Thursday, May 31, 2007
Because most people in Tarrant County are still not knowledgeable about Collaborative Law in Texas, there is a lot of misinformation circulating about it. I will briefly mention some common misconceptions. These will refer primarily to divorces, but Collaborative Law can be used on just about any family law issues.
1. "It only works if everyone is agreeable and wants to be fair." Not true. Like any other divorce, a Collaborative divorce usually involves some serious disagreements. People bring their own agendas to the process and may choose it for a variety of reasons. The reason is rarely that everyone just wants to be fair and agreeable. (See other posts on this blog for reasons why people choose Collaborative Law.) The Collaborative process changes the way people act as they create solutions and achieve their goals.
2. "It won’t work for custody cases." Not true. Actually, Collaborative Law in Texas provides better resources, in a more humane environment, for resolving custody cases, than does traditional litigation. We use neutral experts, when needed, who work for both parties and help them find or create new solutions that are customized to the parties’ unique situation. In comparison, litigation generally relies on a "winner take all" approach and usually closely follows the statutory guidelines and schedules, whether they fit the situation or not.
3. "Both parties must completely trust each other for the process to work." Not true. While there needs to be basic trust between the parties, the process provides more direct involvement by the parties, excellent verification of facts and the assistance of neutral experts who directly work with the parties to gather and interpret information. There will probably never be a divorce with complete trust between the parties – if that existed, they probably wouldn’t be getting a divorce.
4. "The process won’t work if there’s been adultery or other misbehavior." Not true. There have been many successful Collaborative cases which involved adultery or other troubling issues. If people are willing to commit to focusing on their future instead of their past, they can successfully settle a case even with serious past indiscretions.
5. "There’s no ‘Discovery’ or exchange of information." and "Either party can easily hide assets and there’s no way to find them." Not true. The parties fully disclose records and information to each other, we usually prepare a joint sworn Inventory of the assets and liabilities and we utilize various joint, neutral financial and child experts as needed. We don’t do formal written discovery or depositions. Instead, we get a thorough, but focused, overview, and rely on neutral experts to evaluate the facts and help us find and verify the relevant information. No system is perfect, however. The litigation system certainly has its share of hidden assets that "disappear" and are never located.
6. "It’s the way I/we have been practicing law for years." Not true. Some attorneys, particularly in Tarrant County, Texas, have been very cooperative and less confrontational for years, which is great. For a long time, it has been obvious that well over 90% of all divorce cases settled without a trial. Those are similar characteristics, but Collaborative Law is different: the lawyers cannot go to court (except to finalize the divorce and get the agreed order signed); at the outset, we focus on the parties’ goals and then follow a 4-step problem-solving process; we use neutral mental health and financial professionals in most cases; and we meet and talk directly with each other in a series of relatively short meetings. Those are just some of the ways the processes are different.
7. "Most people just need to get the best outcome possible for themselves". Not true. That implies that Collaborative Law won’t help a person as much because it tries to have a good result for two people. Actually, there is no reason why both parties can’t have a good outcome. Collaborative Law’s emphasis on creating new, unique solutions means that the pie to be divided can actually be enlarged. Instead of relying on standard formulas and guidelines, Collaborative lawyers help the parties come up with new approaches "outside the box". While some people are angry and want revenge on their spouse (and are not good candidates for Collaborative Law), a probably much greater number just want to get through the process without breaking the bank. Most people would accept a good outcome for their spouse if they also receive a good outcome.
As more people find out about Collaborative Law, many more will choose the resolve their important family legal disputes by that process. Clearing up myths, like the ones above, will help more people under how Collaborative Law works and can benefit them.
There are a number of reasons why prenuptials are considered.
- For some older couples, prenuptials are for estate planning. They are prepared to avoid conflicts with or between adult children. Prenups can also determine how probate issues are resolved. Appropriate planning can result in savings of taxes and legal fees and can provide reassurance that each party will receive the financial support that both parties presently intend. A prenup can also protect the inheritance (if desired) for the children of each party.
- Prenuptial agreements can protect businesses. If there is an existing business run and owned by one of the parties, a prenup can ensure that the owner does not lose control or ownership of the business. The agreement can also provide that an increase in value in a business would be a separate property asset or a community asset. It can also determine how business debts are paid.
- Some people want to avoid repeating an unpleasant divorce experience. Prenuptial agreements can pre-determine various issues from property division to attorney’s fees to alimony, among other things. The result is a shorter, less expensive divorce, although one party may feel taken advantage of. (A feeling which often occurs in divorces for various reasons.)
In cases where a party seeks a divorce after having signed a prenuptial agreement, it’s not unusual for one party to want to break the agreement. Courts examine a number of factors in determining whether an agreement is valid. If you’re thinking about getting or signing a prenuptial agreement, it’s helpful to understand what mistakes to avoid.
What a court looks at in Texas:
- It needs to be a voluntary agreement. In many cases, a party doesn’t want to sign the agreement, but believes the marriage won’t happen unless the prenup is signed. A court will look at all the circumstances to determine if the agreement is voluntary.
- There must be disclosure. If assets are hidden and not disclosed to the other party, a court may set aside the agreement since there is a lack of understanding of the assets and the impact of the agreement.
- The agreement needs to be written and signed.
- Each party should have their own attorney. While it is not essential, it is good practice. A court is probably more likely to set aside an agreement where one party did not have an attorney. (One attorney cannot represent both parties, either.)
- There should be adequate time to discuss the situation, understand the facts and make a voluntary decision. Unfortunately, most people tend to wait until the last minute to start working on an agreement.
If the parties use a Collaborative Law approach to preparing a prenuptial agreement, the stresses of the procedure can be minimized, an enforceable agreement can be reached and both parties will be able to support the agreement because of how the process operates.
Advantages of creating a prenuptial agreement:
While prenups may not seem like a very romantic topic to discuss just before a wedding, there are some solid reasons for doing so and some potential advantages, other than the obvious ones.
- It forces the parties to look into the future and communicate about some important, although not romantic, subjects.
- Done right, the process will reinforce feelings of trust and security while clarifying expectations and values for each party.
- The different communication styles of each party may be demonstrated at a time when there are alternatives available for each person. The good and the bad may come out.
- While attorney’s fees for preparation and signing a prenuptial agreement can be substantial, they are a lot less than a contested divorce or probate case would cost. Spending the money up front to prevent a problem can be well worth it.
- If Collaborative Law is used, the parties will learn about each other’s goals and learn how to work together and communicate better. It may also lead the parties to be more open-minded and creative with each other. A Collaborative approach takes a little while to do, so it probably won’t work if you start three days before the wedding.
For couples getting married, prenuptial agreements can be a valuable tool or they can create hard feelings and put someone at a significant financial or power disadvantage. Agreements can be helpful to both parties, but they cannot be put together properly and effectively in just a few days. Starting work on the process early, and especially using Collaborative Law, can produce a beneficial agreement that will stand up in court and can enhance a relationship.
Monday, May 21, 2007
Aside from the facilities, the court system in Tarrant County (and many other counties) emphasizes other processes which can lead to peaceful resolution of family law issues. Judges routinely instruct attorneys and parties to go outside the courtroom and talk to try to settle the issues without having a hearing. Judges also commonly order the parties to attend parenting or co-parenting classes. Those classes teach skills that enable the parties to work together in ways that were impossible earlier. And in almost every case, the court will order the parties to attend mediation before they can take up the court’s time in trial. That is an important step because about 90-95% of cases settle in mediation, and the judges know that.
One of the newest approaches is called Access Facilitation. It is a process in which the parties, usually without their attorneys, meet with a neutral social worker from the Tarrant County Domestic Relations Office to try to work out conflicts about custody, times and amounts of access (what we used to call visitation) and other parenting issues. The social workers are experienced in dealing with parents going through divorce and are trained is resolving disputes. They are not permitted to make binding decisions about how the matters should be settled, but they provide a safe and managed environment for the parties to more calmly discuss the problems and create solutions. There can be multiple sessions, if needed. The meetings take place at the courthouse, so they are convenient when the parties are in court. One of the best features is that Access Facilitation is free.
Prior to attending a session of Access Facilitation, it is helpful for the attorney to work with the parent to help her or him clarify what their goals are for their relationship with the child or children. It also helps to do a little brainstorming and have several different options to propose and discuss. Spending time trying to understand the other parent’s goals and motivations can also be very valuable. Both parents need to go into the sessions with open minds, a willingness to try something new and the ability to compromise. Finally, each parent should be aware of, and keep in mind, the costs and uncertainties of litigation.
Access Facilitation is an inexpensive, low-risk alternative to litigation that is available in virtually any case involving access or possession of children in Tarrant County. It is much less stressful than having a court hearing and can lead to some creative, customized solutions to conflicts over children. Having a neutral, experienced social worker lead the meetings can provide a safe and effective process to settle some very emotional issues. It won’t always work, but it has an impressive record. Even if it doesn’t lead to an immediate solution, it can eventually result in a settlement. And It’s Free!
Tuesday, May 15, 2007
When people learn about Collaborative Law as they are about to begin the process of divorce, many become very interested in trying it because of the opportunities for creative solutions, privacy, control over the outcome, civility, etc. that are associated with Collaborative Law.
Some are a little skeptical about whether they and their spouse can get along well enough to work out an agreement. When a Collaborative attorney explains that the Texas model of Collaborative Law offers the assistance of a neutral mental health professional (MHP) to help both parties operate at their most effective and cooperative levels, they like the idea, but sometimes worry about the cost.
What we have learned is that the cost of the MHP is a great investment because the MHP helps both parties communicate appropriately and maintain a safe and relatively calm environment. The Collaborative process actually helps meetings be more productive and less argumentative than they could be otherwise. In addition to being more comfortable and satisfied with the process, the parties actually end up saving money.
In a Collaborative Divorce, the phrase, "more is less" really makes sense. By adding another participant to the process, the parties operate more efficiently and spend less time arguing. The time they spend in meetings is productive because they are assisted by the neutral MHP who helps the parties communicate in more helpful ways that advance their own interests. While it may seem personally satisfying to berate a spouse for various faults, those comments rarely contribute to an eagerness for that spouse to want to settle.
There are some potential difficulties in Collaborative cases even with parties who really want the process to work out. Inevitably, there are some tough, emotional meetings that challenge the abilities of the parties to maintain the civility that is a hallmark of Collaborative law. Hiring a neutral mental health professional may be the single best way to save money in a Collaborative Divorce.
Monday, May 14, 2007
Visualize how you would like your life to be and then keep that image in mind. Write down how you want your life to be and then create goals that are consistent with that image. Take steps that move you toward the goals you have set.
Get a financial check-up from a CPA or financial planner.(Make sure you start off with a fee-for-service professional, rather than a commissioned sales person.) Check your credit history. Create a budget and live within it. Do some long range planning, including for retirement.
Look for new interests. You can improve your emotional well-being by trying new things. Look for a new job or a part-time job. Become active in your church, synagogue or religious community. Take classes at a college. Explore new hobbies or money-making opportunities. Join new social groups. Reconnect with family members.
Get healthy.Schedule a physical check-up. Start a new exercise program or class. Concentrate on being healthy and trying new physical activities. Work out and make new friends at the same time. Resume sports that you enjoyed in the past. Get your friends involved.
Do a career check-up.Do you like your job? Are you considering a change? Take an aptitude test to see what careers suit you. Consider learning new job skills or finding a new job. Take on new responsibilities at work.
Times of change provide an opportunity for reflection, motivation and personal growth. You can turn a difficult time into an opportunity for a better life. Get help from friends. Don’t try to do everything by yourself. Create a new support group if your old friends are no longer around. You can find friends in new activities or by helping other people through a charity or volunteer organization that you believe in. If you are forced into changing your life, make your world better.
If you are going through a divorce or are experiencing other family issues, we can help direct you to appropriate resources to help you successfully deal with the stresses that are inevitably associated with those situations. Please feel free to call for referrals or other assistance.
Saturday, May 5, 2007
Most family law cases (probably 90-95%) will settle before a judge rules on them. Given that fact, it makes sense to focus on finding the best way to get the best agreement possible. It also makes sense to start thinking about settlement at the beginning.
As Stephen Covey and others have suggested, I like to start with the end in mind. Although it is often difficult for people going through the emotional trauma of a divorce or other family law issue, identifying and then focusing on a person’s most important goals, needs and interests provides the best guidance for getting through the process in a way that minimizes damage and leads to the best possible outcomes permitted by law.
The path to resolution used in Collaborative cases is very effective and can often be used even in litigated cases ( just not as well).
- First, determine the parties’ goals, need and interests (for both parties).
- Second, discover and organize the facts in the case.
- Third, brainstorm possible solutions and generate as many options as possible.
- Fourth, evaluate the options.
- Fifth, negotiate and reach an agreement.
It really helps to understand the other party’s motivations and needs. Spending time figuring out those things can pay off when negotiations are going on to settle a case.
Court hearings are rarely the best way to resolve issues. They are stressful for the parties, expensive, slow, and often result in arbitrary rulings that don’t solve the most important issues. Some attorneys adopt a strategy of wearing down the other party through expensive and stressful court hearings, discovery processes and threats. That approach is sometimes successful, in the sense that a party may wear out and give up, or they may run out of money. However, that doesn’t bring peace and it is often very destructive to relationships between parents who still have to raise a child.
Court hearings are sometimes used as an "easy way out". It takes less effort and creativity to raise a complaint or issue and then just turn it over to the judge for a ruling.
Sometimes court hearings are unavoidable, especially if the other party is unreasonable or uncooperative.
In most cases, persistence and creativity will lead to excellent settlements, if the parties start with the end in mind.
As you may know, Collaborative Law is a process for resolving legal disputes without going to court, except to have an agreement approved by a court. Parties engage in a series of relatively short meetings where they identify their goals, assess the facts of the case, brainstorm to generate options to solve problems, evaluate the suitability of the various options and then create or select the best means to achieve the goals for each of the parties. Neutral experts are often brought in in Texas Collaborative Law cases, as needed, for specific functions. If the process breaks down, the parties must retain different attorneys to go to court with them.
Collaborative Law is a voluntary choice at the outset and the parties can opt out at any time, but it works about 93-95% of the time because, for most cases, it can result in more creative, customized and peaceful solutions than traditional litigation. While it may seem counterintuitive, many people are able to be open, honest and cooperative even in difficult cases that involve issues such as custody, extra-marital relationships, unique possession schedules and substantial and complex property issues.
People who have been choosing Collaborative Law have one or more of the following characteristics. They –
Value privacy. Collaborative meetings are private. There are no public hearings at the courthouse. Personal and financial information can be protected.
Want to make their own decisions. Instead of turning things over to a judge, the parties are able to create their own solutions and not be bound by tradition or arbitrary guidelines or standards.
Prefer to determine their own time schedule. In a litigated divorce, the parties often must follow an arbitrary time schedule imposed by a court and can be required to appear or take actions whenever the court wants them to, regardless of convenience or needs. In Collaborative cases, the parties decide how fast or slow they move and set meetings or take actions when they want to do so.
Often want or need to maintain a good relationship with a spouse, post-litigation. If the parties are parents, they usually see the value in cooperating and sharing the raising of their children.
Appreciate saving time and money by using jointly-hired neutral experts who work for both parties to create solutions. A neutral financial planner can often save money (and assets) for both parties by wise use of tax planning when assets are divided.
Are concerned primarily with the children’s best interests. They get neutral expert help to set up workable arrangements that suit the children and fit the parents’ situation.
Look to the future, rather than dwell on past conflicts. They focus on what good can come out of a difficult situation instead of dredging up all the past arguments and dirt on the other party. They may have had a bad experience in litigation, or may have seen it with family or friends. They realize that they can accomplish more and get better results by cooperating and acting as mature adults.
Collaborative Law will not work for everyone, but it is a great option for many. People who are mentally ill, violent or just very unrealistic are not appropriate for Collaborative Law. Likewise, people with fixed ideas, unwilling to consider other options, cannot function in a Collaborative case. For many others, such as ones described above, Collaborative Law encourages hope for the future and life with less conflict.
Wednesday, May 2, 2007
There are some actions anyone can take to improve their chances of having a more favorable outcome and avoid some of the problems that occur during a divorce. Seven of the best tips are explained below:
1. Be prepared. If you know ahead of time that you will (or may) be going through a divorce, it really pays off for you to gather documents and information about important issues, such as your finances. You may uncover unknown assets or you may just have proof of the existence and values of assets, which would probably help save quite a bit of money.
2. Plan for changes and be flexible. Realize that your family will become two separate units and that will stretch your resources. You may have to change your short- and long-range goals. In almost every case, someone virtually "starts over" and often both parties really struggle. Accept the need to compromise and be open to new ways of doing things.
3. Be honest with your attorney. He or she can’t do nearly as good a job with faulty information. Virtually everything you tell an attorney is confidential, so don’t hold back.
4. Prepare to use specialists. Attorneys can be very good helping you with the law, facts and procedure, but they often don’t know as much about specialty areas such as taxation as a CPA or divorce financial planner does. The process can move faster and better if you use (as needed) a:
Counselor/therapist, if you are sad or mad.
Financial planner, if you don’t have much experience in finances.
Business valuation expert for small businesses.
Child specialist to help find solutions for visitation, child support issues, living arrangements, etc.
5. Look at the big picture. Don’t get lost in insignificant issues or in keeping score to see who wins the most points. If you start to slip into arguing about tiny issues, make yourself go back up to the broader issues and get your spouse off the small stuff. Focus on the goals, needs and interests that are important to you. It doesn’t matter what your spouse is gaining or claiming to gain or wants to argue about. Leave the small stuff alone and stay true to your essential goals. You will be truly successful if you can achieve your important goals and needs.
6. Practice "putting yourself in your spouse’s shoes". Empathy can really help you in a number of ways. Since 90-95% of divorces settle, negotiations are a major part of any divorce. You can better understand and respond to your spouse’s requests and offers if you understand what important to him or her and what factors will motivate them. Being able to figure out what your spouse is motivated by can help you create settlement options that will be acceptable and even welcome to your spouse.
7. Reduce conflict. The more you fight, the more it costs. That should be obvious. You can choose to start or continue battles, or you can decide to work for solutions.
Following these tips will improve your chance of success, no matter how you define success. At the least, you should have a divorce with less fighting and more attention to the important issues.