Do You Really Need a Team of Professionals?

For some people, the leap from hiring a lawyer to hiring a team of professionals for a divorce is very difficult. In Collaborative divorces, it is common in North Texas and other areas for the Collaborative attorneys to select a neutral mental health professional (MHP) and a neutral financial professional (FP) to work with the parties.

The attorneys and other professionals divide up the work so that the best qualified people are in charge of gathering information and leading the discussions for their areas. The MHP leads in working on issues relating to children, if there are parenting issues. In addition the MHP leads joint meetings. The FP is in charge of gathering and organizing financial information for everyone.

Some people worry about the cost, others don't want a complicated process, while some feel more comfortable with a more traditional approach.

Cost. As you may know, attorney fees can be expensive. On the other hand, the MHP and FP typically charge roughly half the hourly rate of the attorneys.  In regular litigation, the attorney does all the work. In Collaborative, you have a specialist taking charge of the preliminary work for parenting and financial issues, but charging around half the rate of the attorneys who would have been doing the same work. Much of the MHP and FP's work is done directly with the parties and without attorneys being present. You get great results at a reduced cost.

Complicated.  Dividing responsibility so that the most qualified person oversees different areas and works directly with the parties is a less complicated process.  The preliminary work is done by specialists and then reviewed by all. The attorneys provide the legal overview to make sure an appropriate and enforceable order is the result.

Traditional approach.  The alternative is to file pleadings, go to court,  and negotiate with the courtroom looming in the background. You can let the judge apply a standard possession schedule and standard child support orders. The parties can exchange information through the traditional written Discovery process, which usually costs thousands of dollars before it is over. It all takes a lot of attorney time, which translates into cost.

If you happen to have a divorce where both sides are in agreement on everything, you don't need Collaborative Law. If you agree on getting a divorce, but disagree on the parenting issues or on the finances, you should consider a Collaborative divorce.

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.

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. 

What is Family Peace Worth?

At any time of the year, it's easy to find families in turmoil.  In some cases, it gets worse around the holiday season. Even in intact families, there's often a lot conflict.  People don't get along with each other.  Sometimes disagreements can be resolved.  Counseling is a good option when the problems get more intense.  Unfortunately, counseling won't always put Humpty Dumpty or upset spouses back together again.

History shows that many people are thinking about divorce during the holidays.  Family conflicts can become unbearable,  or maybe there's just no fire anymore.  In December, between multiple religious holidays and the end of the year, many people start looking for relief by splitting up the family and terminating the marriage.

Traditionally, when people think of divorce, they picture court battles, dirty tactics and spending lots of money.  For most people, that's not appealing.  For the people who look forward to the battles, I don't have any encouragement.  My interest is in helping the people who want to avoid destruction.

People should be aware that they have a choice.  They can choose litigation and fighting, or they can focus on finding peaceful solutions through quiet negotiations around the kitchen table, in mediation or using Collaborative Law.

• Kitchen table -- With this approach, the parties meet, usually without attorneys, and directly negotiate a comprehensive agreement to settle the divorce issues.  This rarely works, but can work where there are few assets and debts and where they are not really fighting over the children.  When it does, I recommend that they consider hiring an attorney to draw up the papers. Some problems with this approach are that issues and assets may be overlooked, one side may control the information and one side may be in a more powerful role in the relationship.
• Mediation -- In Texas, most family law mediations involve both parties and their attorneys.   Having a neutral third-party mediator work with the two sides is a very effective way to resolve the case.  Before having the mediation, information must be shared. In mediation, the information is reviewed and discussed.  When the parties can agree on the facts, they can move to a final settlement. The mediator typically  moves back and forth between the two sides, carrying proposals for settlement as the parties move toward an agreement.  The process is usually successful, but often occurs many months after the divorce process began.

• Collaborative -- The Texas model for Collaborative Law usually includes a neutral therapist (MHP) working as a communication facilitator (and sometimes as a parenting plan advisor), and a neutral financial advisor (FP) who helps both parties gather and organize the relevant financial information to be used in dividing the assets and providing support for the parties and their children. Much of the preliminary work is done without the attorneys present, which saves money for the parties.                                                                                                             There will be a series of joint meetings with the parties, attorneys and the MHP and FP where issues are identified, goals are set up, information is gathered and shared, and then options are developed and agreed upon. The parties agree to not go to court.The process is usually successful, but if it breaks down, the attorneys have to withdraw (since they agreed to not go to court); that's one of the main reason the process is successful, since the parties don't want to start over with new lawyers and the original lawyers don't want to lose the business.  The result is that they don't give up easily -- they keep looking for other creative ways to settle difficult issues.

There are good and bad points about each approach.  Mostly, the best approach may depend on your situation.

• If you have the superior information or bargaining strength, the Kitchen Table may be best for you, if you can get your spouse to try it. 

• If you are in litigation, Mediation is usually the best way out. 

• If you are just starting out and want a safe, reasonable process, try Collaborative Law.

For best results, consult with an attorney to figure out the best way for you to proceed in your situation.

How Collaborative Law and Litigation are Alike

Most of my writing about Collaborative Law discusses how it is different from Litigation.  For a change, I will explain some of their limited similarities.

1.  Both processes use the same basic time periods. 

• One of the parties must have lived in Texas for at least 6 months and the county they file in for the last 90 days.  
• There's also a 60-day waiting period, from the date the case is filed until a divorce can be granted by the Court.

2.  The parties need to gather and share information about the assets, liabilities and children.  In litigation it is normally in writing and formal.  In Collaborative, we usually involve the neutral professionals  in obtaining, reviewing and organizing the information.  In Litigation cases, the attorney usually takes charge of it.

3.  The attorneys create a detailed court order with the agreement.  They want it clear and enforceable.

4.  Documents take time to  prepare.  The Decree of Divorce, sometimes the Agreement Incident to Divorce and any Qualified Domestic Relations Orders always seem to take a long time.

5.  The parties must get the Court to approve the agreement.  There must be a formal, signed court order.

Sometimes people get in a hurry in Collaborative cases.  Hopefully, they will keep in mind that some things just can't be ignored or sped up.  Collaborative cases usually are faster than Litigated ones, but we still have hoops to jump through.

Is Collaborative Law a Good Fit for You?

In a recent blog post, Adryenn Cantor, a San Diego, CA attorney included an excellent list of five questions for people to ask themselves to determine if they are a good candidate for using Collaborative Law in a divorce case.  Here are her questions:

1. "Do you want to end your marriage with respect and integrity? 

2. Is taking a rational and fair approach to dividing your assets more important than seeing yourself as a winner and your spouse as the loser in this process?

3. Are your children the most important aspect in this process?

4.  Is saving money, which could go to you or your children more important than spending it on protracted litigation?

5.  Do you want to model for yourself, your spouse and your children how mature adults handle significant challenges?"

Restructuring the Family the Collaborative Way

In a typical litigated divorce in Texas, and probably most states, the Judge will impose a standard set of guidelines for most matters relating to the children.  In many of those cases, the resulting order doesn't exactly fit the needs or facts of the case.  Many times, there's a random standard possession schedule for the children, as well as a standard child support order.  Special needs due to work, geography, health, school or any other factors are often not considered.  The big advantage of that approach, "one size fits all", is that it's easy.

Unfortunately, easy isn't always good or appropriate.

What can be done using Collaborative Law?
In contrast, parties using the Collaborative Law process can create a plan for taking care of the children that really benefits the children and the parents.  Here are some things that can be done , as needed, because we customize terms of orders when we use Collaborative Law.

1.  Set up rules for dating for the parents, including how and when to introduce a new significant other to the children.  New relationships can be very stressful and unsettling for the children.

2.  Share parenting responsibility according to need, past experience, education, ability, interest and other factors for the parents and the children. Taking into account the strengths and weaknesses of each parent can yield a more practical and effective sharing of responsibilities.

3.  Make sure important things are paid for.  Plan ahead for needed expenditures, such as field trips, vacations, school events, sports, proms and other activities.

4.  Figure out how and when to coordinate activities and decision-making about activities.  Come up with a way to amicably communicate between the parents for future situations.

5.  Work out ways to resolve or avoid future disputes.  Get some tie-breakers, such as allowing a pediatrician to resolve medical issues or a teacher or counselor to resolve school or other issues.

6.  Cooperate to share time during the holidays, not using arbitrary schedules.Communicating in advance about wants and plans can help avoid holiday stress.

7.  Customize the regular scheduling and sharing of the children. Be creative and be willing to make changes.

8.  Plan and pay for college.  That includes the preliminary steps of visiting schools, preparing for college, applying and choosing a school, taking the child to school and getting them back home for holidays and summers, etc.  There's plenty of involvement for everyone.

9.  Plan for age-related future issues and new expenses for school, car, activities such as sports, music and  extra-curriculars.  Kids will be more expensive for new reasons as time goes by.  It helps to plan for that, as much as possible.

10. Model good behavior for your children.  Show them that parents can be respectful and cooperative even after a divorce.  Help them learn how to deal with difficult situations without resorting to bad behavior.  Show maturity.

If the parents are really concerned about the best interests of the children, Collaborative Law gives them the opportunity to take care of the kids in many different ways.  Parents should meet with a trained Collaborative lawyer to consider that process before they file for divorce.

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.

Professionals Getting Divorced Respectfully

Professionals of all kinds often live a high reward-high risk business life.  They do stressful work, whether they are doctors, lawyers, accountants, pilots, engineers, athletes, business owners or other professionals.  It has often taken a long time and a lot of hard work to reach a level of success and sometimes the family suffers.  Relationships are hard to maintain in the best of circumstances, and professionals often are called on to make personal sacrifices to advance in their careers.

As a result of many factors, professionals may end up facing a divorce.  If that time comes, they usually prefer to work through the process as quietly as possible, for many obvious reasons.  Because of that, Collaborative Law has become an attractive option for professionals dealing with divorce and other family issues.  Here are some considerations that lead to that conclusion:

1.  Collaborative Law affords the parties privacy.  Instead of filing various pleadings and motions in court, having hearings and depositions, and doing voluminous discovery, the parties in Collaborative Law have a series of short, private meetings to work out agreements.  It is a less-adversarial process and it works quietly in confidential meetings.  The parties agree to stay out of court until they prove up the final agreement.

2.  Collaborative Law permits flexible scheduling.  Many professionals are quite busy and just aren't able to suddenly change schedules and run to the courthouse or show up for depositions.  In Collaborative Practice, the meetings can be scheduled to work around the availability of the parties and minimize the inconvenience for everyone.  That rarely happens in litigation.

3.  Neutral experts are used in limited roles in Collaborative cases.  We normally use a neutral mental health professional (MHP) to assist the parties communicate effectively and deal with the stress of the process.  The MHP often helps the parties resolve children's issues as well.  In addition, we use a neutral financial professional (FP) to gather and organize the financial information.  The FP also leads the discussions reviewing the financial summary and generating options for property division.  If we need to get appraisals of real estate or business values, we hire one neutral expert to establish the values.  All of that is in contrast to litigation where each side independently usually hires their own set of experts, doubling the cost and increasing the fighting.

4.  Both sides are helped to be realistic.  Using neutral experts and having experienced Collaborative lawyers all working together to help the parties come to agreement truly benefits the parties.  Instead of encouraging the parties to take extreme positions in negotiations, the team helps the parties focus on their underlying goals and needs.  They also help the parties be reasonable in their objectives by openly dealing with the facts and information that is shared throughout the process.

5.  Help is available for the difficult emotions often experienced in divorce.  Collaborative attorneys are better prepared to deal with emotional issues, but even more important is the MHP who attends all the joint meetings and who can also work one-on-one, not to provide therapy, but to help the parties deal with the emotions and challenges of making important personal decisions and changing relationships.

Collaborative Law won't work for everyone, but it can be very effective and not as difficult or destructive as litigation, in the proper case.  Professionals can get information about Collaborative Law by talking with attorneys, MHPs or FPs who are trained in the process.  Good luck!

Why Is It Taking So Long? (Part 1)

One of the most common frustrations expressed by people using the Collaborative Law model to go through a divorce is the speed (or perceived lack thereof) of the process. To me, it's a matter of perspective. When people are directly involved in regular joint meetings and meetings with their attorney and meetings with the neutral professionals, they can seem to be very busy. That is a ground-level view and it may truly seem like the process is creeping slowly along when there are 2 or 3 or 4 weeks between joint meetings. In reality, there's usually a fair amount of work getting done by various parties between the joint meetings, but it is very easy to overlook that.

Perhaps a more comforting approach is to look at the process from a figurative 30,0000-foot elevation. Looking down from high above, the Collaborative divorce process may appear to be moving much more quickly.

Comparing Collaborative to Litigation

Another way to compare the situation is to look at what would be happening if the the case were proceeding through the courts in Texas. In Tarrant County divorce courts, you can count on an average of a year, and often a year and a half, to complete a contested divorce, depending on which court you are in and how complicated your case is. Here's why:

1. Discovery can be very tedious. It is the process of gathering, organizing and sharing information between the two sides. In litigated cases, there are usually written requests for documents, written questions and some other requests for information. The parties usually have to produce documents for the last 3-5 years, at least. Many of the requested items are just minimally relevant, but everyone wants to cover all the bases and not overlook anything. The parties are usually given 30 days to produce the information, but that's usually extended because they can't get everything together that quickly.

• After 60-90 days, the initial exchange of documents is usually completed, but one party or both usually don't think they've gotten everything, so they file motions to compel production and sometimes motions for sanctions. Those are set for court, hearings are had and there's a ruling, usually to produce the documents or answer questions.
  
• In addition, experts have to be appointed to appraise businesses, real estate or pensions, and then you have to wait for their reports.
• Afterwards, there will probably be depositions of the parties and any experts.

2. On contested children's issues, litigation is often a slow process as well. Here in Tarrant County, some courts will give a temporary custody hearing right away, while others want to do an investigation before having the hearing. Some will just start by each parent having the kids for alternating weeks, regardless of how the children have been living and regardless of parents' schedules. Often, the parents are sent to Access Facilitation to try to work out a time-sharing arrangement, and that's great when it works. If the case is truly contested, most courts will order a Social Study which usually takes 6 to 9 months to complete. In the meantime, the court will usually order the parties to attend a co-parenting class.

3. There are usually numerous court settings on contested cases. Different matters are often heard at separate times and sometimes new hearings are scheduled when the situations (facts) change. Hearings get postponed for various reasons, which can be very frustrating. In some cases, there's not an immediate decision from the judge. There are lots of opportunities for delay in the litigation system.

Conclusion: Even though a Collaborative case may feel like it's moving slowly, it's probably moving much, much faster than a contested litigation case would have been with the same issues.

How Would You Describe Collaborative Law?

Some people who are about to go through a divorce (or other family law controversy) are able to take a little time and investigate what is ahead of them. Some focus on information about how to go to court and assume that it is the only alternative. Others try to imagine how they would like to deal with the legal issues and then look around to find out if that is possible. Of the former group, some get lucky and find out about various alternatives. Others get ensnared in the legal system without knowing that there are various approaches that can be used, depending on the circumstances of the case.

For those who approach the investigation with an open mind and some curiosity, here are some descriptive terms that can lead to consideration of Collaborative Law as the preferred option.

• Civilized. Having peaceful discussions, assisted by trained professionals, can be a much more effective means to reach a mutually agreeable solution than going to court and hurling charges at each other.
• Friendly. While not all Collaborative parties remain friendly, there is certainly a better chance that it will happen in the environment of joint meetings, especially when a trained, neutral therapist is working on the case.
• Private. Instead of filing charges and making demands in public documents and testifying in an open courtroom, Collaborative cases provide a private venue where the parties talk and work in the privacy of their attorneys' or other professionals' offices.
• Maintaining control over the process. In a Collaborative case, the parties determine the issues and schedule. In litigation, there are often court-imposed deadlines and schedules.
• Making your own decisions. Collaborative case depend on the parties to ultimately reach their own decisions instead of turning the issues over to a judge who often knows little about the case.
• Saving money. While it cannot be said that Collaborative Law is cheap, it is true that the process saves money in several ways by, among other reasons: using joint, neutral experts; avoiding the tedious and expensive written discovery process; and not having to wait for judges and others at the courthouse, as often happens.
• Less stressful. In Texas, we usually hire a neutral therapist to work with both parties and assist them in communicating more effectively, as well as managing stress. In addition, not facing the courtroom and trials (or hearings) is a great stress reliever.
• Use of neutral experts. Collaborative attorneys normally hire joint, neutral experts for financial issues, appraisals, psychological issues and other matters.That produces greater confidence in their advise and avoids a battle of experts that often happens in litigation cases.
• Cooperation. The Collaborative process depends on cooperation and the attorneys work to educate and screen prospective clients before starting the process to make sure they will be cooperative.
• Face-to-face discussions. Instead to turning issues over to a judge or having discussions filtered through the attorneys, Collaborative cases progress by having the parties and their attorneys (and usually the mental health professional) have direct discussions.
• Full disclosure. Although non-Collaboratively trained people sometimes doubt it, the process does provide for full disclosure of all relevant information. Requested information is frequently withheld in litigated cases, and Collaborative cases ultimately have the same safeguards as litigation cases. But Collaborative cases also have an additional layer of protection built in with the work of the neutral financial professional (FP) who reviews and evaluates the financial information provided. The FP will request additional information whenever he or she notices something is missing. That protection is not normally present in a litigated case.
• Customized. Instead of relying on standard formulas for child support or property division or standard schedules for visitation, Collaborative cases encourage the parties to think outside the box and come up with creative new solutions.
• Voluntary. If both parties agree to try Collaborative Law, they can do so. If either one doesn't want to do it, then they won't. It can't be forced on anyone.

People facing legal action in family law matters should research their options and make an informed decision about how to best proceed. One way to do so is to do an Internet search using the above terms along with "divorce" or "child support" or "child custody" or other such issue. It would also be wise to meet with a trained, active Collaborative lawyer to fully consider whether Collaborative Law would be appropriate for their situation.

Can We Switch from Litigation to Collaborative Law?

Sometimes, a Collaborative-trained lawyer will file a family law case and start it as a regular litigation matter. After a little work has been done on it, the other side may hire a Collaborative attorney and want to convert the case into a Collaborative case. Some people question whether that is possible. The short answer is "Yes", we can switch processes in mid-stream. Another relevant question, however, is whether that is advisable.

Initially, the change is fairly easy to accomplish mechanically. Just like in any other case, the parties would need to commit to the Collaborative process, including the attorney withdrawal provision, and sign a formal participation agreement. The parties would then file (in Texas) the notice of Collaborative proceeding with the court.

Why would you want to do this? For any and all of the reasons often discussed: having a less-stressful environment, letting the parties control the timing and outcome of the process, privacy, the opportunity for creative solutions, etc.

A slightly more difficult question is when you should make the change. The best answer is probably as early as possible, before damage is done by tactics, testimony and other means. Switching early leaves more options open.

One approach which is a very bad idea (in my opinion), is to postpone the switch until some temporary orders are entered using the traditional litigation approach. An attorney who proposes that is clearly not fully convinced of the value and success of the Collaborative process. Such an approach limits options and poisons the relationship between the parties. It would make the Collaborative process much more difficult because the attorneys and parties get used to treating each other the way they do in litigation. It also necessarily includes decision making on important issues, financial and personal, without the benefit of having the neutral financial and communication specialists involved.

The difference between that approach and the decision to switch generally is that when both sides say they want to use Collaborative Law from the outset, but one side wants to get some initial orders made under the litigation approach, that one side is clearly undermining the Collaborative approach and expecting the court to favor them in some way that the other side would never agree to. Once a party is taken advantage of like that, it will be hard to be effective in Collaborative Law.

The Bottom Line: It's OK to switch from litigation to Collaborative Law, and it's not hard to do. But, the sooner the switch, the better.

Facing a "Later in Life" Divorce -- Part I

As Baby Boomers reach retirement age, they not only face changes in their work life. Increasingly, they are facing changes in their home life. Having a long-term marriage doesn't necessarily mean that divorce is out of the question. Facing a divorce in your 50's, 60's or 70's involves some serious concerns that may appear to be of a greater magnitude than the same issues experienced by 20-something, 30-something or even 40-somethings.

Typical issues for older Americans facing divorce include such familiar topics as housing, employment, retirement, health insurance, children and debt management, among other things.

• Can you afford to keep the house? Should you? Should you sell it to cash out?
• If you have a job, how long can you expect to keep it? If you don't have a job, are you employable at your age?
• Will retirement funds that might have been sufficient for one household be enough to support two households?
• Do you have health insurance available?
• Do you have children in college? Do your adult children live at home or still need financial support? Can your children help support you?
• How much debt is there? Can you afford to pay it off? Is bankruptcy on the horizon?

If you, or your spouse, file for a traditional litigated divorce in Tarrant County, Texas, what can you expect? While each judge is a little different, here, you would probably see something like this:

1. The initial consideration is whether you have a job. If you have a job, the question becomes how far you can stretch your income. Often one spouse has been the primary breadwinner and the other spouse has provided a supplementary income that was much lower. If you are the lower-income spouse, you will be in for a difficult time. Texas courts can't provide much alimony by court order, although you may get your spouse to agree to pay alimony at a higher level or for a longer period of time. Usually, you can't expect to just live off the alimony.

If you don't have a job, and aren't at retirement age, at the time of separation, you will probably face pressure to get a job right away, even if you have been out of the workforce for a number of years or if you lack training for a good job.

2. One of the spouses can probably keep the house if he or she wants it and can afford it. Of course, it may be hard to afford it without a job. There may also be pressure from the other spouse to sell the house and split the cash, even if you couldn't qualify for a new mortgage.

3. The other financial issues revolve around whether there is enough cash available. If you are lucky and there's plenty of income and other assets, you may be able to divide the property and debts and still live comfortably.

On the other hand, if cash is in short supply, it won't get any better when you divorce.

In a litigated divorce, the basic approach is to encourage an unemployed spouse to get a job and then divide the assets and debts, usually in the neighborhood of 50-50. If there's a great disparity in income between the parties, a court may give a little more of the assets to the lower-income party, but that doesn't always help, especially if the main asset to be divided is a retirement account.

There's normally no mechanism to get education or job training or job counseling for an unemployed party. Basically, you're told to take this pile of cash and take care of yourself (assuming there is a pile of cash -- often it's more likely to be a pile of debts). There's no attempt to do financial planning in most divorces and no significant thought goes into property division other than determining a percentage for each side.

In many cases, going through a later in life divorce can be very traumatic and can end up with one or both parties in a worse situation financially and, sometimes, personally.

So, what can someone do?
One way to mitigate the effects and the experience of divorce for more mature people is to consider using Collaborative Law. In the next post, I will contrast how Collaborative Law can help manage the later in life divorce.

Is Collaborative Law Cheaper than Litigation?

This is one of the most common questions I hear. Some people have gotten the idea that Collaborative Law is cheaper than litigation. In fact, some attorneys tell people that it is a cheaper process. Unfortunately, we can't really determine that.

No Way to Compare

In some ways, I would like to think that Collaborative Law would be less expensive, but no one can really answer the question because there's no way to compare the processes. If you think about it, you can see that there can be no direct comparisons:

• Each case is different from every other case, so you can't make meaningful comparisons between two different cases. While there could be two cases where the parents each need to work out arrangements for their three children, there will always be differences that affect the amount of time and effort the parties and attorneys must expend. Maybe the father wants primary custody in one case and the mother wants primary custody in the other case. Different work schedules or special needs of the children or parents would impact the cost of a case.

• There's also no way to take one case and figure out its cost in Collaborative Law and then re-calculate it as a litigated case. There are always unplanned events during a case as the parties move toward resolution. Things would happen differently under each approach, so the parties might have to do more or less work in one system as compared to the other system. In other words, there could be multiple hearings or numerous discovery fights in a litigated case, and there could be extra meetings in a Collaborative case if new problems develop.

However, there are two questions which can be answered.

1. Is Collaborative Law cheap? I would say that it usually is not, but of course "cheap" is relative. Collaborative would be cheap if there weren't many meetings. In some case, it happens that way. Most of the really easy cases, from my experience, don't go into the Collaborative process. Instead, the parties work out all or most issues informally and then the attorneys help them finish up an agreement.

Since the easy cases settle out quickly (and cheaply), that leaves the more difficult cases to be resolved. By the nature of the cases, we usually have a full team of professionals and have multiple meetings. We can achieve good results, but it will not be cheap.

2. Is the Collaborative Law result worth the cost? From my perspective, yes. Here's why:

• Consider what's at risk. Collaborative Law allows the parties to deal with personal issues in privacy. They get to be the ones to make their own decisions, instead of letting a stranger decide the details of their personal lives. Collaborative parties can work out unique, customized solutions to their problems, instead of following standard guidelines that may not make sense for them. They also work in a less-stressful environment and communicate and participate in a manner that helps preserve, and sometimes improve, their family relationships.
  

• Consider the result attained. The parties are always focused on meeting their own goals and special needs. The process is efficient in dealing with the most important matters and making sure that both parties have input and the benefit of neutral experts as needed. In the end, the Collaborative parties create their own solutions targeting their most important goals, needs and interests. A plan is put in place only if both parties agree to the terms.
  

• Consider the effects of maintaining good family relationships. There's a greater likelihood that the parties can continue to work things out without court intervention if they continue to either use the Collaborative team or use the skills they learned in the process. While it's common for parties in the litigation system to frequently go back to court several times until the youngest child turns 18 (and sometimes later), Collaborative parties tend to be more willing to talk civilly and compromise. In this case, you can truly say that talk is cheap -- cheaper than hiring lawyers and going to court.

To summarize, I can't compare systems and say that Collaborative Law is cheaper than litigation, I don't claim that Collaborative Law is cheap, but I would conclude that it is worth the cost.

5 Ways Collaborative Law is Like the Space Program

We recently had another successful launch of a space shuttle, but you may not have noticed it. We are near the end of the shuttle phase of the U.S. space program, about to switch to other vehicles, and we don't tend to pay attention to take-offs and landings as much as we used to. It's probably not a good idea to take space travel for granted yet, but people have accepted it as a normal part of life. While there are still innovations to be expected in the future, we are pretty comfortable with how space travel happens now.

After the recent launch, I began thinking about similarities between Collaborative Law and the space program. That may seem like a very strange comparison, one that doesn't immediately jump to mind, but there are some legitimate common features. Here are some I noticed:

• Both use old skills and equipment for new purposes in other fields. In the space program, a lot of the equipment was converted from wartime use to peaceful purposes, such as rockets and guidance systems. In Collaborative Law, we have begun to use neutral specialists from other fields to work with both parties to help them reach appropriate agreements.

• In both fields, we converted former fighters into peaceful leaders. The original astronauts were trained fighter pilots in the military who converted into peaceful space pilots. Most Collaborative lawyers are former litigators who learned and practiced trial skills. Sometimes, attorneys have trouble converting their focus to a peaceful process, but it will happen with experience.

• Both programs depend on a lot of cooperation and a blend of many different skills. The space program is a very complex system with many interrelated contributors around the world. Collaborative Law requires cooperation between two parties, their lawyers and usually some other neutral professionals. The process is effective because everyone works together and contributes some part to creating successful negotiations. Communication skills are improved by the use of mental health specialists. Financial and parenting decisions are improved though the use of neutral experts in each field.

• The space program is a peaceful endeavor and peace is the essence of Collaborative Law. NASA is a civilian agency that oversees the U.S. space program and the focus has been on peaceful advances in science and transportation. One of the main attributes of Collaborative Law is that it is much more peaceful than the destructive processes inherent in family law litigation. Going to trial, cross examining the other parties and witnesses and focusing on events in the past are all elements of the litigation approach that places little value on kindness, civility and family relationships. Collaborative Law provides a safe, creative and effective way for both parties to achieve their most important goals without tearing each other up.

• Some day, hopefully soon, neither space travel nor Collaborative Law will be a big deal. They will both be the norm. People will be able to travel to far away planets and it will become common. Probably sooner than that happens, we expect Collaborative Law will become the primary method of resolving disputes. Now, these are both considered somewhat visionary, but that will change before too long.

Stay tuned. Collaborative Law has been launched and is coming more and more into view!

Getting What You Want -- First Ask for It

Today I saw the weekly newsletter that Francie Cooper, a local life coach, publishes. She also has a blog. The newsletter had an interesting article about the need to ask for something that you want. She says it's the first step in attaining your goals and meeting your needs. Asking for things is also a key part of the Collaborative process.

Asking for things occurs in two ways in a Collaborative case: first, in setting up their goals, the parties are identifying and asking for what they want; second, to get specific agreements, the parties themselves must ask for what terms they want. In contrast to litigation, the parties speak for themselves, rather than let the attorneys do the talking in negotiations.

Francie illustrated her article with two examples that also illuminate the Collaborative process. In one example, a woman wanted a specific kind of car at at specific price. In the other example, Francie's son figured out he needed more money for college than he had planned on. Each story had additional elements that also related to Collaborative Law.

• In each case, the person started off with specific goals.
• Each person followed up by gathering information and organizing it.
• The information was presented to the other party in the negotiations in a persuasive manner, the person asked for what she or he ultimately wanted and there was a discussion which lead to agreements.

It sounds much like Collaborative Law and shows that the basic structure is sound.

Litigation
One of the main differences between Collaborative Law and litigation is how Collaborative Law focuses on the goals of each. In litigation, where there's negotiation, it is usually positional bargaining instead of interest-based negotiation which is the basis of Collaborative Law. In litigation, in a property division discussion, most times the talk is about what percentage of the assets and liabilities each party will receive. Each side often stakes out an extreme starting position so that they can compromise and end up where they want to be. In other issues, there are more or less automatic decisions on some issues like setting child support and a visitation schedule. In each case, there's very little discussion.

Collaborative Law
By contrast, in Collaborative cases, the focus is on how to achieve various goals. Once the goals are established, the parties gather information and then go through a brainstorming process to generate options. After evaluating the options, each party asks for what they want to help meet their needs. Instead of automatic formulas to be applied, there is a genuine discussion that leads to an agreement. The parties must speak up for themselves and ask for what they want. There is a full discussion of the various options and the parties generally reach a conclusion that they are both satisfied with.

Can You Use Collaborative Law When There's Been Adultery?

Yes. And it's interesting to see how differently adultery is addressed in litigated divorces and in Collaborative Law divorces.

Litigation

For the people who are just angry and want to fight for the sake of revenge or to punish their spouse, adultery becomes a convenient scapegoat to help blame everything on the other party. Even where there was no adultery, in some litigated cases, the spouse who thinks he or she was wronged still sometimes makes adultery allegations a central part of his/her case, despite a lack of proof. Unfortunately, we can't do anything about people operating contrary to facts, logic and common sense.

Sometimes, a party to a divorce becomes so consumed in punishing a spouse for marital transgressions that the divorce overwhelms the parties emotionally and financially. In one case involving an estate of about $200,000, the wife believed that her husband had a girlfriend. He denied it, but still offered 60-65% of the assets because he made a lot more than his wife did and he didn't want to fight. His wife refused and continued to fight. She fought for over three years, spent about $100,000 in attorney's fees, and she still ended up with about 60% of the assets.

There are cases where adultery undeniably has occurred, but that fact rarely makes a major impact on the divorce judge's decision, unless you happen to find yourself in front of one of the rare judges who puts an emphasis on it. The odds are against you making any difference in the outcome just because there has been adultery.

Collaborative Law

In a Collaborative case, the parties are focused on their goals and problem solving. In litigation, the focus is usually on what happened in the past, while Collaborative Law focuses on the future. Instead of rehashing past mistakes and bad behavior, Collaborators usually move on and try to find or create solutions. Many Collaborative cases have involved cases where adultery has occurred and both parties know about it. And those cases are almost always successfully resolved in the Collaborative process.

If a husband or wife is very angry and can't get over that to focus on his or her goals, then Collaborative may not be an appropriate option for that person. It does required some emotional maturity and getting past the anger stage of the breakup.

What can you do if you want to do a Collaborative divorce, but you are very angry?

• Get some counseling for yourself to manage your anger and move forward emotionally.
• Get counseling for you and your spouse. That can help both of you address common issues in a safe environment, prior to divorce negotiations.
• Let some time pass. Everyone goes through several stages of grieving during a divorce, not always in the same order. Over time, perspectives and feelings change. At some point, you will be ready to work on the divorce without being consumed by anger and a desire for revenge.
• Consult with a trained and experienced Collaborative lawyer who may be able to help you focus on goals that are more important than just retribution.

Don't be afraid to try Collaborative Law when there has been adultery or an affair in the marriage. There have been many successful agreements reached where the parties have been able to work together then and in the future.

Is Collaborative Law a Threat to the Court System?

Some judges don't like Collaborative Law because they see it as a threat to the need for courts. In other words, there's a little job insecurity. To be sure, that's a minority view, but there are some judges with that concern. Some attorneys probably share that point of view.

From my perspective, there's no realistic chance that courts will be abolished. Here's five reasons why:

1. The biggest factor may be the shear number of cases to be decided. Thousands of divorce and other family law cases are filed each month in Tarrant County and in other counties around across the country. There are many more cases than there are trained Collaborative Lawyers. That means, for judges and lawyers, that there is plenty of work to go around, whether the attorneys are trained for Collaborative Law or not. The untrained lawyers will always have plenty of opportunities to go to court, even as the number of trained Collaborative lawyers grows. Tarrant County Collaborative lawyers will almost always try to sign up new cases as Collaborative cases if there is any possibility of going Collaborative. Of course, where one of the attorneys on a case is not trained in Collaborative law, the case can't proceed as Collaborative. Although more Tarrant County lawyers are getting trained in Collaborative law all the time, the great majority of cases are still non-Collaborative.

2. A second factor is that Collaborative Law won't work for some cases. Some of the reasons for that are:

• One of the attorneys isn't trained in Collaborative Law.
• The parties prefer to fight, or at least one does. Most attorneys will discourage fighting for fighting's sake, but some people look forward to hurting their spouse (not realizing or not being concerned about the harm to themselves).
• Unrealistic expectations can scuttle a Collaborative case. More experienced attorneys are usually able to sniff out the problem cases and avoid taking them into Collaborative. A party with unrealistic expectations will get frustrated and the process will usually break down unless someone can change that mindset.
• Some mental illnesses prevent parties from being able to function at a high enough level to follow through the steps of the Collaborative process. While mental illnesses can complicate any divorce, they can prevent a party from being able to cooperate and function appropriately in a Collaborative context.
• Similarly, drug and alcohol issues can prevent a party from functioning well in a Collaborative case, especially if the party is in denial about the problem(s). A therapist might be useful in evaluating whether the person can effectively participate in the process.
• Domestic violence can also make Collaborative Law inappropriate, unless there is remedial therapy and safe guards are provided.

When Collaborative Law is not a good fit for a case, the case will have to end up in the litigation system. Please note that the above list did not include cases where there was significant disagreement between the parties. Collaborative Law is not just for the easy, agreeable cases. It will work well for custody disputes and major property fights. Don't assume that Collaborative Law is only for agreeable people.

3. Administrative agencies, such as the Texas Attorney General, will be expanding their reach into the court system. Following past trends, you can expect the A.G. or the Tarrant County Domestic Relations Office to initiate, negotiate and settle many cases. They will also file cases and set hearings. So far, the A.G. and DRO are not trained in Collaborative Law, so they rely on litigation.

4. There will always be a few Collaborative cases that fail. It looks like somewhere from 5-8%, by some studies, will terminate and go to litigation. They need the court system to handle those.

5. Finally, some people just want someone in authority to decide their issues. Even thought the litigation can be slow, expensive and personally destructive, some people want their day in court. If either party has that feeling, the case must be in the court system.

While the Collaborative Law Institute of Texas wants Collaborative Law to be the preferred method of dispute resolution, no one believes Collaborative Law would work in every case. Our courts will undoubtedly survive past the foreseeable future. What we hope for is that Collaborative Law continues to expand so that more and more people will have it as an option.

Collaborative Law Works in Britain, Too

A recent article in the American Bar Association Journal provides further support for the use of Collaborative Law in settling disputes. The article quotes a senior British judge (in the London Times) as saying that Collaborative Law is much better than traditional litigation. The growth of Collaborative Law in the last five years, both in Britain and in the U.S., has been phenomenal.

There are many good reasons for the growth. I have previously posted on a variety of reasons why Collaborative Law often works better than litigation for resolving family disputes. If you are about to start a divorce or other family law procedure, you should discuss the possibility of Collaborative Law with your attorney. Be sure you are dealing with an attorney who has at least attended a two-day training on the process, and further experience is valuable. An experienced Collaborative attorney can help you analyze your case to determine if Collaborative Law might work. There are some cases where Collaborative probably won't work out, but in most cases, it's your best choice.

Hold Your Horses!

One of the biggest challenges in Collaborative Law is impatience. Sometimes, after the parties learn about the process and commit to using it, they suddenly grow very anxious to have the matter resolved. Even when the attorneys and other professionals explain the standard approach of five steps (set goals, gather information, identify issues, brainstorm and negotiate to resolution), some parties almost immediately forget about the first four or five steps and want to start the final negotiations without doing some or all of the preliminary steps.

Even when the parties and professionals spend valuable time establishing and clarifying the goals, needs and interests of each party, they are often quickly forgotten. Being very close to the issues, the parties often insist that they want the process to be completed in a very short time. They become very impatient and are often motivated by wanting to save money by "streamlining" meetings and taking shortcuts. The easiest and most logical way to do that is to independently come up with a suitable settlement. The party creating it usually becomes convinced that the plan is not only logical and inevitable, but it is the best for both parties. Occasionally, that is true, but more often the plan is unacceptable to the other party. Usually, the plan is conceived by one party only and is evaluated from only one perspective. It becomes a very uncollaborative process as one or both parties become motivated by quickly obtaining a result and finishing the settlement.

The Collaborative process works best when the parties follow the standard five steps. Sometimes that slows down the process from one side's perspective, but the other side is usually happy with the pace and especially with having input into the information gathering and the decision-making. It can be very helpful for the professionals to repeatedly remind the parties of the need to follow the standard structure of the process. Another helpful idea is for the professionals to explain how long the alternative, the litigation system, takes in common types of cases in that locale. A three-month long Collaborative case sounds quick when compared to a litigated case which usually takes about a year or more in Tarrant County, Texas.

A solution is much more likely when both parties contribute at every stage. That often means that one party believes the process moves too slowly. That cannot be avoided since the process will only move as fast as the slower participant. Usually, one party is moving more slowly through the emotional stages of a divorce and there is not any way to force the party to speed up the processing of the feelings and experiences.

If one party pushes the process and the other party to speed up a settlement through Collaborative Law, the result will often be complete failure of the effort to reach an agreement. If the parties will slow down, adjust their expectations and just work with the Collaborative professionals, they generally will reach an agreement.