides to handle all the problems. As long as the parties are open, honest and committed to reaching an agreement, Collaborative can be effective.

3.  Every family law case has a lot of disagreements.  We are talking about dispute resolution processes.  There's no reason to limit it to the easiest cases.  The process is not easy.  It requires patience and dedication, but it is a flexible framework that can handle very difficult and unusual cases.  I have seen the Collaborative Law process successfully resolve the following difficult issues:

• Adultery
• Job loss
• Alcohol abuse
• Mental disorders
• Conflicts over parenting styles
• Alienation allegations
• Custody fights
• Long-term illnesses
• Relocation

If an attorney or anyone else ever tells you that there are "too many disagreements" to use Collaborative Law, you need to get a second opinion from an experienced Collaborative lawyer.  Undoubtedly, the Collaborative lawyer will disagree with that assessment!

Just the Facts: Starting Without Assumptions

It is probably human nature to face the unknown by making assumptions.  That can help a person prepare for new circumstances, decisions and consequences.  Sometimes the assumptions are helpful and sometimes they are detrimental.  Either way, making assumptions is an easy way to approach a new situation.

There are three areas where assumptions are commonly made when someone is facing a divorce.  Problems may result unless you withhold judgment and focus on facts.  Here are some examples.

• Assumptions about the legal process.  Unless someone has recent, extensive experience in the legal system, there are usually a lot of mistaken ideas about how the legal process works.  That is especially true of the relatively new process of Collaborative Law.  Rather than listening to your friends, family and friends of friends, it is better to go see a Family Law attorney who has been trained in Collaborative Law.  Don't get an explanation of the process from someone who is not qualified to tell you about it.  A good Collaborative Lawyer will tell you how Collaborative could work in your case and how mediation or litigation might play out.

• Assumptions about how your spouse will act.  While you need to be prepared for the worst, don't assume it will happen.  Likewise, don't assume everything will go absolutely smoothly.  Spend some time with your lawyer and maybe a counselor to try to figure out how to best deal with your spouse.  You might be pleasantly surprised by how your spouse reacts to a "nice" approach.

• Assumptions about whether you will be satisfied with a particular approach.  Again, talk with a professional to find out your options and how they might affect you.  If you think you need a "pit bull" representing you, you should consider the increased cost and the damage to family relationships that usually result from that approach. If you don't think you should negotiate, consider the consequences of that course of action.  Talk with an experienced attorney who can tell you how such actions will impact you and your pocketbook.

The bottom line is that you are better off getting the facts from an experienced and well-trained attorney who can help you decide your best course of action.

Process Options for Resolving Divorces

If you are facing the start up of a divorce, one of the first decisions to be made is which legal process your case will use.  When you are meeting with an attorney, you should be informed about at least 4 different processes.  So that you are better prepared for the initial meeting, here's a preview of what you should find out from the attorney.  If you don't hear about all these approaches, you should probably meet with another attorney to make sure you get a balanced view of your choices.

1.  Do it Yourself, or the Kitchen Table Approach.  In this process, you and your spouse work together informally and come to agreements on what to do.  It's certainly cheaper (at least initially) to handle things yourself.  In the right case, it can be less stressful if both parties are cooperative.  Usually, the right case is one where there's nothing in dispute and nothing to agree on. Those situations are very rare.

There are several potential problems, however, such as:

• you may not have all the information you need, 
• you may be uninformed about some aspects of the law or facts, 
• you may be misinformed (lied to) about some aspects, 
• you may have not anticipated some  important issues, and
• you may not have the proper paperwork.  

Even though it is getting easier to find divorce forms online, they may not be the right forms for you.  Sometimes forms and apps and books are prepared based on some other state's laws (often that's California) and that can really mess up a Texas divorce.  In addition, some situations can become very stressful, especially when one spouse may pressure or intimidate the other spouse, which happens frequently when a spouse has been controlling for a while already. 

2.  Mediation.  You can do mediation with or without an attorney.  Doing it without an attorney can be very risky.  A good mediator can help the parties come to an agreement, but the agreement may not be in your or your child's best interest.  A controlling spouse can sometimes get the other spouse to take much lower (or much higher) child support than a court would award, for example, or might get a spouse to give up too much property.

In North Texas, most mediations take place after the divorce is filed and with attorneys representing both parties and attending the mediation.  Unfortunately, that type of mediation (with attorneys) usually takes place just before trial, after one or more court hearings and after discovery (the formal exchange of documents and information) has been completed.  Mediation usually works and is a great process.  It's just that the timing is unfortunate.


3.  Litigation.  This is the standard default process to use.  Some attorneys are not trained in Collaborative Law and don't want to try it, so they ignore it and go straight to litigation.

The litigation process most often starts with filing a petition for divorce, getting a restraining order and having a temporary hearing right away to set up temporary  orders governing custody, support, visitation, use of the house and other property and how the bills will be paid.

After that, there is a process for exchanging information, called "Discovery", that usually includes written questions, requests for documents and electronic information, requests to disclose some basic information and sometimes depositions.  Discovery is usually very time-consuming and expensive.

There can also be various hearings while the divorce is pending.  In contested cases, the hearings may be to enforce orders or to change the orders.

The Court usually sets up a scheduling order for the various steps that are followed leading to the trial.  Usually mediation is required, but it's often shortly before trial.  Most cases, even in litigation, will settle before trial, but a lot of work is done before the settlement is worked out, and that means it's very expensive.  In Tarrant County, a trial is usually set about a year or more after the case is filed.

4.  Collaborative Law.  This has become a great alternative for resolving cases.  The parties each hire their own attorney and the attorneys usually bring in a neutral mental health professional and a neutral financial professional.  The attorneys and other professionals must be trained in Collaborative Law.  Many attorneys are not trained, so check with the attorneys before you hire one.

The process involves a series of meetings that take place after the parties sign an agreement to not go to court.  If the process breaks down, the attorneys and other professionals must withdraw and the parties must hire new counsel.  As strange as it may seem, that is one of the main reasons the process almost always works -- everyone loses if the parties can't come to an agreement.  The attorneys and professionals lose business and the parties are out the fees they have already paid, along with new fees that will be required.

For more information about how the Collaborative process works, please look at some other articles in this blog.