Tuesday, September 1, 2015

What Happens Between Meetings?

As we start a Collaborative case, at the first meeting we typically schedule three or four meetings after the first one.  Those meetings will be an average of two or three weeks apart.  Some people, who may be in a hurry, want to meet every week or at least every other week so we can get it over with.  Unfortunately, that timing is unrealistic for reasons mentioned in my July 1 blog post.  In addition, there are good reasons why the sessions need to be spaced out.

1.  We need time to develop the parenting plan.  Usually, we have the clients meet, without the lawyers present, with the neutral Mental Health Professional (MHP) or the child specialist. It sometimes takes two or three meetings to get the details worked out.  Once the MHP and the parties put together a draft of a parenting plan, the MHP writes it up and then we all discuss it at a joint meeting.

2.  We need time to gather and organize the financial information.  The neutral Financial Professional (FP) identifies and requests the information needed  and then collects the information directly from the parties. This is just a reporting step and no plan is produced at that time for the property division.  The FP usually creates a spreadsheet with the financial details which is then reviewed at the next joint meeting.
3.  Professionals plan meetings. They communicate by email or conference calls to discuss on-going issues and to plan the agenda for each meeting.  They normally debrief after each meeting and often meet before each joint meeting so everyone knows what's going on.

4.  Attorneys meet or talk with their clients to prepare for meetings. We like to check in to find out if there are any new issues.  We also work on developing options that can be discussed at joint meetings.  In addition, we answer clients'  questions.

5.  Clients  do homework.  Ideally, the professionals are working less than he parties are.  It is important for the clients to gather information and to think about the issues before we go into joint meetings.  They can work with their attorney and the other neutrals, but each person will have to provide information and ideas in order for the process to work.

Because this is a creative process where we don't  necessarily follow standard guidelines or procedures, people using Collaborative Law have an active role in the process.  Important activities take place outside of the joint meetings.  With all that activity, we have to space out the meetings, but we are using the time constructively.

Saturday, August 1, 2015

Being Creative with Child Support

Using the Collaborative Law process, we feel impelled to be creative with solutions, even where there are standard guidelines in the Texas Family Code for such things as how to set child support. In most litigation cases, the child support amount is quickly set by following the standard formula.  The Code deals with the amounts of income and the number of children before the Court, as well as considering if there are other children that need to be supported.

There's nothing wrong with the guidelines, but they seem mechanical and may not fit some situations.  When we're in the Collaborative process,  we usually consider other approaches, although we sometimes go back to the guidelines.

For those looking to be a little more original and creative, here are some quick ideas to think about:

1.  Correlate the support to the amount of time each parent has the child.  One way to do it is to decide that the support paid by a parent is reduced in relation to the amount of time that parent has the child. That makes some sense because obviously the expenses for the child grow for a parent as the parent has more time with the child.

2.  Set up a fund to pay certain expenses.  If the parents expect the child to participate in expensive activities, such as select sports or high-level dance or music lessons, they may be able to set aside existing money in a savings account.  They can move funds into a designated account that would pay all or most of the expenses for certain activities.  That would eliminate the need to communicate and negotiate for payment of the extra expenses.

3.  A parent could agree to pay all or a part of expenses for the child within a specified range.  For example, a parent could pay up to $2,500.00 per year for all extracurricular expenses. Where one parent has more resources than the other, that's a good way to try to keep the child in a standard of living similar to how they were living before divorce.

4.  A parent could agree to pay all or part of all extracurricular activities, regardless of the amount.  For example, a parent could pay for all baseball or dance or music or cheerleading expenses.

5.  For special needs, the bills could be allocated between the parties.  If it's known in advance, the bills can be assigned.  Another way is for each parent to contribute specified amounts to a fund to pay the for special needs.

6.  The parties could read about how other states do their child support and may choose someone else's scheme or choose parts of other states' plans.  Texas doesn't have a monopoly on good ideas and there are some worthwhile plans around the country.

7.  The child support could be adjusted to consider the community and separate property and debts of the parties.  If someone has more assets, maybe they can afford to pay more support.

These are just a few ideas. There are lots of ways to meet the child's needs and minimize conflicts between the parents. Please share any good ideas you have for customizing child support in the Collaborative Law process.

Wednesday, July 1, 2015

Why Can't We Move Faster?

For many people, it seems like Collaborative cases should move very quickly.  These are generally parties who are emotionally ready for the divorce.  Most people go through several stages of emotions, when facing divorce -- anger, denial, bargaining and acceptance -- in various orders and degrees.  If they get a head start on their spouse and have reached a point where they are ready to be divorced, they often become impatient.  Then, they frequently have trouble putting up with a process that moves deliberately.

Here are some reasons why the Collaborative Law process may slow down.

1.  Collaborative cases can only go as fast as the slower party wants to go.  If one person isn't emotionally ready to be divorced, the process will have to move slowly.  We will follow the steps of the process, but it will be difficult to finish until both parties are ready.

2.  We need time between meetings.  We actually get a lot of work done between joint meetings.  Information is gathered and organized.  Parties and professionals have time to reflect on what's going on at meetings and to plan what to do at the future meetings.  The parties and attorneys meet or talk about the issues and consider different options. Getting work done between joint meetings saves time when we all get together.

3.  Scheduling is complicated.  With at least 6 people involved, it's hard to quickly have one meeting after another.

In the end, speed is a relative concept.  What seems fast to someone not ready for a divorce may seem very slow to someone ready to get married to a new spouse or to start over as a single person.  However, generally, a Collaborative divorce with issues to be decided can move much quicker than a contested divorce.  If someone is judging the Collaborative process against the minimum waiting period of 60 days in Texas, any time exceeding 60 days seems very slow.  Unfortunately, that's the wrong standard for comparison.  If you think the process is dragging, please discuss with your attorney how long your divorce might take if you were litigating it.  I'll bet you will feel better with Collaborative Law.

Monday, June 1, 2015

Dealing with a Spouse Coming Out

While it is still fairly uncommon, we are starting to see more situations where a couple has been married a long time and "suddenly" one spouse tells the other that he/she is gay. That will generally end a marriage.

The spouse coming out has usually thought about it for a long time and often tries to avoid or fight the realization that he/she is gay.  Many times, the other spouse is totally surprised, but sometimes the spouse may have had suspicions or there may have even been some discussions in the past.  Either way, this will be a very difficult time for both parties.  It becomes way more difficult if there are kids.  There are often feelings of anger, denial, disappointment and fear.

Because this is such an emotional time, counseling can be very helpful for both spouses and children, but the counseling would be to help the parties adjust, not to undo the change of circumstances.

Assuming there's no turning back, the parents will face divorce.  With that, they should consider the "how" -- which process they will use for the divorce.  Will it be litigation,  mediation, do-it-yourself or Collaborative Law? Given the name of this blog, it should be no surprise that I recommend Collaborative Law.  Here's why, based on my experience:

1. Privacy.  Many people would prefer to keep their personal business and finances private.  That would be true in many cases where a party is coming out, depending on how public they are willing to make things.  In Collaborative cases, the process is private from the beginning.  Litigation is not and litigation is often used prior to going to mediation.  The process of mediation is private, but it does not have all the attributes of Collaborative Law. (see below)

2. Flexibility.  Collaborative Law provides great flexibility in timing and outcome.  You can work at your own speed (whatever both parties agree to) and there are very few limits on the terms of your agreement, as long as it is clear and enforceable.  In litigation or do-it-yourself, and sometimes in mediation, your schedule is at the mercy of the Court.  In litigation or do-it-yourself, the results tend to be according to guidelines and standard outcomes, rather than customized.

3. Utilization of a team of professionals.  This is only the case in Collaborative Law.  We normally use a team of two attorneys, a neutral therapist and a neutral financial advisor.  The therapist helps the parties to listen and communicate better and to deal with basic children's issues, if any.  The financial advisor gathers, organizes, reviews and explains all the financial information. You won't find that in any of the other processes.  In many cases, one parent has little knowledge of the finances while the other has had less involvement with the children.  The experts help level the playing field.

4. Civilized and less stressful.  For everyone going through a divorce, the future is uncertain.  The process of divorce takes an emotional toll on the parties.   Having specially trained attorneys, plus the neutral experts, creates a safer environment.  We plan and manage the meetings to reduce stress for the parties.  It is much easier to attend small meetings than it is to show up at the courthouse and possibly have to testify.

5. No duplicate experts.  We utilize a single, neutral expert for jobs such as real estate appraisal, business appraisal or tax considerations.  We can also use a child specialist if there are significant children's issues.  In litigated cases, it is common for each side to hire their own set of experts, which doubles the cost for the clients.

If you are facing a divorce after either you or your spouse has come out, you should find an experienced Collaborative Lawyer and discuss your situation to see if the process would be the best option for you.  Make sure the lawyer has handled a number of Collaborative cases and believes in the process.  Most Collaborative attorneys can handle litigation if you prefer that process, but not all litigation attorneys can do Collaborative work.  Good luck!

Friday, May 1, 2015

It's Not a 50-50 World!

While many people expect property and debts to be divided 50-50 on divorce, that rarely happens.  There are several reasons for that.

First, Texas law does not mandate, or even suggest, an equal division.  Texas law requires that property division be "just and right".  That leaves a lot of wiggle room.

Sometimes, there are great disparities of income between the parties.  In many cases, one party has been out of the workforce, taking care of the home, while the other spouse made a good living.  When a person rejoins the work force later in life, it can be tough to get a job at all, much less a good-paying one.  Even when both parties have been working during the marriage, disparities in income are still common.

There can also be health differences which affect both income and expenses.  If a party can't work or can do certain things, obviously their income will suffer.  In addition, one party may have chronic health issues that lead to much higher expenditures. Either way, it makes sense to help out the party with a greater need.

In some cases, one party may have significant separate property income or just plenty of separate property assets while the other party has little or none.  The party with more separate assets often just doesn't need the community assets as much as the party without separate assets.

In each of those situations, it makes sense to provide a little more help to the disadvantaged party.  

Both parties need to adjust their expectations when dividing property and debts.  There are rarely equal divisions in divorces.  Instead, it makes sense to focus on actual needs and abilities of each party.

Before you get started on your divorce, it's a good idea to discuss approaches to property division with your lawyer.  Don't proceed based on your assumptions about the law.

Sunday, March 1, 2015

Why to Consider Collaborative Law

Whether you are facing the start of a divorce or other family law matter, or you are already unhappily experiencing a litigated family law matter, you should be aware that there is a more peaceful, less stressful, more creative alternative to litigation.

There are actually many reasons why people choose to use the Collaborative Law process.  Here is a checklist of some of the reasons.  If any of the reasons appeal to you and you are facing a divorce, you should consult with an experienced Collaborative attorney. It's best to start in the process, but you can always switch over in mid-stream if both parties have Collaborative-trained attorneys.

  • Privacy: You don't want your finances or personal behaviors out in public.  Many people don't want publicity and are concerned for their jobs.  Public officials, professionals, business leaders, professional sports figures and others usually prefer that their private lives not be opened up in public.
  • Need unusual terms:  Courts tend to use standard guidelines and approaches, but many people need special consideration that's not available in court.  It might be alimony, even if they don't technically qualify for it, or special visitation schedules because of unusual work schedules, or special consideration with the children or unusual cooperative agreements to keep a joint business going without taking it apart in a property division.  Collaborative agreements can be a lot more flexible and creative than court is.
  • Control timing:  Courts almost always will impose a scheduling order if the case doesn't move quickly to resolution. That schedule often stretches out for a year before the final trial date.  With Collaborative Law, on average, cases usually can be finished in 3 to 6 months, but can be done more quickly or more slowly, depending on the needs and desires of the parties.  A Collaborative case can be pending for up to 2 years without a court interfering with it.
  • You want a civil, peaceful process:  Litigation is a combative system not based on cooperation. Litigation attorneys must follow the rules and deadlines of the system and they depend on having a variety of hearings that can get pretty ugly.  Collaborative Law uses a series of short meetings and in Texas, we normally use a neutral therapist as a communication specialist who helps both parties work together effectively.
  • You want to make your own decisions:  Litigation leaves most decisions ultimately to the judge, or the attorneys make agreements based on what they believe the judge would rule.  In Collaborative Law, parties make their own decisions.
  • Want a neutral Financial Professional to help you understand the financial issues and options: In litigation, in some cases, each party will hire their own financial advisor, but most of the time, they don't use one.  In Collaborative Law cases, we normally use one neutral advisor for both parties in every case.
  • You want to offset a power advantage by your spouse:  It's very common in litigation for one party to have more power than the other because the party has knowledge, experience or information, or maybe has physically intimidated the other party.  In Collaborative, the neutral experts prevent such imbalances by sharing information and educating both parties.  Intimidation is not allowed to be used.
  • You want to be sure you get all the information you need for making decisions: In litigation, it's not unusual for one party to hide information. It rarely happens in Collaborative Law because we have an extra set of eyes reviewing the finances for everyone and we have open disclosure of relevant information.  Kid issues are worked through with the communication specialist or sometimes with a child specialist who are very experienced.
  • You want a more efficient process:  Litigation is  pretty inefficient.  Cases often have multiple temporary hearings. Information is usually gathered by the inefficient and over broad Discovery process which requests much more information than is necessary.  Collaborative Law has a step-by-step process that is followed in a series of short meetings that have agendas that are followed.  The process generally takes a lot less time than Litigation.
  • You want to keep a good relationship with your spouse:  Litigation pits each spouse against the other.  One wins and other loses.  In Collaborative cases, the parties work to achieve mutually beneficial goals.  With creative solutions, we avoid the old win-lose scenario.
  • You want to minimize fighting over the children:  Standard options in litigation often lead to unnecessary fighting over the kids.  Instead of finding ways to cooperative, as in Collaborative, litigators often are in custody fights or fights over the number of days per week they see the kids.  With the child specialist or communication specialist, Collaborative parents work informally to create plans that they are both happy with.
  • You want to improve your communication with your ex:  Improved communication in litigation means sending messages through your lawyer rather than sending ugly text messages or using the kids as messengers.  In Collaborative Law, we work on listening skills and practice how to say things in less offensive ways so that reasonable discussions can be held.

Saturday, February 14, 2015

Considering Reconciling?

This is kind of a chicken and egg situation.  Which came first, the possibility of reconciliation or choosing to use the Collaborative process?

Some people choose to try a Collaborative approach to divorce because they want to keep open the possibility of reconciling with their spouse.  Other people end up reconciling because they tried Collaborative Law and their experience working with their spouse gave a spark to the idea of possibly reconciling.

If reconciliation is a possible outcome you would consider or desire, here are some suggestions to help you get to that possibility.

  • Don't burn bridges.  Be kind to your spouse and don't say or do mean things.Trying to wear down or wear out your spouse is a terrible strategy for reconciliation.
  • Listen.  One of the big problems in many marriages is poor listening skills.  This would be a good time to learn to be an active listener and also to not interrupt your spouse.  Respond appropriately, but you need to hear out what your spouse is telling you.
  • Forgive.  Don't hold grudges.  There are plenty of reasons to be upset with your spouse, and for your spouse to be upset with you, but you don't have to be upset.  Be mature and forgive your spouse.  You will undoubtedly need forgiveness yourself, so be willing to overlook some things and forget about past issues.
  • Admit mistakes.   But try to focus on the future.  Don't waste time arguing over past mistakes and slights.  Admit and move on.
  • Get professional help. That means, see a counselor.  I'm not a therapist and most lawyers aren't.  Please get help from a licensed counselor who works with couples.  There's no quick cure for marital problems and there are no reliable self-help programs.  You need a professional and you need to be willing to make changes.  If either spouse refuses to go to counseling because "I don't have a problem", reconciliation won't work.  Both parties need to be willing to fully commit to getting proper help.
There's no guarantee that using Collaborative Law will lead to reconciliation, but  the Collaborative approach sure establishes an environment much more conducive to reconciliation than litigation does.  Good luck!