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.

Is Collaborative Law Appropriate for Our Divorce?

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

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

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

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

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

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

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

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

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

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

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

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

Do You Want Attention to Details in a Divorce?

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

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

But, there are some other differences that have a cumulative major positive effect on the outcome of a case. They may sound minor, but they all add value to a problem-solving orientation.

• There's an agenda for each meeting and we stick to it.  That reduces surprises, limits the topics under discussion and makes it easier to prepare for a meeting.
• Minutes are taken.  We have a record after each meeting of what was discussed and what agreements were made, as well as what the plans are for future meetings.
• After each meeting, we have de-briefings.  The attorneys meet briefly with their clients to find out if there are any questions or concerns and to see how the client is feeling.  After that meeting, the attorneys and other professionals meet to review the meeting, plan for the future and consider how to deal with any problems that may have come up.
•  We use experts well.  We usually have a neutral therapist and a neutral financial advisor.  We can hire joint experts for tax issues, appraisals, psychological evaluations or other needs. There is a lot of freedom to bring in a variety of people, if we can benefit from them.
• It's a very private process.  Staying away from hearings, Discovery and other distractions, we can quietly work on the important issues.  We can help professionals, wealthy people and celebrities, among others, who don't want their private lives shared with the world. 

If you're facing a divorce or have some other Family Law issues, talk to a trained, experienced Collaborative Lawyer about whether the Collaborative process would benefit you.

How Do We Start a Collaborative Divorce?

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

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

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

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

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

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

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

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

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

Why Choose Collaborative Divorce Over Mediation?

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

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

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

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

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

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

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

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

How to Protect Yourself in Divorce Over 50

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

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

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

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

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

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

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

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

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

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!