Fewer, but Friendlier, Divorces

A story in the Kansas City Star on November 21 provided some surprising news about the state of divorce in the U.S. The common perception is that the divorce rate is rising and that fewer than half of marriages survive. That apparently is changing. From 1979 to 2005, the rate of divorce dropped from 22.8 to 16.7 per 1,000 married couples. About 53% of the couples who married from 1975 to 1979 had marriages that lasted at least 25 years, which was an improvement over previous times.

The article pointed out that not only is the divorce rate falling, but fewer people are going to court to resolve their marital issues. All over the country, people are turning to new alternatives to trials. Mediation, which began to become popular here in Texas in the mid- to late-1980s, continues to grow. There are more and more quality mediators available to work in Family Law cases and other matters. In addition, arbitration is becoming a little more common, but it is still not very well known.

One of the best innovations that is making a dent in the trial statistics is Collaborative Law. Across the country, more cases are successfully using Collaborative Law to resolve all kinds of Family Law matters and some other matters, such as probate, employment claims and contract disputes, all without going to court.

Having the choices available makes it much easier to work out solutions without going to trial. While Collaborative Law is often the best alternative, there are situations where it may not work well. In those cases, mediation or arbitration can be extremely helpful. Parties considering divorce should visit with one or more attorneys and find out all their options before they get started. For advice on Collaborative Law, make sure you visit with a lawyer who is trained in Collaborative Law.

What Not to Expect in a Collaborative Case -- Part 2

A week ago, I had a post about false assumptions about how Collaborative Law works. The mistaken ideas should be avoided because they can create enormous problems for Collaborative cases.

Here are a few more expectations to avoid:

1. We will base our agreements on standard guidelines. The lazy, uncreative approach is to open the Family Code and use child support guidelines or standardized possession schedules for the children. Such approaches also are likely to not achieve the parties' goals. Guidelines are really limiting crutches that inhibit creative thinking and problem-solving. It is much better to create a customized plan dealing with each issue.

2. The process is easy. For being a more civilized and respectful process, there can still be a great deal of stress. Although this is a great decision-making model, there are still some very tough decisions to be made. Parties may not need to fear being torn apart in court, but there is a different type of pressure they feel in a Collaborative case. That is a big part of why we generally limit joint meetings to 1 1/2 to 2 hours. The process can be invigorating, and is certainly better than litigation, but the difficulty should not be underestimated.

3. There is no active role for the attorneys. While the attorneys' roles are different than in litigated cases, and there is a great emphasis in the parties speaking up and discussing options and then making decisions, the attorneys are necessary for the process. Attorneys provide legal analysis and framework for the parties. They also provide the paperwork. In addition, experienced Collaborative attorneys will help discussions move smoothly and effectively. Lawyers are also important for discussing issues with the parties and with the other professionals before and after joint meetings. Attorneys are active, but in non-traditional ways that may not be as dramatic as making closing arguments or cross-examining in trial. Nevertheless, Collaborative Law is a process that heavily depends on having trained lawyers involved throughout the process.

4. You will be at the mercy of a controlling (oppressive) (choose your adjective) other party in joint meetings. That concern is one of the primary reasons why neutral mental health professionals have become so valuable in Texas Collaborative Law cases. Their roles include helping both parties to: communicate effectively; avoid creating problems by how they act and what they say; and feel safe in the process. Not only are (both) the attorneys actively watching for problems and intervening as necessary, but they usually meet with their clients before and after joint meetings to review what is being covered. There are actually several layers of protection provided.

5. Your attorney and the other professionals don't need specialized training. Some attorneys will try to handle a Collaborative case without going through at least a two-day basic training course. Some can do an adequate job because they may have a lot of experience as mediators, but there are often problems. Some of the problems relate to differing expectations between the attorneys. The untrained attorney may not be as familiar with the Collaborative problem-solving process and may not realize what he/she needs to do to prepare their party for meetings. Attorneys must undergo an incredible shift in their minds about how to handle a Collaborative case and how to act, so it really does require some specific training. The same is true for the mental health and financial professionals often brought into a case.Fortunately, there are more and more attorneys and other professionals being trained in Collaborative Law.

These tips should respond to the concerns that are sometimes felt by people considering the Collaborative approach. The best way to deal with these and other assumptions is to fully discuss them with your attorney. A well-trained and experienced Collaborative attorney can not only answer your questions, but can discuss your circumstances to clarify how Collaborative Law may work for you.

What Not to Expect in a Collaborative Case -- Part 1

Some people come into the Collaborative process with misconceptions that can hinder the effectiveness of the process and the client's satisfaction. Sometimes parties have had experience in the litigation or mediation approaches and make assumptions that Collaborative may operate in some similar ways. If the mistaken ideas aren't corrected right away, they can lead to serious problems in the case.

This post will discuss five common, but mistaken, expectations. Don't assume any of the following:

1. There will be a quick resolution. There are no shortcuts in Collaborative Law cases. The process is important and should be followed. The goals must be established. Information must be gathered, exchanged and analyzed. Brainstorming for solutions should take place, followed by evaluation of the ideas. Finally, negotiations should lead to agreements. The process works well and each step is necessary, so it will take some time.

2. The process is cheap. While there are some savings because a lot of time for court hearings and formal discovery is avoided, there is still a great deal of work to be done. Generally, complex and difficult cases, which are appropriate for Collaborative Law, will take time and effort to resolve, so there will be major costs for attorneys and other professionals. Again, Collaborative Law generally eliminates the litigation-style dueling experts by having neutral experts working for both parties, so that saves money, but the nature of the cases usually means that the fees will still be expensive.

3. Someone will speak for you. This is not a process where you can just sit back and watch. The parties are the focus of the whole procedure. In contrast to litigation, there is regular, direct discussion between the parties and both attorneys, with the load being carried by the clients. If you are not comfortable in speaking out at a joint meeting, you should discuss the situation with your attorney and the mental health professional (if you have one for the process).

4. You will start making major decisions in the first joint meeting. Some people get in a hurry (see #1 above) and want to start deciding who gets what, who will have primary custody, etc. at the first meeting. Again the process is important and success depends on following the structure set out above for ultimately reaching agreements. It's just not possible to make informed, creative, workable, appropriate decisions on major issues at the first joint meeting.

5. Don't assume any outcomes at the beginning. You'll drive yourself and everyone else crazy if you start off by discussing various outcomes early in the process. Sometimes people begin the process with ideas fixed in their minds, such as that "custody" must be decided a certain way, or they must keep their retirement fund, or child support must be set a certain way, or they will never agree to pay alimony. Taking and holding to those types of positions is contrary to the commitment to consider a variety of options and choose the ones that best help the parties achieve their goals.

If everyone will avoid the false expectations above, the Collaborative Law process will be a lot more effective for all.

The ABA Seal of Approval

Because Collaborative Law is still a fairly new approach in the law, some attorneys haven't really warmed up to the concept of doing divorces and other family law cases a different, non-traditional, way. For various reasons, often because they don't like change, they have opposed the expansion of Collaborative Law, or at least haven't been trained and don't participate in it.

Some attorneys have expressed some vague ideas that there could be some ethical problems with Collaborative Law. In February 2007, a committee of the Colorado Bar Association gave an odd advisory opinion that attorneys there should not participate in Collaborative Law because it created a situation of divided loyalties, which was based on a unique Colorado rule.

That issue should be laid to rest now, however, because the American Bar Association Ethics Committee has issued an opinion supporting Collaborative Law as long as the parties involved are thoroughly aware of how the process works. Educating clients about the process is something that is a part of every Collaborative case. It involves letting the parties know the various options they have in how legal cases can be resolved. Before a Collaborative Law case begins, both parties must understand and commit to the process. If they choose not to take the Collaborative path, they are free to try litigation or another approach.

In Texas, we have the first Collaborative Law statute passed that is now in our Family Code. We are beyond the vague ethical issues because the statute in effect endorses the process. In practice, we have created a Texas model, or approach, for Collaborative Law that involves giving the parties full information about their options and letting them make informed decisions about how they wish to proceed.

At least five other states have ethics opinions supporting Collaborative Law. Colorado has been the only state that has published a critical ethics opinion and the A.B.A. should now have put the issue to rest. It's nice to have some additional confirmation that we are participating in a helpful process for people in a difficult time. For best results, clients should thoroughly discuss all questions and concerns with their attorneys before they start the process.

How to Negotiate Effectively

A recent post on Human Law Mediation had five great tips for more effective negotiating in mediation. While some of these tips could also improve your efforts in the Collaborative Law arena, the list highlights some of the differences in approach between Collaborative Law and mediation.

1. Plan and prepare in the right way. In the Collaborative context, this would include thinking ahead about what your goals are. How do you see yourself coming out of this process? Think about your major long-term goals as well as some important but short-term ones. Use neutral experts to help you decide what you should focus on. Gather and share all the information you have in your possession on any relevant issues. Thinking and planning ahead can help the process move more smoothly and be less stressful.

2. Listen more than you talk. One way to increase your chances of success is to spend more time listening to your spouse (or the other party). In relationships, it is not unusual for partners to develop patterns of communication where one party tends to be more verbal than the other. Even if you are the more silent one, you may be tuning out your partner rather than actively listening. Having a mental health specialist help with the communication issues can result in both parties listening more effectively.

3. Keep emotions in check. Having a mental health professional involved helps keep the emotions in perspective. While emotional reactions need to be dealt with, they do need to be controlled. You can do a much more effective job for yourself if you can avoid being too emotional. It helps to keep in mind what your overriding goals are.

4. Balance aggression against cooperation. In a Collaborative case, aggression is controlled and avoided. Cooperation is the approach that is acceptable. This illustrates a major difference between Collaborative Law and other types of negotiation.

5. (Generally) make the first offer. This tip relates to "positional" bargaining (often used in mediation), rather than "interest-based" bargaining (a fundamental part of Collaborative Law). In positional bargaining, one side stakes out a position and uses that to try to reach an anticipated result. Interest-based negotiations focus on the actual goals and needs expressed by the parties and the parties work to create solutions that help them achieve the goals for both parties. The thought is that someone can limit or expand the range of possible settlements by making the first offer.

Prenuptial Agreements

As couples start discussing marriage, prenuptial agreements are sometimes considered for various reasons. There can be a lot of value to be gained by using a prenuptial agreement, but it can also damage relationships if not approached in a sensitive manner. In the February 5, 2006 issue of the Chicago Tribune, Janet Kidd Stewart wrote about prenuptial agreements being used for older couples who get married.

There are a number of concerns that may surface when older couples are thinking about getting married:

• inheritances
• family peace
• creating joint wealth from shared efforts after marriage
• providing for health care
• estate planning
• debts, including medical bills.

Dealing with those issues can be very complicated because of other family members who may become involved. Older couples often have adult children and grandchildren who may become possessive and territorial about the parent's assets. This can lead to conflict and hard feelings between the children and their parent's new spouse, and sometimes between parent and child. Some adult children sincerely believe they need to protect their parent's property so it can benefit the parent, and perhaps rightfully so. Some older couples end up not marrying because of their (or their children's) fears about the financial side of the marriage.

Another option is to work out a prenuptial agreement by using Collaborative law. This is an appropriate use and natural fit because:

• it requires each party to have their own attorney,
• it's based on the goals and needs of the parties,
• it provides for complete disclosure of finances,
• a financial planner often works with the parties to provide expert tax and planning help, and
• the parties work together to reach mutual agreements without one party coercing the other.

One of the greatest benefits is that Collaborative Law forces both parties to articulate their goals and needs and to think in concrete terms about how they want their future to look. The prospective spouses can consider how to manage their investments, life insurance, and health insurance, as well as planning for long-term care for later in life. Using creativity to help them achieve their personal and family goals, couples can resolve financial issues early, keep the peace in their families and establish a firm foundation for personal and family financial security.

How to Avoid Financial Mistakes in Divorce

There was a nice story in Forbes in February 2005 entitled "Top Financial Divorce Mistakes". It listed 9 common mistakes and how to avoid them. The list is actually a good example of why Collaborative Law can really be beneficial. Here's the list with a commentary showing how Collaborative Law fits in.

1. Having unrealistic expectations. That's actually a very serious problem which can sabotage a Collaborative case (just like it does a regular litigated case). If both attorneys, and any other professionals involved, can spot such expectations at the outset, disaster can be avoided, if the party is willing to listen to reason. The case should not be handled Collaboratively if one or both parties have unreasonable goals. One of the good things about Collaborative Law is that the goals and expectations are explicitly discussed at the outset, so there is time for re-orientation or changing approaches. There is a greater chance of uncovering unrealistic thinking by using the Collaborative approach since the expectations are openly discussed at the outset.

2. Not communicating. It is impossible to not communicate with your attorney or spouse in Collaborative Law. There are discussions before and after joint meetings and many cases utilize a mental health professional (MHP) to facilitate communication.

3. Getting into an endless battle. Collaborative law focuses on the future and not on revisiting past battles and issues. An MHP can help both parties avoid re-engaging in old arguments and to stay on track focusing on their goals.

4. Getting hung up on the numbers. One of the key elements of Collaborative Law is interest-based negotiating, rather than positional bargaining that is common in the litigation approach. Parties in litigation often do get hung up on numbers and percentages. In Collaborative Law, the parties work to achieve their goals and strive to create customized solutions to problems where the numbers are secondary.

5. Focusing on the present and not on the future. Using a neutral financial professional (FP), it is possible to understand the present situation, but a sometimes greater benefit is being able to project out into the future, both in terms of your needs and in terms of various means of meeting those needs. The FP is an expert at analyzing the future needs of the parties and can help educate the parties about the opportunities available that are consistent with their goals.

6. Forgetting to assess tax. With a financial professional in the case, it is standard to consider the tax consequences of any alternatives under discussion, something that is not often done in litigated cases.

7. Overlooking important information. The financial professional will make sure the parties provide all necessary financial information and understand it. There is rarely such a person working in a litigated case. A Collaborative case using a neutral FP results in a better analysis of the parties' financial situation.

8. Failing to untangle all joint finances. The parties can have direct discussions to address issues of joint finances and will have the benefit of two attorneys, a financial professional and sometimes a mental health professional who will help them decide whether or not to keep financial ties intact.

9. Failing to take into account the amount of time you'll need to get your career back on track. That is a topic that would ordinarily be directly addressed by the parties, their attorneys, the financial professional and perhaps the mental health professional. In addition, the parties may set up a plan for training and support to cover the likely period of time for re-adjustment into the work force. With Collaborative Law and the team working together, there is a much greater chance of direct action being taken to benefit the spouse who has been out of the workforce.

The Forbes article pointed out some significant and fairly common problems that occur in litigated divorces. They illustrate some of the many reasons why Collaborative Law often is the better option for divorces.