Tips for Success in Settlement Conferences or Mediation

In his South Carolina Divorce blog, J. Benjamin Stevens listed 9 excellent tips for negotiating in a settlement conference or mediation session. A little more explanation is available from the original source, "Settlement Conference Success" by Helene Taylor, published in The Modern Woman's Divorce Guide, but the key points alone are clear and self-explanatory. They are as true for men as women.

Many divorce and family law cases can be settled in various formats of informal settlement discussions. About 90-95% of cases will settle in mediation, if they reach that stage. In either approach, the following tips are useful to prepare for a successful negotiation effort.


1. Identify the issues in your case.
2. Understand how the law affects your case.
3. Know the estimated costs of trial.
4. Remain open to unique opportunities.
5. Keep a few secrets.
6. Be determined.
7. Be ready for a little give and take.
8. Be patient.
9. Get it in writing

You will really benefit by taking time to prepare for negotiations by following the first three steps above. That will help keep you on target and realistic. You will know what you have to win or to lose, which is useful information when you are weighing offers and options. Acting consistent with tips 4 -- 9 will help you reach an agreement and have something that is satisfactory to both.

Mediation vs. Collaborative Law in Texas

Recent posts by the Oklahoma Family Law Blog and the Kansas Family Law Blog discussed the differences between mediation and Collaborative Law. From state to state, there are always some differences in laws, and that is also true in this area. The differences are not huge, but are noteworthy. The following is a similar discussion of the differences between mediation and Collaborative Law, but in the Texas context:

1. In Texas, attorneys are generally present during mediations, just as they are in Collaborative cases. In several other states, the parties usually attend mediation sessions without attorneys.

2. Texas mediations are most often conducted using the caucus model. The parties and their respective attorneys usually stay in separate rooms, with the mediator shuttling back and forth between rooms to convey and discuss offers and objections. There is little or no face-to-face contact between the parties at most Texas negotiations.

3. Mediations in Texas are usually a one-shot process, scheduled for all day or half a day, with no subsequent sessions. Sometimes, complex cases result in marathon sessions. Rarely, there are follow-up sessions to try to complete the settlement. The result, especially in half day mediations, is a lot of pressure to settle quickly, without much time for generating alternatives or considering consequences. Collaborative Law cases are usually resolved through a series of relatively short negotiating sessions.

4. Collaborative Law cases in Texas often involve neutral experts who work for both parties. In mediations in Texas, there’s usually no expert at the mediation, or there may be two of each kind of expert, one for each side. There’s usually no communication specialist or coach for the parties in mediation to help them be more effective in negotiating. As a result, bad behavior is not moderated.

5. The lead up to each system is also different. In Texas cases, mediation usually occurs after there have been court hearings, formal discovery and exchanges of offers and counteroffers. There is a spirit of competition and settlements are considered in part in comparison to what the parties think the judge might award. In Collaborative cases, there are no court hearings, formal discovery or preliminary exchanges of offers. There are a series of meetings where issues are discussed and information is voluntarily exchanged in a spirit of cooperation. The objective in a Collaborative case is for both parties to achieve their goals, rather than to just maximize the settlement for one party.

6. The basic problem-solving framework is different for each approach. In a Collaborative case, the parties first identify their goals, then gather information and share it. Next, they identify the issues and brainstorm possible solutions. After the parties evaluate the potential solutions, they negotiate to reach agreement. In most mediations in Texas, positional bargaining is the most common approach. For example, someone may think that 55% of all the assets is what they should end up with, so they start demanding 65 or 60% of the assets so they can compromise and reach their target.

7. In Collaborative Law, there is no threat of "just letting the Judge decide". Unfortunately, that is a common ultimate fall-back position in Texas mediations.

While this post may sound pretty derogatory about mediation, that is only true when Texas-style mediation is compared to Collaborative Law. If there were a possibility of several sessions of mediation and the parties negotiated face to face and if the parties used interest-based negotiations instead of positional bargaining, the process would be greatly improved. Even as it is practiced in Texas, it has a tremendous value and has settled probably 90-95% of the cases where it is used. It is usually better than letting a judge decide the matter and the parties often are happy with the settlements they reach. The value of mediation is affirmed by the fact that it is sometimes used in Collaborative cases as a tool to help settle some issues while the parties are still in the Collaborative process. Clearly, there’s a need for mediators as well as Collaborators.

Creating an Emergency Fund, or Living with a Reduced Standard of Living

A couple of days ago, Grant Griffiths (Kansas Divorce Lawyer and Attorney) had another excellent post highlighting a continuing problem couples experience. As he noted, many many couples’ problems stem from conflicts over money – needing more, wanting more, how to spend it, who should earn it, etc. One way for couples to avoid problems is to plan ahead by setting up an emergency fund. It takes some resources and a lot of discipline. Grant referred to another blog, Bankrate.com, which is doing a series on Financial Literacy 2007. The Bankrate post had "28 ways to save for an emergency fund" which had some excellent and very practical ideas. Any couple implementing these ideas will really benefit in many ways.

Reading through that list, I was struck by the good advice which could also apply to the common situation arising in divorces, the need to change one’s standard of living. In most divorces, adjustments need to be made because the money and resources originally used to support one household (often stretched tight at that) suddenly must be divided in some fashion between two households. Few families are in a position to split up and still maintain their old standard of living. While not all the suggestions contained in the Bankrate post will work for all families, there are plenty of good ideas that will work for many families. This is a good place to start planning for new financial realities. It’s great advice to help deal with future emergencies, but even more, it’s a roadmap to economic recovery after a divorce.

Divorce Myths

James Gross of the Maryland Divorce Legal Crier blog recently published the following list of divorce myths.

1. A divorce will solve all my problems.

2. The judge will see that I am right.

3. The judge will never believe my spouse.

4. I will get revenge for the way my spouse treated me.

5. The judge will not make any mistakes.

6. I will win my case.

7. My spouse will lose.

8. I can afford the legal fees for my divorce.

9. I will get justice from the court.

10. The meanest and most aggressive attorney wins.

11. It will be over within a reasonable time.

These are just as true way out here in Texas.

End of Summer Custody Disputes: Possible Solutions

The family law courts usually become busier in late July and August. Many custody change cases are filed and the parents want the issue resolved favorably before school starts. Unfortunately, it often takes many months or a year or more to get a final decision. Sometimes, it’s hard to get even a temporary decision before school starts. On top of that, it can be a very expensive process to be involved in.

When faced with a choice to file for custody, or a choice of how to
respond to a custody change suit, wise parents will consider whether there are any other ways for the parties to achieve their goals. The answer often is "yes".

Here are some suggestions to consider if you are faced with this issue in the near future.

• The parents can work together through the Collaborative Law process. It would be especially beneficial to bring in a child specialist to help them come up with some original creative ideas.


• If a parent really just wants more time with the child and recognizes that the current home is good, maybe letting the non-custodial parent pick up the child after school, or see the child in the evenings during the week or have an extra night or two overnight would help.


• If there are school problems, maybe bringing in a tutor, or letting the other parent tutor, would solve the problem. With school issues, it really is better to have both parents working together to come up with solutions. Again, a child specialist could be very helpful.


• Having both parents take a co-parenting class would help, especially if they were in the same class together. That way, they would both get the same information.
• If there are scheduling problems, maybe the parties could use an on-line service to share a calendar. There are several services available at very little cost and not requiring high tech expertise.


• The parents could also go to counseling together or even include the child in counseling. If the parties can work together somewhat, attending counseling together could be very effective.


• If both parties have strong feelings about some issues, they could go to a mediator or meet with a child specialist to work out some creative solutions. Having a qualified, neutral professional help them would give them a better chance of success.

You may have noticed that none of the suggestions involved rushing to the courthouse, filing and getting a hearing as quickly as possible. That’s because going to court is expensive, it escalates the fighting, it damages relationships and it generally will result in some standardized order that may not be very comfortable or effective for the parents and child. Usually, one side prevails in court and the other loses. Creativity is in short supply at the courthouse. A better solution is to think and talk before filing. Don’t get caught up in the emotion or perceived opportunity to succeed by starting a court fight. A better course of action is to keep the big picture in mind and focus on what’s truly best for your child – not just what you want!

End of Summer Custody Disputes: Should I Try to Get Custody?

Every year, at the end of July or the first of August, there is an upsurge of court filings where the non-custodial parent is seeking custody of a child, hopefully to be resolved before school starts. Immediately preceding that upsurge, the child has often spent from a week or two to a month with the non-custodial parent. Parting is not always sweet sorrow and when it is time for the child to go back to the other parent, often the battle begins.

There are four common ways that these conflicts develop.

First, there is a spontaneous start. The parent and child miss each other when they’re not together and they may have had an especially wonderful visit this time. Either the parent or child may start a discussion after thinking how wonderful it would be to live together "all the time".

A second possibility is that conditions (job, home, school, remarriage, etc.) may have changed and the change of custody might really be in the child’s best interest.

A third possibility is that one party has been planning it for a long time and has been planting seeds of discontent, envy or desire through hints or little comments made to the child or around the child. In effect, a parent can make a direct or indirect offer of some type to win over a child. Telling a child of 12 that he or she can get a computer game system or telephone if they live with the non-custodial parent can be pretty powerful. Promises of a car or freedom to do things the other parent won’t permit can work with older children.

A fourth possibility is that a party may act maliciously. That could include inventing or distorting allegations of abuse or neglect, or simply agitating behind the scenes to undermine the other parent. Often, a parent acting maliciously is actually angry over some unrelated and unresolved issue and uses the custody fight to get back at the other parent or to intimidate the other parent from pursuing some other matter.

Whatever the motivation, the difficult situation is often made worse by one side having a child, 12 years of age or older, sign a statement expressing his or her preference of the person he or she wants to designate the child’s primary residence. Even though signing that statement puts the child squarely in the middle, Texas law permits it and it is often used. (Quite frequently, the child later signs a statement choosing the original custodial parent to be the one to designate the child’s primary residence.)

Here are 5 things to consider when deciding whether to file a motion to change custody or when deciding how to respond to such a motion.

1. What would be in your child’s best interest? It’s not a
question about a parent – it’s about the child. Where is the best school? Where are the child’s friends? Which home is better, or are they both OK? Does the child have some special needs? If so, how can each parent contribute? Is one parent better able to provide support and nurturing than the other? Where is the better environment for the child? The focus should be on your child.

2. What’s really changed since custody was last determined?
While there are always changes in life, are there some significant changes that have affected your child?

3. Be careful to avoid manipulation by your child. Children learn
early that they can win by playing both parents against each other. They understand that they can create a bidding war and come out ahead. They can also punish one parent by wanting to live with the other one. If your child has initiated this process, look for signs of manipulation.

4. Figure out the underlying motivations of each party. Is this
really just a way to get to spend more time with a child? Is it intended to either get or avoid paying child support? (If so, it’s pretty short-sighted.) Have there been problems in sharing time between the parents? Does one parent really have a much better environment for the child now? Are there other conflicts between the parents? If so, is a custody fight a way to put pressure on the other parent?

5. What is this going to cost, financially and relationship-wise? Can you afford a custody fight that could cost tens of thousands of dollars? Is there a better use for that money? If you have gotten along well with the other parent, a custody fight will probably end the cooperation and peaceful coexistence. If the relationship is already not good, there may not be as much at stake, but that may mean that the other parent will fight harder out of anger. Either way, there will be a substantial cost.

A decision to file for a change of custody during the summer should not be made lightly. Before filing, one should carefully consider any hidden agendas, the costs involved, the reasons for changing and possible alternatives to filing.

Adding a Financial Professional in a Collaborative Divorce

While there are several different versions of Collaborative Law utilized around the country (and now, the world), in Texas we usually at least suggest, and often insist, on bringing a Financial Professional (FP) into the process either at the outset or very early. Understandably, the initial reaction of some people is that they can’t afford the cost of another professional. In reality, there is usually a cost savings as a result of the help provided by the FP. That savings is a result of several factors.

First, a qualified FP who is trained in Collaborative Practice can be invaluable in coordinating the gathering, organization and analysis of the financial facts in the case. Generally, the FP starts out with more knowledge of finances than either of the attorneys and can help the parties focus on the important information, help them locate the information and then put the information into a format that is easy for all to work with. That usually turns out to be a more efficient process than one where the attorneys gather and organize the information.

Second, having a single, neutral FP managing the financial information means that one professional, often charging less than either attorney, is carrying out a major part of the Collaborative process. There is no duplication of effort and the clients end up saving a lot of money. Additionally, one of the major roles of Financial Professionals is to analyze and explain the tax consequences of various courses of action. As a result, the parties can make sensible decisions where both can benefit and save money. Who doesn’t enjoy saving money?

Third, a good FP can not only save time and money – sometimes they save the process and make it possible to successfully complete the case. An FP provides a neutral voice with expertise. Occasionally, near the end of the process when the issues and options have been narrowed, it helps to have a neutral trusted advisor who can explain things to both parties. Sometimes, it is necessary to explain the same issue in different ways to each party so that each understands it. A well-trained FP can recognize that need and will have the Collaborative communication skills to be able to do so. Often a suggestion or question coming from an FP can have a much greater impact than if the same suggestion or question had come from one of the attorneys. The neutral Financial Professional may be in the best position to get the parties to reach an agreement on the final issues when negotiating is often the toughest.

It is important for the parties in a Collaborative Divorce to understand that bringing in a trained Financial Professional will pay off for them in many ways. They can save a lot of time by allowing the FP to efficiently manage the financial information. They can save money by allowing a single professional to handle a lot of the work that otherwise would be done by two expensive attorneys. Finally, they can avoid the cost of failing to reach a final agreement and having to hire new attorneys and go to litigation. Generally, a trained FP can help the parties understand the financial issues and see the benefits of reaching agreements on various issues. Adding a Financial Professional makes success more likely and less stressful for the parties.

The Challenge of Parenting as Families Change

Many divorces, and some post-divorce situations, involve parents who have good intentions and motivation, but just aren’t sure about what they can do to create the ever elusive “quality time” when they are with their kids. The reality is that when families split up, most things are going to be different. On top of that, the kids are getting older all the time, so their needs, interests and relationships are changing, independent of their parents’ situations. We really have two worlds changing in different ways at different speeds at the same time.

Parents can’t stop their kids from getting older, but they can adapt their own approaches to spending time with their kids. We all know that spending time is very important, but how to make the most of the time is what parents sometimes need help with. Following are some ideas about how to change time from a quantity to quality.

1. Participate with kids – be active. Don’t leave the kids alone to always entertain themselves, and don’t just sit around with your children. Do active things, such as: go somewhere interesting (to the kids), play outside with them, play games inside with them, visit friends, go camping, ride bikes, walk, hike, run or do other sports. Don’t just watch and supervise; interact and play with the kids.

2. Share interests with the kids. Either become interested in what the kids are doing or develop new interests with the children in sports, hobbies, art, reading, computers, movies, collecting things, etc. Your kids might even adopt some of your activities if you show how they can have fun.

3. Praise your children. Be sincere and don’t go overboard, but give positive recognition whenever you can, especially to reinforce good behavior or activities. Help them study and praise good work and good grades.

4. Look for opportunities for growth. Find activities that can be physically or mentally challenging. Some kids will respond positively to challenges and competition, so keeping score of things may be helpful. Create a competition for book reading (# of books or pages read), exercise, sports or any other activities that interest you and the children. Encourage your children to put forth their best efforts.

5. Develop routines. This applies to whichever home they are in. It helps in many ways to develop routines. Kids will expect and look forward to activities they enjoy. It’s easy to find fun things like movie time, pizza night, a favorite TV show to watch with you, a visit with favorite cousins or friends, going to garage sales, or taking periodic short trips. While not as appealing to the kids, it’s a good idea to have some other things scheduled that are necessary, but less fun, such as doing homework, chores and practice time for music, sports, dance, etc. Doing those necessary activities will help develop responsibility.

6. Help others. There are always opportunities in communities of any size to help others. Volunteers can help in litter clean-ups, food drives, clothing drives, park projects, serving meals at holidays, working at a library, zoo, museum or other public place, doing fund-raising, etc. Children can actually accomplish good things and feel good for their efforts. It’s also a good way for kids to learn about new things and make new friends. On a more personally pragmatic level, children interested in going to certain colleges or in obtaining scholarships are evaluated on their volunteer hours and efforts. It’s never too early to start.

7. Enjoy your time. Think of things that are fun for you and the kids. Be creative. Research and find new activities by checking on the internet and by reading magazines and newspapers for new ideas and new activities.

As families go through divorces and other changes, parents need to develop new ways of spending time with their children. Trying to maintain or recreate old ways of spending time with kids will not work for long. As the kids keep developing their own lives and move toward more independence, parents have to adapt and be creative in order to share fun and meaningful time with their kids. You can make a difference with your children by planning new and fun activities with them, and you’ll enjoy it, too!

What to do If the Attorney General Knocks on Your Door (Figuratively Speaking)

A "knock on the door" from the Texas Attorney General can take several forms: a letter, a phone call to you, a call to your employer or service of papers on you, among other ways. The knock is to notify you that something is about to happen in court or by a court order. If you are a parent, or alleged to be a parent, the knock is probably to notify you either that you are a parent and have an obligation to start supporting a child or children or they want to examine your financial situation and maybe raise your existing child support or they want you to start paying the support that was previously ordered.

What should you do if you get notice in some form from the A.G.’s office?

Contact a family lawyer, and right away. Don’t delay, especially if you find out about a court date. You need to understand the law and what your options are. The A.G. is not involved to help or represent you. They can’t give you legal advice. They are not a completely neutral party in the process. You need your own counsel. You may be able to work out a better deal by resolving the matter before it goes to court, so you should hire an attorney as soon as possible. It may also take a while to gather information and prepare for court.

Why the A.G. Gets Involved

There are numerous ways for the Attorney General’s office to get involved in your business. A parent could request assistance from the A.G. to collect child support. The State of Texas may have initiated the action if some state assistance has been paid to a parent because of a child. Federal and state laws have forced the A.G. to become very active in collecting child support. They help parents who need to get an initial court order designating someone as the father and ordering the payment of child support. They may also help parents collect past-due child support owed sometimes by "deadbeat dads" (or moms), but also owed sometimes by dads or moms who lost their jobs or became ill or for some other reason could not work or had their pay cut. In addition, the A.G. may periodically review cases to see if support is being paid and to determine whether support should be raised or lowered. (They rarely act to get child support reduced.)

What are some of the things that can happen if the Attorney General comes knocking?

1. Obligations can be created. A court can order retroactive child support all the way back to the birth of the child. The obligation usually will extend until the child is 18 or finishes high school (whichever is later) and can extend beyond that in special circumstances. If there is a court order, you will likely be ordered to pay court costs and attorneys’ fees. There will probably also be an order for medical child support: providing or paying the cost for the child’s health insurance and paying a portion or all of the unreimbursed medical expenses.

2. There could be an increase in child support.

3. An enforcement action can have significant penalties. If the court finds a child support arrearage (meaning there is past-due, unpaid child support), a judgment with interest may be entered against the obligor (a nice legalese term for the person previously ordered to pay the money) and there would be an order for payments to be made until the total was paid off. There can also be an order for confinement in jail for up to six months for each proven violation of the court order, although some judges will allow a person to be put on probation or community supervision. Probation permits a person to stay out of jail if they report at least once a month to a probation officer and comply with a long list of other requirements. State law also provides for possible suspension of various licenses issued by the state, including driver’s license and professional licenses, among others.

Cautions

Several things with serious consequences can happen. You can do a lot of damage to yourself by proceeding without representation.

1. Don’t sign anything regarding children or child support without consulting an attorney. You may not understand things very well. The A.G.’s office does know what they’re doing. They are not necessarily trying to take advantage of you, but their objectives and your interests may be different and you may make bad decisions if you proceed without the assistance of an attorney.

2. You might think you can start out at a hearing or court date and then stop it if you don’t like how it’s going. That’s not likely to happen.

3. You may think you can agree to something outside of court and it won’t be binding on you, but it may be binding if you sign it.

4. If you think you can stop everything by just not showing up or by refusing to accept a set of papers, you are wrong and you may end up with a judgment or child support obligation owed by you.

Best advice: See a lawyer immediately!

How to Keep Your Child Out of the Middle

Most everyone would agree that it is a good idea to shield children from most parental conflict. Nevertheless, there are many times during and after divorces when children get drawn into family disputes and end up in the middle, with both sides pulling on them. The following is a brief list of 5 "Don’ts" and a "Do" that may help avoid such situations.

1. Don’t ask the children to decide. In the heat of family disagreements, it may seem simple or fair to just let the children decide where they want to live, or what visitation schedule they want to follow, etc.; parents may feel that’s like having a neutral person make the decision. Unfortunately, that puts a lot of pressure on the children and sets them up for guilt feelings and/or angry parents.

2. Don’t disparage the other parent or his/her family. This can be by direct comments made to a child or it can be done indirectly, such as comments made to others, but overheard by a child. It can also include body language and gestures that indicate disapproval or other bad opinions of the other parent. A child will likely take such actions or words as an attack on him or her.

3. Don’t argue around the kids. Disagreements are normal, even in well-functioning, intact families. Discussions and arguments between adults should take place just between adults, if at all possible. The kids don’t need to be drawn in or manipulated by the situations.

4. Don’t ask the children about the other parent. It’s not necessary for you to know everything that goes on when your children are with the other parent. Children will often tell about things they enjoyed or about big events, good or bad. Children don’t like being grilled about what happens when they visit their other parent.

5. Don’t use the children as messengers. If you want to send a message to the other parent, talk directly by phone or in person, send a letter or send an email. Kids aren’t always dependable anyway. And if you send a message by the children and then the other parent reacts badly when the message is delivered, the children are likely going to feel that they caused the problem.

Finally, something you can Do:

Do take a co-parenting class, preferably with the other parent. There are several good classes available in this area in person and even on line. I recommend the "in-person" class because you can learn more and get specific questions answered.

If you can avoid the temptation to put your children in the middle of adult disputes, your children will be happier and you should have better relationships with them (and maybe the other parent as well). If both parents will take a co-parenting class, all of this advice may be unnecessary!

5 Factors to Consider When Hiring a Lawyer

When you are about to start any kind of litigation (or Collaboration) in a family law matter –divorce, modification, child support collection, visitation, paternity, grandparent access, etc.– you need to have an attorney to help you achieve the best possible outcome. There are some things that people can do without attorneys, including divorce, but there is a risk that important issues can be overlooked or mishandled. At the very least, it is advisable to have an attorney review the situation and look over any paperwork to help you avoid problems in the future. Once you make the decision to hire an attorney in a family law matter, there are several factors which should be considered in selecting the attorney to work with.

Recommendations. Just as in most other important matters, it is often helpful to seek recommendations from people or organizations you trust. There is no comprehensive attorney rating service, so you need to talk to family, friends and others you respect to find attorneys who have worked well with and for others in the past. A good source is attorneys you may know, even if they don’t work in family law; they can usually recommend someone who is a quality attorney. Once you have some leads, you can also look on the internet, especially if an attorney has a web site, to find out about the attorneys.

Qualifications and Experience. If your legal issue is important to you, it is usually best to find an attorney who is a Board Certified Specialist in the field, such as Family Law. Being Board Certified means that the attorney has practiced for at least 5 years, has had substantial experience in the field, has been recommended by judges and attorneys and has passed a rigorous exam. In addition, it is appropriate to ask if the attorney has handled similar cases in the past. More experienced attorneys will not only know the legal issues, but how the local judges generally handle such cases. In other words, they can give you an educated opinion about what to expect.

Cost. Generally speaking, the more experienced and qualified your attorney is, the more the representation will cost. There are many fine attorneys who charge lower fees, so there is not an absolute correlation between the fees and quality. This is just to say that a Board Certified Specialist with a lot of experience will be expensive. Be sure to have a discussion about cost at the initial meeting with the attorney you interview. Make sure that the amount of money you are about to invest is appropriate to the objectives you have in mind and your ability to pay. Because there are so many attorneys available and a wide range of fees, you should make sure you are comfortable with the fee agreement for now and into the foreseeable future as your case proceeds.

Communication Skills. No matter how qualified and skilled your attorney is, if he or she can’t communicate effectively with you, you will not be well represented. It is essential that the attorney actively listen to what you are saying. The attorney should be able to give you direct answers to simple questions. A good attorney can speak plain English and not fall back on legalese. If the attorney cannot translate legal concepts into everyday language, it can interfere with your representation and decision-making. Check the attorney’s written materials, including the fee agreement, hand-outs at the office and the material of his or her web site. If you cannot get a clear understanding of what you are reading, expect problems down the line.

Chemistry. When you meet someone, there is an intangible feeling or impression you receive. For whatever reason, some people just automatically make you feel comfortable and with others, you may have a lingering doubt or concern that is hard to express. I refer to that as my "gut feeling". Others use different terms, such as intuition or instinct. Whatever you call it, you should pay attention. Usually, when you hire an attorney, it is for an extended time and it is expensive. Make sure you feel very comfortable and secure in that relationship. If you have doubts or something doesn’t feel right, you should check with other attorneys. One size doesn’t fit all, and an attorney who is a great match for a friend of yours may not be a great attorney for you. The bottom line is that you want to hire someone who feels like a good match for you.

Hiring the right lawyer is an important step in your efforts to achieve certain objectives through the legal system. You shouldn’t rush or be pressured when choosing a lawyer. Your outcome will be better if you select an attorney who meets your needs and with whom you feel comfortable. You can probably find several attorneys who are technically competent and able to do what you need done, but you should look beyond the basic competence and consider the factors mentioned above in order to find the best lawyer for you and your case.

Myths about Collaborative Law

Although Collaborative Law can be considered a breath of fresh air in the legal system, it is still a relatively new process for resolving disputes in Texas. It’s not widely known, but more and more people are learning about it and requesting that it be used. As the public learns about the process, lawyers are also learning about it and getting trained in its methods.


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.

Show Your Love with a Prenuptial Agreement

In spite of the high rate of divorce seen throughout the country, couples keep getting married, some for the second or third time, some even more times. Divorce, however, is not ignored by the soon-to-be-wed partners, especially those who have been married previously. For people with significant assets, one preventive measure often taken is a prenuptial agreement.

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.

One Solution:

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.

Conclusion

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.

Why You Should Try "Access Facilitation"

In many different ways, the court system in Texas, particularly in Tarrant County, Texas, is moving away from the traditional adversary process in family law matters. The new Tarrant County Family Law Center in Fort Worth could almost be called the new "conference center" because there are over twice as many conference rooms as there are courtrooms in the courthouse. For years, Tarrant County family law attorneys have spent more time negotiating than having hearings, and that’s generally a good thing.

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!

How to Save Money in a Collaborative Divorce

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.

When and How to Settle

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.