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.
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.
Categories: Blog
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.
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.
Categories: Blog
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.
Categories: Blog
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:
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.
Categories: Blog
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.
Categories: Blog
7 Ways Collaborative Law Helps Kids
Collaborative Law is presented as being a kinder and gentler way to get divorced or resolve other family legal matters. Attorneys like being able to help people through family transitions in a more positive and productive manner. Clients who have used Collaborative Law almost always sing its praises for helping to create better solutions and allowing them to control the outcome. In addition to all those factors, Collaborative Law also helps children in a number of ways that don't get mentioned as much, but which are, in reality, very important and beneficial. Consider the following 7 ways that Collaborative Law especially helps children.
1. Collaborative Law teaches parents better communication skills. Most parents don't naturally use "I" statements. In Collaborative cases, the parents are taught to make careful word choices before speaking. They learn to avoid saying "you" and instead to make statements about themselves ("I felt angry/confused when Mike didn't get home on time", instead of "You made me mad when you didn't bring Mike home on time.") Such subtle differences from word choice can make a huge difference. There is also a great emphasis on listening skills and being respectful to the other spouse. Actually, a lot of the communication skills would be great things to learn during a marriage.
2. Parents model good behavior. Even with the divorce going on, parents are able to function well and minimize fighting. By having a series of civilized negotiating meetings, the parties show their children that the parents can still act like adults, even when they disagree on some vital topics. Children learn from their parents they don't have to lose their temper or throw a fit to get their way; they learn how to disagree nicely.
3. Parents can improve their parenting skills. In many cases involving children, a neutral child expert is brought in help the parties be aware of a wide range of possibilities. The parents can polish up their skills or learn new ways to work with children. The child expert can help the parties come up with new solutions consistent their underlying goals and needs.
4. Brainstorming leads to better decisions and plans. Spending time generating multiple possible solutions can lead to completely new ideas or lead to creative possibilities. Even silly ideas may change into great ideas with a small adjustment. Following the stage of generating multiple options, the parties spend time analyzing the effectiveness and practicality of each option, instead of shooting them down as they are originally brought up. Eventually, what's left is one or more great ideas that will work to help the parties meet their needs.
5. Parents get along better, which reduces long-term stress on children. It is undisputable that divorce is often very stressful on the children. When the parents get along with each other and cooperate in finding solutions, the children do not get as upset as they do in confrontational divorces. And that's not even mentioning how bad it gets when children are put in the middle of custody or visitation fights.
6. Kids can maintain good relationships with both parents and don't have to choose sides. Children benefit from having close, loving relationships with both parents. Usually, each parent brings some unique value to the children, so the children really lose out if one parent becomes distant or uninvolved because that parent can't get along with the other parent.
7. Collaborative Law is a better use of the money for the family. The parents don't waste their resources. They cooperate and share information with each other instead of going through a largely wasteful "Discovery" process used in litigation. They use one neutral expert to handle specific tasks, instead of having two -- one for each side -- in litigation. They also skip expensive and unnecessary actions, such as ordering a Social Study, psychological evaluations and bringing in battling experts to testify.
Collaborative Law clearly is beneficial for parents and children. The benefits for children have been under-publicized, but, in the long run, may be the most important value of the process.
1. Collaborative Law teaches parents better communication skills. Most parents don't naturally use "I" statements. In Collaborative cases, the parents are taught to make careful word choices before speaking. They learn to avoid saying "you" and instead to make statements about themselves ("I felt angry/confused when Mike didn't get home on time", instead of "You made me mad when you didn't bring Mike home on time.") Such subtle differences from word choice can make a huge difference. There is also a great emphasis on listening skills and being respectful to the other spouse. Actually, a lot of the communication skills would be great things to learn during a marriage.
2. Parents model good behavior. Even with the divorce going on, parents are able to function well and minimize fighting. By having a series of civilized negotiating meetings, the parties show their children that the parents can still act like adults, even when they disagree on some vital topics. Children learn from their parents they don't have to lose their temper or throw a fit to get their way; they learn how to disagree nicely.
3. Parents can improve their parenting skills. In many cases involving children, a neutral child expert is brought in help the parties be aware of a wide range of possibilities. The parents can polish up their skills or learn new ways to work with children. The child expert can help the parties come up with new solutions consistent their underlying goals and needs.
4. Brainstorming leads to better decisions and plans. Spending time generating multiple possible solutions can lead to completely new ideas or lead to creative possibilities. Even silly ideas may change into great ideas with a small adjustment. Following the stage of generating multiple options, the parties spend time analyzing the effectiveness and practicality of each option, instead of shooting them down as they are originally brought up. Eventually, what's left is one or more great ideas that will work to help the parties meet their needs.
5. Parents get along better, which reduces long-term stress on children. It is undisputable that divorce is often very stressful on the children. When the parents get along with each other and cooperate in finding solutions, the children do not get as upset as they do in confrontational divorces. And that's not even mentioning how bad it gets when children are put in the middle of custody or visitation fights.
6. Kids can maintain good relationships with both parents and don't have to choose sides. Children benefit from having close, loving relationships with both parents. Usually, each parent brings some unique value to the children, so the children really lose out if one parent becomes distant or uninvolved because that parent can't get along with the other parent.
7. Collaborative Law is a better use of the money for the family. The parents don't waste their resources. They cooperate and share information with each other instead of going through a largely wasteful "Discovery" process used in litigation. They use one neutral expert to handle specific tasks, instead of having two -- one for each side -- in litigation. They also skip expensive and unnecessary actions, such as ordering a Social Study, psychological evaluations and bringing in battling experts to testify.
Collaborative Law clearly is beneficial for parents and children. The benefits for children have been under-publicized, but, in the long run, may be the most important value of the process.
Categories: Blog
How to Set Goals for Collaborative Cases
At the first of the year, many people spend time coming up with their New Year's Resolutions (lose weight, make more money, spend more time with the kids, etc.). They are setting goals for themselves for the upcoming year. If done with sufficient thoughtfulness, the effort can be really beneficial. Weighing different choices, looking at the pros and cons, and making commitments to action are all important steps that theoretically can lead to a better life, if the resolutions are truly incorporated into your life. The Resolutions provide guidance and reinforcement your actions in trying to attain goals.
Collaborative Law also relies on goals to set the agenda for the process. Usually at the first joint meeting, the attorneys and any other professionals in the case help both parties clearly define their most important broad goals for their life. They usually will consider both short-term and long-term goals. This is one of the most important steps in the process because it determines what the issues are and what the parties want and need to achieve.
Although we are all used to setting goals in some fashion, whether it be New Year's Resolutions or career goals or personal fitness goals or some other type, the parties to a family law matter often have trouble coming up with and defining the goals for their lives. To provide some guidance in the Collaborative Law context, here are some tips for setting goals:
1. Talk about broad, high-level goals that can encompass a number of actions. A good goal would be to ensure that the children have the financial ability to graduate from college, which opens up a discussion about various means of accomplishing it. A not-so-broad goal would be to have the father pay for college tuition for the kids. It sounds similar, but it really limits the options, and unnecessarily so. There could be other sources of funds and there may be other expenses to pay to enable a child to go to college. The broader statement of the goal provides a better opportunity to find solutions that are acceptable to both parties and benefit the child.
2. Make the goals clearly defined so that they are meaningful. For example, wanting to have adequate funds to pay for graduate school for one of the spouses is much easier to deal with than to want to have more time with the children or have a happier life. The last two are very broad goals, but aren't really very clear. The graduate school goal is not so narrow that it limits the options, but it also has enough detail that it can be understood and the parties can brainstorm solutions to provide adequate funding.
3. Make the goals achievable. The goals should be realistic, although not necessarily easy to accomplish. If you have a 16-year-old child, recognize that the child has a mind of her own and you may not be able to impose your will on her. Instead of having, as a goal, that the child would spend every other weekend with you, you might suggest working out a cooperative arrangement for parent and child to have a mutually acceptable schedule together. If there's not enough money already in a retirement account, you may not be able to provide adequate funds for retirement from that account in a short time period, but you might be able to discover other ways to deal with the retirement situation, so your goal could be something like providing the best use of the existing retirement assets to set up the maximum level of retirement account growth that would be safely possible.
4. Don't confuse the means or method for a goal. If you want to improve your relationship with a child, there are a number of ways to do so. Have regular visits at times when the child is willing and able to spend time. (For a younger child, you might get a standardized or regular schedule. For an older child, you may need to carve out shorter periods of time that don't interfere with school, studying, dates, sports, computer games with friends, etc.) Those are all means of accomplishing the goal of maintaining or improving a close relationship with a child.
5. Set important goals. Think about the things that are the most important to you or that would affect your health, safety or financial well-being. Deal with those topics and develop goals for them. Don't waste your time on unimportant or hypothetical or irrelevant goals. Don't let others tell you what "should" be your goals. Don't waste your time on impossible goals, although challenging yourself to stretch a little is appropriate and beneficial.
Following these steps will help you formulate meaningful goals which will help you successfully navigate the Collaborative process. (BTW: If your lawyer is a member of the Collaborative Law Institute of Texas, he or she should be able to give you a workbook that will also help you come up with your goals.) Good luck!
Collaborative Law also relies on goals to set the agenda for the process. Usually at the first joint meeting, the attorneys and any other professionals in the case help both parties clearly define their most important broad goals for their life. They usually will consider both short-term and long-term goals. This is one of the most important steps in the process because it determines what the issues are and what the parties want and need to achieve.
Although we are all used to setting goals in some fashion, whether it be New Year's Resolutions or career goals or personal fitness goals or some other type, the parties to a family law matter often have trouble coming up with and defining the goals for their lives. To provide some guidance in the Collaborative Law context, here are some tips for setting goals:
1. Talk about broad, high-level goals that can encompass a number of actions. A good goal would be to ensure that the children have the financial ability to graduate from college, which opens up a discussion about various means of accomplishing it. A not-so-broad goal would be to have the father pay for college tuition for the kids. It sounds similar, but it really limits the options, and unnecessarily so. There could be other sources of funds and there may be other expenses to pay to enable a child to go to college. The broader statement of the goal provides a better opportunity to find solutions that are acceptable to both parties and benefit the child.
2. Make the goals clearly defined so that they are meaningful. For example, wanting to have adequate funds to pay for graduate school for one of the spouses is much easier to deal with than to want to have more time with the children or have a happier life. The last two are very broad goals, but aren't really very clear. The graduate school goal is not so narrow that it limits the options, but it also has enough detail that it can be understood and the parties can brainstorm solutions to provide adequate funding.
3. Make the goals achievable. The goals should be realistic, although not necessarily easy to accomplish. If you have a 16-year-old child, recognize that the child has a mind of her own and you may not be able to impose your will on her. Instead of having, as a goal, that the child would spend every other weekend with you, you might suggest working out a cooperative arrangement for parent and child to have a mutually acceptable schedule together. If there's not enough money already in a retirement account, you may not be able to provide adequate funds for retirement from that account in a short time period, but you might be able to discover other ways to deal with the retirement situation, so your goal could be something like providing the best use of the existing retirement assets to set up the maximum level of retirement account growth that would be safely possible.
4. Don't confuse the means or method for a goal. If you want to improve your relationship with a child, there are a number of ways to do so. Have regular visits at times when the child is willing and able to spend time. (For a younger child, you might get a standardized or regular schedule. For an older child, you may need to carve out shorter periods of time that don't interfere with school, studying, dates, sports, computer games with friends, etc.) Those are all means of accomplishing the goal of maintaining or improving a close relationship with a child.
5. Set important goals. Think about the things that are the most important to you or that would affect your health, safety or financial well-being. Deal with those topics and develop goals for them. Don't waste your time on unimportant or hypothetical or irrelevant goals. Don't let others tell you what "should" be your goals. Don't waste your time on impossible goals, although challenging yourself to stretch a little is appropriate and beneficial.
Following these steps will help you formulate meaningful goals which will help you successfully navigate the Collaborative process. (BTW: If your lawyer is a member of the Collaborative Law Institute of Texas, he or she should be able to give you a workbook that will also help you come up with your goals.) Good luck!
Categories: Blog
Alimony is Not a 4-Letter Word
Often, one of the most emotional topics in a Collaborative case is alimony. One side often feels like she or he is entitled to it for a number of reasons, including the following, among others: because of having a long-term marriage, or because of health problems, or because of bleak job prospects, or because her or his spouse had been cheating on her or him, or because she or he supported the spouse through school and then the spouse wants a divorce just as the high income is about to start. Most often, alimony is sought by the wife, but there are occasional situations where the wife is the one better off financially and husband needs or wants alimony.
As strongly and emotionally as one spouse feels entitled to alimony, the other often resists alimony.
One of the advantages of using Collaborative Law is that we view alimony differently. We remove the sense of entitlement or revenge and we remove the stigma some may feel in paying it. We recognize that it is just a tool in helping one or both parties achieve their goals and meet their needs. Actually, it can be a tax planning tool because it is a deduction to the paying party.
If both parties will move beyond their initial feelings about the subject, they will discover that they can both benefit from using alimony. One way this can become crystal clear is to utilize a divorce financial planner who can explain the law and quantify the benefits to both parties. Using a trained financial planner in the case will normally benefit both parties. The planner will help the parties prepare personal budgets and project their needs and financial abilities well into the future. The planner may recommend using or not using alimony in a given case.
While alimony may not be needed or appropriate in all cases, the parties should remain open minded about it as a tool to help them reach their goals and achieve a complete resolution to their divorce.
Categories: Blog
Can We Start in Litigation and Switch to Collaborative Law?
Occasionally, I will have a client or attorney ask me if we can start out a divorce case in litigation, have a temporary hearing and then switch over to Collaborative Law. This usually comes up where one party really wants to use Collaborative Law and the other isn't really sold on it. The "unsold" one will sometimes propose a compromise of using the process, but only after a temporary hearing, where that party expects to get his or her way at the expense of the other party.
I would say that there is nothing in the Texas law that forbids that change in approaches(though some Collaborative lawyers won't even consider doing it), but that I would advise against it. I haven't ever done a case that way and I don't think I would want to. Here are some some problems I would foresee:
1. The parties may like the peaceful approach of the Collaborative Law process, but there's a reduced chance of success because of a lack of a full commitment by at least one of the parties.
2. Taking this approach, the parties would give up the following advantages of the Collaborative process:
Control-- At a temporary hearing, control is given over to the Judge or the "standard" solutions. The parties are not fully able to negotiate equally.
Privacy--Court papers are public records and if there is an actual hearing, it is in open court.
Creativity--Temporary hearings normally involve reliance on standard solutions and orders instead of spending hours developing unique orders to meet the specific circumstances of the case.
Preserving important relationships--At a hearing or even in negotiations, parties can easily become angry about what is said and done.
Encouraging full input by both parties--Temporary hearings discourage full input by both parties. Judges and attorneys in temporary orders hearings or discussions mostly rely on the standard answers and pay little attention to the unique aspects of a case or the non-standard approaches that may be proposed by a party.
Interest-based negotiating--Temporary hearings generally involve positional bargaining and usually have very little to do with the parties' real needs or any unusual requests.
Protection from an overbearing or controling spouse--The parties most likely are at court because one party senses she or he has an advantage and wants to capitalize on it. Threats and demands are easily made in negotiations and there is neither a framework nor trained professionals to end and deal with such behavior, as would have been the case with the Collaborative approach.
3. Obviously, at least one party is not truly committed to Collaborative Law problem-solving or decision-making because they want to rely on arbitrary, standard solutions. Without the full commitment to Collaborative Law, there is little chance of success. If both parties understood and were committed to Collaborative Law, they would have been using it.
Caveat: I view the situation differently if both parties start out in litigation without an expectation of using Collaborative Law and then later both decide they want to try Collaborative because one or both may have changed attorneys or maybe they are tired of fighting. If they are both fully informed and committed to using the Collaborative process, I would consider making the change. Nothing in the law would prohibit it. I view that as a fundamentally different situation from one where a party obviously wants to gain the upper hand through litigation before agreeing to Collaborate on the remaining issues. This is something I would consider on a case-by-case basis.
If you are interested in using Collaborative Law at any step of your family law case process, I recommend that you immediately get in touch with your attorney and discuss whether it is advisable. Make sure you are dealing with an attorney who is at least fully trained (at least a 2 day training program) and preferably one who is experienced in Collaborative Law.
I would say that there is nothing in the Texas law that forbids that change in approaches(though some Collaborative lawyers won't even consider doing it), but that I would advise against it. I haven't ever done a case that way and I don't think I would want to. Here are some some problems I would foresee:
1. The parties may like the peaceful approach of the Collaborative Law process, but there's a reduced chance of success because of a lack of a full commitment by at least one of the parties.
2. Taking this approach, the parties would give up the following advantages of the Collaborative process:
Control-- At a temporary hearing, control is given over to the Judge or the "standard" solutions. The parties are not fully able to negotiate equally.
Privacy--Court papers are public records and if there is an actual hearing, it is in open court.
Creativity--Temporary hearings normally involve reliance on standard solutions and orders instead of spending hours developing unique orders to meet the specific circumstances of the case.
Preserving important relationships--At a hearing or even in negotiations, parties can easily become angry about what is said and done.
Encouraging full input by both parties--Temporary hearings discourage full input by both parties. Judges and attorneys in temporary orders hearings or discussions mostly rely on the standard answers and pay little attention to the unique aspects of a case or the non-standard approaches that may be proposed by a party.
Interest-based negotiating--Temporary hearings generally involve positional bargaining and usually have very little to do with the parties' real needs or any unusual requests.
Protection from an overbearing or controling spouse--The parties most likely are at court because one party senses she or he has an advantage and wants to capitalize on it. Threats and demands are easily made in negotiations and there is neither a framework nor trained professionals to end and deal with such behavior, as would have been the case with the Collaborative approach.
3. Obviously, at least one party is not truly committed to Collaborative Law problem-solving or decision-making because they want to rely on arbitrary, standard solutions. Without the full commitment to Collaborative Law, there is little chance of success. If both parties understood and were committed to Collaborative Law, they would have been using it.
Caveat: I view the situation differently if both parties start out in litigation without an expectation of using Collaborative Law and then later both decide they want to try Collaborative because one or both may have changed attorneys or maybe they are tired of fighting. If they are both fully informed and committed to using the Collaborative process, I would consider making the change. Nothing in the law would prohibit it. I view that as a fundamentally different situation from one where a party obviously wants to gain the upper hand through litigation before agreeing to Collaborate on the remaining issues. This is something I would consider on a case-by-case basis.
If you are interested in using Collaborative Law at any step of your family law case process, I recommend that you immediately get in touch with your attorney and discuss whether it is advisable. Make sure you are dealing with an attorney who is at least fully trained (at least a 2 day training program) and preferably one who is experienced in Collaborative Law.
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