Monday, May 20, 2013

What NBC 5 D/FW Didn't Show about Do-It-Yourself Divorces

Last week, a reporter on the local North Texas NBC Channel 5 TV station had a glowing story about do-it-yourself divorces.  The reporter talked to a lot of people and showed how and where people can get forms to do an "uncontested divorce".

Disclaimer:  I don't do low cost divorces, so the story doesn't directly affect me.  It will not take away any business.  I work primarily on cases where the parties don't agree on some major issues, but still want to have a civilized or "friendly" divorce.  I do many Collaborative divorces where people need to come to agreements and don't want to engage in ugly litigation.

The main way the TV story could affect me is having to repair damage people will do to themselves in  doing their own divorce, and in some cases I will have to explain to the client  that the damage can't be repaired.  I would prefer for people to get it done right the first time.

Here are the problems with the report:

1.  Do-it-yourself really only works well if there are literally  no kids, no assets and a very short marriage.  The Texas Supreme Court created a form for a very limited purpose, but people are already misusing it. Many people try to use the forms even though they have assets and issues that aren't intended to be covered by the forms. The form doesn't define or explain some terms and that creates confusion for the users.  Some people end up guessing and making wrong assumptions.  Sometimes problems can be fixed, but sometimes they can't be.  If you discover a problem, contact an attorney right away.  Timing is important.

2.  If there are kids, you need very clear and specific language on the powers, rights and duties of each parent, and on visitation, child support and insurance.  You also have to make sure all the proper children are covered.  With blended families and children born out of wedlock, it becomes a little complicated.  If the proper language isn't used, the orders won't be enforceable.  People will become very frustrated and angry.  Then the Texas Attorney General or a private attorney will have to come in and correct order.  Visitation or child support that was missed because of an improperly drawn order may not be able to be recovered.

3.  If there are assets, you must identify all of it and divide it properly.  That includes retirement benefits of many kinds, employment benefits, QDROs, real estate ownership and documents, investments, bank accounts, debts, tax issues and separate property, among other things.  Many people don't understand what some of those things are and they may miss out on dividing them.  Some property may be hidden by the other side and included in the divorce.  Once a divorce decree is final, you may not be able to change or undo it, so you have to get it right the first time.

4.  Uncontested divorces are really rare.  Uncontested means that everything has been agreed upon. We get calls all the time from people wanting to do an uncontested divorce.  After asking just a few questions, it becomes clear that both parties have agreed to get a divorce, but don't agree on much else.  There's always at least one or two difficult issues remaining.  That requires negotiation or litigation.

5.  The results of do-it-yourself divorces:  people have to spend money getting repairs.  Many times, judges look over the paperwork and refuse to sign an obviously improperly drawn Decree.  That wastes time in court, not to mention the wasted time off from work by the person trying to get the divorce granted.  There is no public agency that will prepare or correct or supervise the production of divorce papers for do-it-yourself filers.  If you try to prepare your own, you will probably end up hiring an attorney to fix your work.

Solutions:  Contact Legal Aid of North West Texas for help.  Depending on your circumstances, they may take the case for you or they may refer you to an attorney who can help.  There are also some legal clinics occasionally that have special events to help people who want to handle their own divorces.  Also, if you want to find low-cost attorneys, consider hiring a young attorney just out of law school.  Those attorneys can do a good job for you and won't charge as much as more experienced attorneys.  Do some research on line and check with friends or other attorneys for recommendations.

Not Solutions:   Don't waste your time calling around and asking attorneys to answer questions on the phone for free.  Likewise, don't expect to get a free consultation with an attorney to find out how to do things.  Attorneys have to make a living, just as everyone else does.  They cannot give away their time and expertise to everyone who calls.  Most attorneys do some pro bono (free) work, but only under limited circumstances.  For example, I accept referrals for pro bono cases only from 2 or 3 agencies.  I don't do it for people contacting me directly.  Looking for something free will be frustrating and a time waster for you.  Instead, follow the suggestions in "Solutions" above.

Monday, May 13, 2013

How to Encourage Fighting in Litigation

Let me be clear.  I think it is a really bad idea to encourage fighting in litigation.  Still, there are many attorneys who do just that.  Sometimes, it's because that's what the attorneys think their clients want.  Other times, it's because that's how the attorney was trained.  Some attorneys believe that fighting it out in court will lead to the right result.  I don't subscribe to that point of view, but there are many attorneys and some judges who still believe it.

In the interest of full disclosure, I strongly advocate using Collaborative Law, wherever possible.  Where it's not used, the parties should at least use mediation.  I am a mediator, also, so there's some bias there as well.

Part of the reason why I got into mediation and Collaborative Law is that I saw, through years of practice, how people wasted lots of money, got stressed out and angry and damaged family relationships by battling in court.  It is rarely a satisfying experience for anyone, even the "winner".  Usually, both parties lose a great deal.

If you want to avoid the pitfalls of destructive litigation, here are some signs to watch for and avoid.

1.     Encouraging unrealistic expectations.  If a client is angry and has been hurt by the ending of a marriage, getting revenge, getting even or getting a pound of flesh are natural, emotional responses.  A good attorney will suggest getting help, such as counseling, for such an upset client, but will not encourage a client to put a lot of effort into a revenge-type strategy because ultimately, courts usually don't pay attention to that.  If an attorney is encouraging a client to make extreme demands, and I have seen that, it will not benefit the client in the long run.  It will result in substantially higher attorney fees, however.

2.     Encouraging more fighting.  Some attorneys will follow a client's emotional responses and allow and encourage actions that extend the fighting between the parties.  In the end, it usually doesn't improve the settlement or judgment for the client.  It does shrink the assets because attorney's fees keep adding up as the fighting continues.  Even wealthy people reach a point when they don't want to keep paying the attorneys to fight.

3.     Encouraging positional bargaining.  The most common type of bargaining that we instinctively use is "positional"  bargaining.  If you buy a car, you may start off with a low offer because you know the sales person has given you a high, but negotiable price for the vehicle.  Going back and forth, you and the seller work toward a middle trying to find a number you both agree on.

 In contrast, in Collaborative cases, we use "interest-based" negotiations.  In that approach, we identify what's actually important to each party and try to meet the important needs.  Rather than demanding 65% of the assets, we talk about the need to have some interest financial help for a spouse going back to school and the need to have some retirement security.

With interest-based bargaining, there are always more settlement options than with positional bargaining and we focus on the most important needs, rather than just using arbitrary numbers to divide things.

4.     Focusing on winning -- all or nothing.  There are so many issues to be considered in a divorce that it is hard to actually define winning.  There's also the problem that a party who gets an arbitrary percentage of the assets may not have a way to support himself or herself later on or they may end up with assets they really can't use and don't want.  The results may not help them at all.  On the other hand, focusing on meeting the needs of both parties can result in satisfaction for both, if they are willing to compromise and try new approaches.

5.     Focusing on the negative.  While emotions often run high during divorces, they don't have to dominate the process.  Some attorneys encourage and support their client's efforts to prove blame or fault in the breakup.  In almost all the cases where there's fault, there are many other reasons for a court to grant more assets to one party than the other, such as health issues, greater earning capacity, etc.  Arguing those issues will not generate the fight that trying to prove fault in the breakup does.  Focusing on negative issues will run up the attorneys fees for both parties, and that means less to be divided in a settlement or judgment.  When it's all over, it's little comfort that the other party has been blamed when both parties end up with less money and less assets.  You have to wonder if the fight was really worth it.

If you or your attorney engage in any of the above practices, be prepared for the consequences.  I predict that you won't feel as good as you expected when the dust settles.  There's still time to switch tactics.  If you don't want to be fighting, tell your attorney to stop.  If your attorney won't stop, get a second opinion.

Tuesday, May 7, 2013

7 Easy Tips for Successful Divorce Mediation

Here in North Texas, if you have a contested divorce or other family law issue, you will almost certainly be required to go to mediation before you go to a trial.  The main reason for that is that most cases (about 90%) will settle in mediation and that saves time for the courts.

If you get a divorce in Fort Worth/Tarrant County, you should expect to go to mediation.  Your divorce lawyer will attend with you.  Most attorneys have done a number of mediations and can easily explain what to expect and how to prepare.  In case you have concerns about the process and want some additional information, here are some tips for making the most of your mediation experience.

1.     Use your mediator to gain a different perspective.  The mediator is neutral and doesn't represent you or your spouse.  The mediator undoubtedly has a lot of experience in mediation and in family law.  Feel free to ask questions of the mediator.  Be sure to listen to suggestions and consider any questions or criticisms raised by the mediator.  You can get some new and different approaches from a mediator.  Having a three-way conversation with your attorney and your mediator can open up your mind to new ideas.

2.     Aim for solutions, not winning.  You may have already figured out that there are no real winners in litigation.  Decisions, deals and compromises are made, but there's a cost to everything.  That applies to both sides.  Stopping the fighting can feel like a win.  Don't keep score, just try to find a solution that works for everyone.

3.     Be flexible.  Don't come locked in to a specific plan.  I had a 5 minute mediation that ended because the wife insisted that she would only accept 80% of all the assets.  The husband obviously wouldn't agree.  The case was tried later (about $50,000 in attorneys fees later).  The judge gave the wife 60%, which was what the husband offered at mediation.  Unless you just want to continue to burn money on attorney fees, be willing to look at new and different solutions.  You can't be forced into agreement, but you can  usually find something you like.

4.      Listen.  You should pay attention and respectfully consider what your spouse says.  There is time to think about what the other side is saying.  Your attorney will probably have some suggestions, and the mediator will have some comments and questions about possible settlement terms.  Take your time.

5.     Come prepared.  Bring all the relevant records.  Get updates.  Have a spreadsheet with values.  Think about the issues in advance and consider different ways to solve the problems.  If you need to gather more information or documents, do so ahead of time.  If you need to talk with someone, go ahead and do it before the mediation.

6.     Don't try to discuss the difficult issues with your spouse in advance. Generally, you are in this situation because you can't reach agreements.  Sometimes, preliminary discussions just make the situation worse.  People start to think there's no hope of reaching a settlement because they couldn't do it on their own without the mediators and attorneys.  You can make things much worse by trying to save time and money by negotiating on your own.

7.    Remember to relax.  This is a slow process which has time for reflection.  Don't be in a rush.  There will be some down time, but I can tell you the mediator is using the time for your benefit.  Take it easy. You don't have to make instant decisions. You can think about proposals and carefully look into new ideas.  This is a lot less stressful than being in court.

Mediation is a great and efficient process for settling divorces.  Divorce courts will almost always order you to attend mediation, so plan on it and take advantage of the opportunity to reach an acceptable agreement.