Another Reason to Use Collaborative Law -- Easy, Free Parking!

I just heard an NPR news story about parking lots.  It was more interesting than I expected.  There were sound bites from Joni Mitchell's song, Big Yellow Taxi ("They Paved Paradise and Put up a Parking Lot") and a Seinfeld segment where they got lost in a parking garage looking for their car. The story was explaining the obvious -- people are always worried about where they are going to park when they drive somewhere.

It occurred to me that there's one more reason, that I've never heard anyone articulate, for using Collaborative Law to work through a Family Law case.  Easier parking! 

In litigation, the main action takes place downtown at a courthouse.  Parking is almost always a problem there.  In Fort Worth, we are lucky to have a parking garage next to the Family Law Court Building, but it often fills up and it's expensive.  To make things worse, there's a new civil courts building under construction across the street.  When it's finished, guess where those lawyers, staff, witnesses, jurors and litigants will park.  You might find parking on the street, but it's a 2-hour limit and how many court appearances only last 2 hours or less?  Not many.  So, a lot of people get parking tickets and that's a financial pain.

How does Collaborative Law contrast?  We agree to not go to court.  You don't have to park at the courthouse. We work things out in a series meetings at offices.   We usually meet at the attorneys' offices, but sometimes we meet at other convenient sites, including at the other professionals' offices.

In over 10 years of doing Collaborative cases, I've never had to pay for parking.

That's probably not enough reason by itself to choose Collaborative over litigation, but it's a nice benefit of the choice.

Complicated Finances: When You Should Use Collaborative Law

Couples facing divorce after a long-term marriage often have serious concerns about how to deal with and protect their hard-earned assets.  There can be a variety of investments, business interests and employment benefits built up over the years.  In a litigated divorce, if the case reaches trial, a judge is likely to divide the assets in ways that may not benefit both parties.  Some assets might be liquidated and others split up.  People on both sides are usually unhappy with parts of a judge's rulings.  An alternative to turning over the decision-making to the judge is to use the Collaborative process.

Here are some types of issues that might be resolved better with Collaborative Law:

1.  Family owned business -- Instead of  just letting a judge arbitrarily award it to one party or the other, the parties can work together to come to an acceptable agreement on how to handle it.  That could include the possibility of everyone continuing to work in the business, which is more likely to be possible in a Collaborative approach which seeks to protect important family relationships.

2.  Need for alimony:  now, interim or later in life-- The need for transitional help is common in the aftermath of a long-term marriage.  That need may occur immediately, for a short term, as one spouse gets re-established or goes to school.  It could could be long-term or short term.  It could also be a bridge later in life as the spouse approaches or reaches retirement age.

3.  Retirement assets to be divided -- In court, judges are tempted to pick an arbitrary percentage and divide retirement accounts across the board, regardless of expected needs or the expected ability (or lack of ability) to replenish the accounts.  In Collaborative cases, the assets can be allocated to meet the needs of both parties and consider the future abilities to acquire new retirement benefits.

4.  Need to provide for college education for children -- In Texas, courts can't really provide for college education expenses unless the children have special needs.  Collaborative Law cases often make it a priority to take care of the children's education, both private school (elementary through high school) and college.

5.  One or two professional practices -- Most professionals don't want their private financial and personal matters exposed to the public.  They want to maintain their professional practices and support their families.  To minimize cost and disruption, Collaborative Law is a good choice.  Value can be shared and used to benefit all family members.  Too many litigated divorces involving professional practices really get ugly.

6.  Planning for long-term care for spouse or child -- Sometimes a spouse or a child will need long-term care.  Judges can provide for that to a limited degree.  Collaborative Law provides a better way to come to more comprehensive agreements to provide the needed help, and money isn't wasted on litigation expenses.

These are some of the matters that can be dealt with effectively for people who have complicated, difficult financial issues.  If any of these apply to you, or if you have other questions, make sure you talk with a trained, experienced Collaborative Lawyer before you decide how you will proceed with a divorce.  You need to figure out all your options.

How to Negotiate in a Collaborative Law Case

For people starting out in Collaborative cases, their focus is usually on something like gathering information, wondering what to expect or worrying about whether their own needs can be met.  Something that isn't considered too often is now to prepare to negotiate in a Collaborative divorce case context.  Here are some suggestions to help address that oversight.

1.  Learn from the mental health professional (MHP).  You may have some solo time with the MHP and there will certainly be a number of occasions when you are in joint meetings with her or him.  The MHP is skilled in helping people learn to communicate.  Choosing your words carefully, thinking before you speak and learning to listen will all be things you will learn or be reminded of.

2.  Identify goals, needs and interests.  You will be encouraged to focus on the future, not the past, and to work on the important issues.  At the very beginning, you will be required to come up with a list of items that are important to you. These should be discussed with your attorney and then will be discussed at the first or second joint meeting.

3.  Pay attention and respect your spouse's needs.  This is sometimes difficult because spouses often disagree about what's important.  Still, listening to your spouse's positions and considering them can lead to better, more amicable solutions for both of you.

4.  Prepare before joint meetings.  Review and discuss the agenda items and your ideas with your attorney before each joint meeting.  Get advice from your attorney.  Gather any needed information before the meeting and share it with the professionals and attorneys.  Think about what you want to accomplish and consider how your spouse may respond.  Talk it all over with your attorney prior to the joint meeting.

5.  Stay within the lines.  Please don't try to save time and money by negotiating with your spouse one-on-one outside the joint meetings.  That almost always causes problems.  Remember, if you were able to sit down  and have rational discussions, you probably wouldn't be getting a divorce.

Bonus Tips:

• Warn your attorney if you expect problems with any topics or information.  There may be some hot buttons for you or your spouse that need special treatment.
• Ask for a short time out if a surprise or problem comes up in a meeting.  We don't like surprises and don't want either party feeling uncomfortable.
• Listen before talking or acting.  That's basic!

The Other Costs of a Litigated Divorce

Collaborative lawyers are pretty good about explaining the options a person has in starting on a divorce. The old standard approach is litigation.  The main alternative is Collaborative Law.  Another approach, which is used by some people, is to represent themselves, which is risky.  Other posts go into more detail about the dangers of representing yourself.  For now, I would like to focus on the costs of litigation.

The most obvious cost of litigation is the attorneys' fees and other costs of a court battle.  Dueling experts, depositions, extensive discovery and attorney's fees for all that plus multiple hearings can be very expensive, but there are other costs that you may not have considered.

1.  Loss of control over the outcome.  In litigation, the parties completely lose control of the terms of the divorce when they turn over the decision-making to a judge.  Each side gets to make their own sales pitch for what they want, but the judge can choose one or the other or neither of the proposals.  Even if the parties negotiate along the way, they usually confine their discussions to options allowed under standard guidelines or procedures.

In Collaborative Law, the parties start talking from the beginning and set out their own goals and objectives from the first joint meeting.  They are free to be as creative as they want and they are the ones who decide on all the terms for themselves.

2.  Damage to relationships.  Where there are children involved, there is often unreasonable fighting in litigated cases.  The parties tend to approach things from a win-lose or all or nothing mentality.  In order to "win" custody or significant time with the kids, parents will often say terrible things about each other.  Both sides become angrier and it's hard to patch up the damaged relationships.

In Collaboration, the parties work with a neutral mental health professional (MHP) who helps the parties communicate better, including learning how to listen respectfully and effectively to each other, a skill that most people are not born with.  Also, the parties don't get into blaming each other in order to advance their own agenda.  Instead, they discover that they can both be winners and both can have great relationships with the children by cooperating with each other.

3.  Stress and anger.  Litigated divorces are frustrating and the parties are put into situations where they believe they are both competing to "win" the same thing, whether it is financial or child-related.  The process is almost always stressful and tiring.  Everyone will get mad at some point at the others because of what is said or done in the process, and the way people cope with that is by fighting back, usually escalating the battles.

Collaborative divorces can also be stressful, but are generally less stressful because the parties have a feeling of having more control over their destinies.  Also, we use the neutral MHP to help people constructively deal with the stresses they experience.  There is less anger in Collaborative cases because we work hard on being respectful and civil in all our actions and words in the process.

4.  Time.  A litigated divorce will usually take a year or more here in Tarrant County.  There are often multiple hearings, depositions and other discovery procedures, and months of waiting for a final trial date.  Most cases go to mediation before trial, but that is usually at least 6 to 9 months after the case is filed.

In Collaborative cases, the parties start talking and working together from the outset.  Although each case is different, they can be completed in 3 to 6 months unless there are a lot of complications.  If they need to take more time to work through things, however, the parties don't have to rush to finish on a court's timetable. The parties control their own time schedules.

5.  Loss of expert support.  In litigation, you are basically on your own.  Some people work with a counselor, but most don't (even though they probably should).  Few people in litigation have a financial advisor who helps them find the best financial solutions in a divorce.

In Collaborative divorces,  we normally use a neutral mental health professional who does not do counseling for the parties, but who helps the parties with communication skills and helps everyone behave well and work effectively with each other.  The MHP also is a great help for the attorneys and alerts us if someone is having a problem at a meeting or if there are some sensitive issues we need to prepare for.  We also rely on a neutral financial professional who gathers and organizes information and helps the parties understand the tax considerations in the issues discussed. 

If you are considering a divorce, or you are definitely facing one, think about these costs and talk to a trained Collaborative lawyer about your options.  Remember, if you go to a family lawyer to discuss Collaborative Law, and the lawyer works to talk you out of using Collaborative Law, go get a second opinion.  The first lawyer simply may not really know about Collaborative Law.

Can You Switch to Collaborative Law After You Start a Divorce?

The simple answer is "Yes"!  

Even if you started by using DIY forms and trying to do your own divorce, you can switch to Collaborative Law by getting Collaborative attorneys for both parties.

A divorce or other family law case can always be changed over from litigation to Collaborative Law at any time before a final order is signed.  That's true whether someone is trying to use some prepared forms without using attorneys or whether both sides have their own attorneys.

What you would need is for both parties to have their own Collaborative Law attorney.  Plus, there would probably need to be some re-orientation for the parties to adjust how they approach the case.  Focusing on needs and interests, rather than using arbitrary percentages or standard schedules, will require some adjustment.

How to get started?  The first requirement is for each party to have a Collaborative attorney.  That means that one or both parties might have to change attorneys.  It is very important to have a trained and experienced Collaborative Law lawyer. 

Warning:  Some attorneys will try to get people in to discuss Collaborative Law and then actively discourage using it.  In reality, those attorneys don't do Collaborative cases.  If you go see an attorney who tries to talk you out of using Collaborative Law even though you think you would like to use it, please do yourself a favor and get a second opinion.

Is Collaborative Law Worth the Cost?

For people facing divorce, a common question is whether Collaborative cases are "cheaper than litigation".  While there is no way to compare a specific Collaborative case to an abstract idea of a litigated case, we can say that Collaborative Law will avoid a lot of the expense involved in litigation.

Attorneys will often talk about how the Collaborative process can save money for clients.  In most cases and in most ways, I believe that is true.  However, many people take an unjustified conclusion from that discussion even though we can't say what the cost would be.  They start to believe that Collaborative Law is a cheap process.  That conclusion is unwarranted and unsupportable because it is so subjective.  What is cheap to one person may be outrageously expensive to another.

Since we can't really answer whether Collaborative cases are cheaper, here's a better question.

Is Collaborative Law worth the cost?

1.  Consider what's at stake.  Family relationships and decisions about how to raise your children -- you can't put a price tag on that.  Most people would make those issues their priority.  Having expert help in reaching creative and unique decisions to meet your circumstances would be welcome by most everyone.

With a long-term marriage and substantial assets or business interests, you want to be sure that your money is well-spent finding solutions.  Many people who have accumulated real estate, investments and business interests need expert guidance to unravel or divide up the assets.  It is unrealistic to think that what may have been accumulated over many years pursuant to an evolving investment plan can be quickly and cheaply divided in an appropriate, beneficial and agreeable manner.

2.  Think about being cost-effective in gathering information.  It's very easy in litigation to spend a lot of money going through standard discovery steps that generate attorneys' and experts' fees without getting much information that is really essential for the decision-making on the financial issues.  In litigation, each side often has his/her own set of experts and the process amounts to both sides setting up a battle of experts.  In most cases, it makes better sense to use a single neutral expert to guide the parties in gathering, organizing and understanding information. In addition, if appraisals need to be done, or tax advice is needed, a neutral expert can also be hired for each of those issues. It's still cheaper to use one expert for each need rather than having each side hire their own

3.  How important is it for you to make the decisions on your finances?  For people who have successfully managed their own affairs and created wealth through their hard work, knowledge and experience, it is difficult to give up control over their finances.  Would you rather make your own careful decisions on dividing things up or let a judge who doesn't know or care about your family make arbitrary decisions on how to divide the assets?

In most cases, in my view, Collaborative Law is worth the cost.  It is a flexible process that allows you to just focus on what is important and necessary, rather than having the parties follow standardized steps that often result in far more work than is justified.  In cases without children and without substantial assets, Collaborative Law may not be necessary, but even then, it is still a much more civilized way to go through the process, and that may be priceless!

What Does a Collaborative Case Cost?

A question that everyone asks, or wants to ask, when considering Collaborative Law is "what does it cost?".  That's a natural and legitimate question.

The simple, but not-too-useful answer is:  somewhere between cheap and the cost of protracted litigation.  On top of that, cheap is not defined (it's relative, after all) and the sky (or maybe the extent of one's bank accounts or credit cards) is the limit  for protracted litigation cost.

Unfortunately, the answer is that we don't know in advance what a divorce case will cost.  Attorneys and other professionals normally charge by the hour and we can't tell in the future how many hours will be required.

Why can't we be more specific?  Because each case is different.   Some issues are usually harder to deal with than others.

Your case may involve one or more of the following issues and we rarely spend equal time on every issue.
      Post-divorce support
      Career training or retraining
      Health limitations
      Allocating investments between the parties
      Retirement planning
      Child care
      Ownership and management of a small business
      College expenses
      Unique visitation circumstances 
      Tax planning
      One parent moving away
      Mental health issues
      Keeping both parents involved with very active children
      A professional practice of one or both spouses
      Dealing with teenagers
      Dividing, sharing or allocating a family business

There are varying degrees of difficulty between issues and between cases.  We can't predict ahead of time how much time we will need to devote to each issue.  What will be clear is that your team of professionals will allocate their efforts in gathering information, identifying issues and creating solutions in the most efficient manner to deal with what's most important to you. 

You can get some specific information on what to expect in a Collaborative case by talking with a Collaborative attorney.  Be sure to explain what's important to you and what outcomes you would like to see.  That could give you useful information to help decide how to handle your case.