How do We Start a Divorce Now?

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

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

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

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

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

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

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

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

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

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

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

New Advantages of Collaborative Divorce in the Covid-19 Crisis

There are lots of reasons to like Collaborative Law: privacy, confidentiality, safe environment, expert help, equality between the parties, control over the timing, control over the outcome, less stress and more creative solutions, among other things.

While I am already a Collaborative Divorce proponent, the Covid-19 pandemic has created conditions that show some new values from using the Collaborative process.

Here are some ideas to think about:

1. The Collaborative process gets around the backup at the courthouse.  With Collaborative, people can immediately begin meetings and working on their cases, making interim decisions as needed.  It won't matter to them how crowded the courts are.

Contrast that with the litigation situation. Our courts will not open until at least June 1. When they re-open, they will have been closed for 2 1/2 months. The floodgates will open June 1 when the courthouse opens. We will have cases that started during the closure and additional ones that are filed in June. There may be more filings than usual in June and July if people have gotten as tired of each other as it appears they have. The backup could last for months.

2. Collaborative cases tend to involve more creative, less standard, solutions.  Our economy is really in bad shape and that affects a lot of the issues in divorces. We have had unusually sudden and severe problems. Business values change. Income changes. People lose their jobs. Under those circumstances, standard solutions don't always make a lot of sense. It makes more sense to base the decisions on the needs, abilities and interests of the parties, rather than just an arbitrary percentage or standard solution.

3. Collaborative Divorce allows the parties to address their real fears and concerns. We negotiate based on the actual needs of the parties instead of taking extreme positions to begin bargaining, expecting to meet in the middle. And the middle often is nowhere near what each party really wants or needs.  In Collaborative cases, we don't insist on standard guidelines or solutions. We put together a settlement around what would help each party, so both parties come out ahead.

In our unusual environment,  there is extra value when we use the Collaborative process for divorces as we fight through the Covid-19 pandemic.

The Need for Patience

Many people take quite a long time deciding whether or not to get divorced. That's normal and probably a good thing. It is such an important decision that we shouldn't jump into it lightly.

However, once they make the commitment to divorce, many of these people become anxious to get it over with.

As unwelcome as the news is, sometimes people just have to be patient. The Collaborative Divorce process takes time and it may take time for the other party to become comfortable with the prospect of divorce, which may have been unexpected. 

So, we often have one person who was slow to decide initially who is now in a hurry, while the spouse is unprepared and slow to adjust to a new reality of divorce. The different speeds of people can create conflict.

Here are some suggestions for dealing with that friction between the parties.

1.  Most importantly, the "speedier" person needs to be able to honestly explain why speed is important.  There may be good reasons which everyone can understand.

• The person may be moving or starting a new job.
• The person may be in a new relationship. That's often not a popular explanation until the second party is emotionally in the same place. Patiently waiting to discuss that is usually a virtue.
• The person may want to end the financial drain of a divorce. Divorces aren't cheap. Even a Collaborative Divorce is somewhat expensive. It's probably in everyone's best interest to not drag out the divorce with continuing meetings (which is similar to the desire to stop court hearings in litigation).
• The person may be ready to start over fresh.
• Any divorce is emotionally stressful (although Collaborative Divorces are usually less stressful than litigated ones). It makes sense that getting out of the stressful situation may be a priority.
• At some point, almost everyone is ready to get out of a difficult or uncomfortable situation just to get out of limbo.  The uncertainty of a continuing divorce can be draining.

2.  Both parties need to recognize that a divorce process, even Collaborative Divorce, takes time. It cannot and generally should not be a speedy process because people need to be thoughtful about such important issues for their lives.

3.  Each party should accept that their spouse may need time to adjust or prepare. Be kind and be patient and you will be rewarded.

4.  Be sure there is time for each party to be heard. Sometimes just having an opportunity to speak up and explain things can be very beneficial. In Collaborative Divorces, we work on improving communication between and parties. A big part of that is learning to be a good listener.

5.  Finally, both parties need to recognize that their assumptions about how fast the process should work may be wrong. Each case is different and each person is different, so timing will vary from case to case.

Having experienced Collaborative professionals involved in the case should ease some of the stress, including the speed stress. You should have a good discussion with your attorney about your needs, your assumptions and your spouse's position on the speed of the case.  Together you should figure out how to balance the desires for a quicker or slower process so that neither party is over-stressed.

The overall best advice on the topic:  Be Patient!

How to Choose a Good Collaborative Attorney for You

Once you have researched or gotten some suggestions for a possible Collaborative attorney for your divorce (or other legal issue), you need to meet with the candidate or candidates and decide which is the right one for you.

When you make an appointment to meet with the attorneys, you should plan ahead  what you want to discuss and what you are looking for. Here are some suggestions.

1.  Ask about their experience.  How long have they been doing Collaborative cases?

• When did they start doing Collaborative cases?
• Why do they like Collaborative Law?
• How many Collaborative cases have they had?
• How much training have they attended?
• How they spoken at seminars or Collaborative meetings?
• Are they active in Collaborative Law organizations?
• Have they handled cases like yours in the Collaborative process?

If they have not handled many cases or been to much training, they may try to talk you out of using Collaborative Law. That's usually a sign that they are not sincere about using Collaborative Law. Try someone else.

2.  Ask about their view on Collaborative Law.  If they claim to use Collaborative but don't believe your case would be appropriate, get a second opinion. Unfortunately, some attorneys say they do Collaborative Law, but haven't been trained. Those attorneys try to draw in business and then switch clients to litigation. If an attorney says Collaborative Law is his or her first preference, that is probably a good choice.

3.  Talk about the cost for attorneys and the process.  Collaborative cases can actually save you some money, compared to costs for litigation with big fights. Having a child specialist do the preliminary work with the parents on a parenting plan is much cheaper and a better result than having two attorneys working on it simultaneously. Likewise, delegating the preliminary financial work to a single financial professional produces a better product at a smaller cost than a litigation  approach with formal discovery.

4.  Keep in mind that neither process is "cheap".  If you have significant issues, there is no bargain rate possible in any legal process.  Still, you can reduce the costs somewhat by working together as a Collaborative team.

5.  Your most important consideration:  Chemistry.

• Make sure you feel comfortable with your attorney.
• You need someone who listens to you well.
• The attorney should be able to communicate well and explain things to you.

Pay attention to your gut feeling about working with the attorney.

How to Find Information on Collaborative Attorneys

Getting Started
If you are facing divorce and either you or your spouse became interested in the Collaborative divorce process, one of your first tasks is to find a Collaborative attorney to represent and assist you.

Where to Find Names
Typically, your introduction comes from researching the Internet, receiving a referral from a friend or trusted professional or from a list of suggested names of nearby Collaborative attorneys. That can come from your spouse who may have met with a Collaborative attorney or from an attorney suggesting the names.

Get Local Information
It is getting easier to find information online about the process and about Collaborative lawyers in your area.  Make sure your searches are limited to your area. California and Texas Collaborative practitioners have some differences in how they handle cases. Be sure when you do online searches that you add in your state and city or county so you can get information and referrals that fit your situation.

What if You Get a List of Names
If your spouse goes first to see a Collaborative attorney, he or she may leave with a list of trained and active Collaborative attorneys who could be good attorneys for you to choose from.

• That's a good thing. It does not mean that the attorneys would work against you because they are friends with the first attorney. 
• The list is probably good attorneys who have a history of working well with the first attorney. That's good for you because it improves your chances of getting your case peacefully settled.
• Many times, lawyers are members of a "practice group" of attorneys and other professionals who are well trained, experienced and dedicated to helping clients divorce peacefully while protecting their rights.

Can You Use Someone Not on a List?

Of course, but you want to make sure they are trained and they would be a good fit for you.

The Next Step

When you have some attorneys' names, do some research online and learn something about each one. Then you need to meet them.

For tips on choosing a good Collaborative lawyer, please see my next blog post for February 1, 2020.

Are You Ready for Divorce?

Everyone has to decide on his or her own whether they are ready for divorce -- unless their spouse takes the first step and files. In that case, there must be a response.

But, let's talk about the situation where you are trying to decide whether to file for divorce.  How do you really decide?

First, you should think it through and not just react on impulse.  There are good reasons to file, in some cases. But there are also bad reasons to file.You need to keep things in perspective. Maybe you're mad or disappointed about something. You have to decide if it is the last straw or if it's something that's not such a big deal on second thought. Unless it's a safety issue, let a little time pass before you commit to filing. Think it over.

Second, talk with a counselor. You may need an outside perspective. A good counselor can help you think about things in different ways and put them in context. Maybe you have been in denial and you should file. Maybe an event was not so terrible once things calmed down. A counselor may be able to help you figure out other ways, short of divorce, to deal with the situation.

Third, consider talking with trusted friends or family members.  Another point of view from someone who knows and cares about you can be very helpful.  They may help you solidify your resolution to act or not act. Sharing the emotional load will also help with your stress level.

Here are some Cons to consider when trying to decide whether to divorce:

1.  Divorce will disrupt family relationships. That may seem obvious, but keep in mind that relations with many other people will be affected and you may lose out on friendships with members of your spouse's family.  If there are children involved, their lives will be changed in many ways. Transitions are often difficult after divorce.

2.  Financial difficulties are common. It's difficult to run two households on the funds that had been used to pay the bills for just one. It has to be done, but there are normally cutbacks. You may have a hard time until the finances are figured out.

3.  You need to be emotionally ready.  Try to think and plan for the changes ahead. You will probably be lonely, mad and worried at different times. You will have a lot of adjustments to make.

Here are some Pros for filing.

1.  You may be  leaving an unpleasant or unsafe relationship. It may be hard to take the step, but it will be worth it in most cases. You need to protect yourself and your children.

2.  You may have just drifted apart. You may be leaving a relationship where you don't hate or dislike each other. With a divorce, you will both be better off and have a chance for a better relationship.

3.  If your spouse has started a new relationship, you need to move on, too.  You have to face facts. There's very little chance of reconciliation when a new significant other is in place.

What's the best thing you can do to help decide whether to file for divorce? 

Go see an experienced family law attorney.  Together, you should be able to come to a decision.

By the way, a good attorney will sometimes advise you to wait a while before filing. 

So, think it over. Talk it over. Take some time, if you can. Consider the advantages and disadvantages to you. Then make your decision and stay with it. If you want to stay together, you should get counseling since you have been this close to divorce.

Good Luck!

Proceed With Caution

Sometimes people going through a Collaborative divorce will start to discuss things and negotiate directly with their spouse outside of Collaborative meetings.

Usually, if the topic is something like what time to pick up or return the kids on a special occasion, that's appropriate and it may be necessary.

On the other hand, some people may begin pushing their spouse to negotiate directly, without the attorneys or other professionals, and that can cause problems.  Realistically, the parties are in the Collaborative process because they can't just sit at a kitchen table and work things out.

In spite of past differences, people sometimes drift into direct negotiations. It could be to save money, save time or because things are just going very well at the moment. Other times, it may be a result of a conscious or unconscious desire to control or dominate the partner.

There are several reasons to Proceed with Caution: 

• Things could go badly and damage to the negotiations can occur. The good relationship could quickly disappear.
• Someone might be pushed into a bad decision without the advice of counsel.
• One or both parties may be overlooking legal concerns or options that are available.
• One or both parties may be acting on a mistaken idea of the law.
• Money may be spent or assets disposed of which could disadvantage one or both of the parties.

Keep in mind that the Collaborative attorneys and other professionals have a more objective viewpoint than you and your spouse do. The attorneys and professionals also have knowledge of the law and usually the experience of having handled at least hundreds of cases.

For the best outcome, please be patient and stay in communication with your attorney before you start negotiating on your own.