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.

Collaborative Law is Good for Children

The Science Daily headline from May 8, 2008 contained the full message: "After Divorce, Stable Families Help Minimize Longterm Harm to Children".

One of the best things about Collaborative Law is that it encourages and relies on cooperation between the parents. Co-parenting skills are often taught and sometimes a child specialist works with both parents in creating a parenting plan that provides stability and access for everyone. Avoiding a tug-of-war contest between parents is really beneficial. Add to that planning and forethought, and a healthy environment can be maintained or created for the children.

The Science Daily article discussed a study at Ohio State University. "The study compared children who grew up in three different situations:

• Children who grew up in always-married households (5,303 children).
• Children whose parents divorced before the study began, but who lived in a stable family structure between ages 14 and 18(954 children).
• Children whose parents divorced prior to the beginning of the study, and whose family situation changed once or twice between ages 14 and 18(697 children).

"In the two divorced family groups, children may have lived in single-parent families or ones with a stepparent. The key for this research was whether that arrangement – whichever it was -- changed between ages 14 and 18).

"The researchers compared how children in these groups fared on measures of education, income and poverty in 2000 when they were 26.

"Results showed that young adults who grew up in stable post-divorce families had similar chances of attending college and living in poverty compared to those from always married families. But they fared less well on measures of the highest degree obtained, occupational prestige and income.

"However, the young adults who lived in unstable family situations after their parents divorced did worse on all measures. In fact, they fared more than twice as poorly on most measures compared to their peers who had stable family situations."

Here's my interpretation and opinion:

Although there have been no scientific, long-term studies about the effects of a Collaborative divorce on the children, it is reasonable to surmise, considering the Ohio State study, that the Collaborative skills used by the parents to produce an agreement will often or even usually carry over to the post-divorce lives of the parents and children. Clearly, one of the most important advantages of Collaborative Law is that it enables the spouses to maintain important family relationships on relatively good terms in spite of the divorce. That will help create a more stable atmosphere for the children.

In addition, the parties may be better off financially after a Collaborative divorce as compared to a typical litigated one. While we really can't compare the costs of a divorce with the cost of how a divorce might have been (too many variables), it appears that there can be some savings in a Collaborative approach because of the cooperation and avoidance of unnecessary busy-work steps. The result is that the parties often are going to be not as financially devastated as they are in a typical litigated divorce. Starting post-divorce life in better financial shape will make it easier to be financially stable, which can be a major part of overall family stability.

My conclusion: Collaborative Law will encourage and enable a safer, more stable environment for children after a divorce, and that's certainly better for the children in terms of education, income and poverty.

Thanks to Jeffrey Lalloway of the California Divorce and Family Law blog for the mention of the Ohio State Study.

I Don't Want to Lose My Lawyer

One of the most common complaints about Collaborative Law is that if the process breaks down, both attorneys will have to withdraw. Some parties spend a considerable amount of time selecting an attorney. They may rely on the advice and information offered by friends or trusted advisers. They may have researched quite a bit on the Internet. After hearing how experienced, effective and knowledgeable an attorney is, a client often is reluctant to agree to a process that could not only fail, but which could cost the chosen attorney.



In a similar vein, after starting work on a file, many attorneys are reluctant to agree to withdraw from representing a good client just because the negotiations were unsuccessful. Sometimes, the failure to reach an agreement is the fault of the other party. Either way, it may not seem "fair" to have to withdraw.



As an attorney, I certainly understand the discomfort in agreeing to possibly withdraw, and I can sure understand how many clients feel. Nevertheless, as much as I would like to think that I am indispensable, I have to admit that there are many other quality attorneys with plenty of knowledge and experience who can more than just adequately represent my client. In other words, the biggest potential loss may be for me to lose a client. Intellectually, I know I am clearly replaceable. There are many fine attorneys available who can litigate a case if needed. I just hate to lose the business, and I think that is generally true for all attorneys.



Actually, my opinion is that the withdrawal requirement is one of the best mechanisms to help ensure success in the Collaborative process. The fact that both the attorney and the client have a lot to lose creates an incentive to negotiate seriously, in good faith, and not give up. It is very easy to reach a point of disagreement and have one party or both get tired of arguing and say, "If you don't agree to this, I'll just take you to court and let the judge decide." Fortunately, that's not an option in a Collaborative Law case. Instead of just punting an issue to a judge, the choices are to become creative and find new solutions or go out and hire new lawyers so you can go to court.



As a result, the great majority of Collaborative Law cases are successful in reaching agreement. The logical sequence of setting/defining goals, gathering information, brainstorming and then negotiating to reach an agreement is very successful. Collaborative cases also encourage the creative use of other resources, such as neutral experts for various issues. In Collaborative Law cases, the parties are not bound by the "standard" approaches or guidelines. In fact, they are encouraged to think outside the box and to try other unique solutions.



The bottom line is that attorney withdrawal provision in the Collaborative agreement is one of the most important reasons why the process works. It provides the best incentive for both clients and attorneys to work together effective to solve the marital problems.

Save Your Marriage with a Postnuptial Agreement

In a post yesterday, Sam Hassler, who writes the excellent Indiana Divorce & Family Law Blog, wrote about postnuptial agreements again. These are agreements that are signed during a marriage which divide some or all of the property and debts of the spouses. They can specify who controls various assets and who is responsible for various decisions. The agreements can also cover assets and income that may be acquired in the future. There are many things that can be done with such an agreement and just as many purposes for creating them.

Sam referred to an article in CNN.com that discussed a benefit of postnuptial agreements that isn't often discussed. It mentioned a case where a husband and wife could not agree on significant debt and property issues to the point that their marriage was under a strain. That is not an unusual situation. Rather than get a divorce, however, they decided to do a postnuptial agreement. It was one of the best things they could have done.

As the CNN.com article noted,

" 'In cases where couples want to stay married, it can apply very efficiently,' says Cambridge, Massachusetts, attorney John A. Fiske. 'If they don't want to stay married, it's hopeless.'
"The Boston couple, who had been married 30 years, fell in the former camp. Fiske helped them put into writing a mutually acceptable financial plan. They agreed to transfer their house into the wife's name, both to address her fear of losing the asset and to insulate it from the husband's business debts, and to split the mortgage and other household expenses.
"That was 18 months ago, and they credit the post-nuptial agreement with helping them become a mutually supportive couple again."

The CNN article actually talks about mediation, but Collaborative Law would work very well in this situation. Using the Texas model, we would bring in a neutral financial advisor to help both parties find beneficial ways to meet their needs and goals. Each party would have his or her own attorney to make sure the process worked to everyone's advantage. There have been cases in Texas where the parties started a divorce proceeding and later switched to working out a postnuptial agreement when they realized that they still wanted or needed to be married, even though there were some significant financial issues that were splitting them apart. In such a situation, the Collaborative process is a great way to create a new financial arrangement between spouses and possibly save a marriage.

What You Can Learn from a Divorce Coach

I have just run across another blog about Collaborative Law. It is from Maryland and it has some really good posts about Collaborative Law. The posts show some of the variations in how the Collaborative process is used in various states. The blog is called Divorce Without Dishonor and is written by Michael A. Mastracci of Baltimore. I recommend that you check it out. Although in Texas we usually utilize a single,neutral divorce coach/communication coach/mental health professional, that person's role is virtually the same as what Michael explains for Maryland. The following is a post from that blog:

"In a collaborative divorce, each spouse usually hires their own divorce coach to help them learn to communicate and negotiate more effectively. These coaches are an integral part of the collaborative divorce team. They teach life skills that will form the basis for your post-divorce relationship with your spouse. If you have children, the skills learned from your divorce coach can make co-parenting go more smoothly after the divorce.

"Your divorce coach will provide you will skilled help in:

Managing your emotions appropriately.

• Separating your thoughts from your feelings.
• Thinking through emotionally charged issues.
• Learning to talk about difficult problems in a businesslike manner.
• Setting short and long-term goals for yourself, your children and your co-parenting relationship.

"Conflict management, creative problem-solving, negotiation and productive communication are among the valuable life skills you can learn with the help of your divorce coach. Your coach can help you identify bad habits and problem areas in your relationship with your spouse and learn to communicate more productively. Divorce coaches help you and your spouse focus more clearly on your individual goals and the positive changes that can come about as a result of your divorce."

Again, the description is extremely similar to what our joint neutral expert does here in Texas. The bottom line is that Collaborative Law provides an important tool that is almost never used in litigation, and the stress, fighting and destruction of relationship are the harmful results of that deficiency in litigation. In Tarrant County, Texas, we use the single neutral coach more and more, and the benefits are apparent. Talk to your Collaborative attorney and find out how you can work with a coach to help you reach a successful resolution through Collaborative Law.

Can We Use Just One Lawyer for Both of Us?

In a word, NO!

There are several reasons why both parties can't use the same lawyer.

1. It is unethical in Texas for an attorney to give legal advice to two opposing parties in a dispute. An attorney will not risk his or her license to do that. Even if that were not the case, each party would still need a separate attorney.

2. The definition of Collaborative Law in the Texas statute, and the way Collaborative Law is practiced elsewhere, provides for each party to be represented by his or her own attorney. It is mandatory. If the parties want to negotiate and if one or both parties decide to proceed without an attorney, they can attempt to reach an agreement, but it would not be the Collaborative process.

3. Even if attorneys were not mandatory, there are good reasons for each party to hire one. Attorneys benefit their clients by performing the following services:

• Advise the client on various issues, such as what a judge or the law might do in a given situation. Give some practical advice from experience in divorce or other family law matters.

• Educate the client on how things work in the legal or family systems.

• Motivate the client to keep working on a settlement, even when the going gets tough, which happens in many Collaborative cases. Remind the client about how bad the alternatives can be.

• Do the paperwork. Someone has to file the original petition for divorce, notify the court that the parties have agreed to use Collaborative procedure and file periodic reports with the court. Once agreement is reached, it will be necessary to do the final papers.

• Be an advocate for the client, but in a different way than is common in litigation. In a Collaborative case, the parties do most of the talking at the joint meetings. Attorneys can provide some information and suggestions, but rarely speak for the client the same as they would if they were appearing in court or participating in settlement or mediation negotiations. Attorneys deal with the other professionals outside the meeting and help prepare the client for Collaboration.

• Work with the other professionals. The attorney will help set up the process, organize and frame the issues and meet with the other professionals before and after the joint meetings.

• Attorneys also help their clients stay connected to reality as they work through the Collaborative Law process. Sometimes parties can become unrealistic in their expectations of how the process will work. Some people start out thinking about how easy the process will be and then become upset if it slows down. Attorneys can remind the parties about the various problems that may come up, so there are few surprises.

• Attorneys also help maintain a balance of power between the sessions. If only one party had an attorney, the other party might feel intimidated and certainly would lack the information and understanding needed to have fairly equal parties.

You can handle your own divorce without a lawyer in Texas, if you prefer, but it just can't be a Collaborative divorce. Each party must be represented by a separate attorney for the Collaborative approach to be used and to get a better result for both parties.

Why Do We Need a Financial Professional

In a Collaborative Law divorce case, you may not need a financial professional (FP) if there are just child custody and visitation issues. If there are property issues, you should include a financial professional to help the parties. Financial professionals help in a number of ways.

• FPs help both parties develop budgets for the future so they can make realistic plans and assessments of needs.
• FPs can gather and organize various financial records. They can save time (and money) for the parties by efficiently dealing with various financial records. They can certainly do better work than most attorneys.
• FPs can discuss tax consequences of various actions with both parties. That can have a major effect on decision making.
• FPs are neutral, so they don't take on the role of the "hired gun" which they might have done in a litigated divorce. They work for both parties and have a lot of credibility. They help both parties and are committed to helping the parties achieve an agreement.
• FPs can provide income, expense and tax projections into various points in the future to help the parties understand what their needs will be. That helps the parties create customized plans to help reach their goals.
• FPs are helpful for the parties when they need to generate options while brainstorming. The more ideas that are considered, the better chance that both parties will be satisfied.
• FPs can explain, with credibility, various financial terms and concepts so that the parties can plan and evaluate more effectively.

The above are some of the benefits of using a neutral financial professional in a Collaborative case, but what about the cost? While they aren't free, they can be a bargain. Most cost less than a single attorney. If you consider the alternative of having two attorneys helping the parties handle the financial issues, the advantage is obvious. Not only do the parties save fees, they save time because of greater efficiency and they produce a better analysis. In addition, a neutral expert can help the parties settle disagreements. Looking at the benefits, it is clear that a financial professional will be a huge benefit for both parties with little or no downside.