5 Types of Divorce Processes

If you are looking to get a divorce, there are many decisions to be made.  Among them are the type of process you will use.  Yes, there's more than one way to get a divorce.


1st Decision:  Lawyer or No Lawyer?
Hopefully, you will go see a lawyer and get advice, but you do have the option of representing yourself.  While there are free or low-cost forms available to do your own divorce, you should carefully consider your decision.  There are some circumstances where it is difficult to afford to hire an attorney, but I do recommend that you find a way to hire one unless yours is a very short marriage and you have no children and no significant property.

2nd Decision:  You have a range of processes for handling divorces.  How do you want to approach this?

• Kitchen table.  At one end, there is negotiation around the kitchen table, a very informal way of coming to agreements.  In some cases, that works out well -- short marriages, no kids, few assets and a civil relationship between the parties. Hopefully, both parties know all the financial facts and understand them.

• Mediation. Another option is mediation, with or without attorneys.  I have seen enough non-attorney agreements to believe that you really need to have an attorney present at the mediation or at least the advice of an attorney throughout the process.  Otherwise, the result may be appealing but not workable. 

• Litigation.  This is the default approach where the parties file suit and go to court.  They have temporary orders hearings and go through a formal Discovery process to request, receive and exchange information and documents.There are often multiple hearings and various pleadings generated.  Eventually, if the case doesn't settle by discussions between the attorneys, it will usually go to mediation.  If that fails to settle the case, trial is the final step.

• Collaborative Law. Finally, there's Collaborative Law where the parties each have attorneys and agree to not go to court.  Instead, they conduct a series of meetings and work with a neutral therapist and neutral financial expert. The parties work cooperatively with the experts and their attorneys to gather any information needed and then work out agreements based on their specific needs. A lot of the preliminary work is done by the neutral experts which saves money and produces quality results.

How do you decide which process to try?  Talk with an attorney and figure out what best meets your needs and abilities. Be aware that some attorneys don't do Collaborative Law and they may try to steer you away from it.  Make sure you are meeting with a Family Law attorney who actually handles Collaborative cases. You can ask how many Collaborative cases the attorney has handled and when the attorney has attended training for Collaborative Law.

While Collaborative may not work for everyone, if the attorney tries to talk you out of using it, go to a different attorney for a second opinion. You may decide to not use Collaborative Law, but you should at least get good information when you are deciding.

Keep in mind that there's no single right answer on how to proceed.  Do yourself a favor by researching processes and attorneys ahead of time, if you can.  Think about how you want the divorce to end up, and then choose the best process to meet your objectives.

What if You Don't Like the Judge's Ruling?

When you turn your case over to a Judge for a ruling, there's about a 50-50 chance that you will be disappointed or upset by the result.  No matter how right you believe you are, the Judge may see things differently and rule against you.  After years of experience, I think I'm pretty realistic, but I still get surprised when a Judge's ruling is issued.

So,what can you do if you don't like the Judge's ruling? Here are three of my rules to think about.

Rule #1:  Don't tell the Judge.  Some people get incensed by the unfairness,  baselessness or stupidity  of the Judge's decision and they want to immediately speak up and argue with the Judge.  That works about as well as arguing with a baseball umpire or a referee in football or basketball.  It's not going to change the result and could get you thrown out of the game (held in contempt and sent to jail).  Let your attorney handle it!

Rule #2:  Be able to handle adversity.  Remember the old Rolling Stones song, "You Can't Always Get What You Want"? That's a true statement that people in the midst of a divorce often forget.  Judges have a lot of discretion on most issues in a divorce.  There are no guarantees of outcome when you go to court. Judges almost never rule 100% for one side.  Be prepared to lose some issues. If you get an adverse ruling, your lawyer can help you figure out the best way to handle it.

Rule #3:  Maybe you can still get what you need.  (Again, from the  Rolling Stones.)  You may have to make the best of the situation, and maybe that will turn out to be enough.  Usually, there's more than one way to do things and your attorney can help you figure out alternatives. Your new plan may not be as nice and easy as what you envisioned, but you can make it work.  Don't be discouraged.  Just keep thinking of other ways to meet your needs.

Generally, it's better to work out agreements outside of court.  If you get stuck and have to go to court, be prepared for things to not go your way.  Let your attorney take the lead and be willing to try new ways to meet your needs.  Good luck!

How to Avoid Financial Mistakes in Divorce

If you are facing a divorce and are worried about how you will come out financially, you are not alone!  Most people who think about their future want to make sure that the divorce process works to protect them from being taken advantage of and from missing out on something they are entitled to have.

Karen Covy has an excellent blog and website  that discuss various aspects of getting divorced. In a recent post, she wrote about "10 Financial Mistakes in Divorce You Don't Want to Make".  She listed 10 important issues and it turns out that  Collaborative Law is an effective process to address each of them.  Here are her issues:


1.  "Not taking the time to do an accurate post-divorce budget BEFORE you settle!"  We normally use a neutral financial professional for both parties and one of the standard steps is to prepare a budget for each party for after the divorce.  That helps everyone address the needs of each party as we work out a financial agreement.

2.  "Not insisting on getting all of your (and your spouse's) financial documents."  In Collaborative cases, we start with getting the current statements for all financial accounts and then get any other prior statements that are really needed.  We don't request statements just to request them.

3.  "Not getting assets valued."  If an asset, like a house, business or painting (or anything else) needs to be valued, we get a neutral expert for both parties to do the valuation.  If it doesn't matter or if the parties agree on the value, we don't spend the money to get a valuation.

4.  "Not looking at (and understanding!) all of your financial documents."  One of the great benefits of Collaborative Law is having the neutral financial professional who gathers, studies and organizes the financial records.  Either party can discuss the finances and get help understanding them.  The finances are also discussed extensively in joint sessions.

5.  "Relying on your lawyer to do everything."  In Collaborative cases, we make sure the parties are very active and participating in the preparation and in the discussions at joint meetings.  Most often, we have the parties meeting, without the lawyers present, with the mental health professional on children's issues and with the financial professional on financial issues.  There is a lot of work done without the lawyers being present.

6.  "Not understanding how taxes will affect your support and settlement."  We also discuss taxes and can arrange for a neutral tax expert if specialized knowledge is necessary. When we discuss alimony and property division, taxes are always a consideration.

7."Forgetting about the long term."  Collaborative professionals are very aware of the long-term implications of the negotiations and we can do projections into the financial future.  Considerations for retirement income are always very important.

8.  "Not thinking about insurance."  We look at insurance as an asset and also as a safeguard.  Insurance can be considered in the context of a long-term plan, but it's also the back-up for financial obligations that may continue after the death of a party.

9.  "Sacrificing your own financial security for your children." We try to be as realistic as possible in working out agreements.  There are many different ways to pay for the children's expenses and Collaborative Law provides more flexibility than Litigation does.  It is possible to protect your own financial needs while making sure the kids are provided for.

10. "Making settlement decisions out of exhaustion."  In Collaborative cases, we have a series of meetings, usually an hour and a half to two hours long.  In mediation in Litigation cases, the sessions are usually a half day or a whole day, which can be exhausting.  In court, you are likely to spend a half day to several days or a week.  Collaborative Law provides a safe, measured process without the pressure to get everything done at once.

Bottom Line:  If you have serious financial concerns, be sure to investigate Collaborative Law.  Talk with an experienced Collaborative lawyer.  You should get a second opinion if an attorney mentions Collaborative Law on a web site, but then spends the consultation time trying to talk you out of using the process.  With a lawyer like that, be sure to ask how many Collaborative cases the attorney has actually handled.  Before you decide, talk with a real Collaborative attorney.

Starting Over After 50

There seems to be a lot of discussion about people over 50 years old getting divorced now.  Of course, there are a lot of Baby Boomers who are still alive and in relationships.

• Many of them are suddenly facing a divorce they hadn't planned on.  
• The flip side is that many Boomers have finally decided to go forward on the divorce they kept thinking about, but which they just couldn't face.  
• And some couples in second or third marriages are also facing divorce as they pass 50 years of age.

All of these people face somewhat similar circumstances.  If you find yourself in such a situation, here are some suggestions to help you get through the process.

1.  Shock or relief.  The first stage, after at least one spouse decides to leave the marriage, is shock, if the other spouse somehow isn't expecting it, or relief, if the spouses have been discussing the decision openly until one or both commit to ending the marriage.  It's a difficult decision for so many reasons.  Once that decision is made, both parties need a little time to let it sink in.

2.  Fear.  A common second emotion is fear about the future.  Past plans come undone.  Finances get stretched thin and new arrangements need to be made. The need to work may put off retirement and will affect spending.  Relationships with grown and nearly-grown children may change and will probably be a little awkward for a while.  So many things that are taken for granted suddenly have to be changed.  There's a lot to be concerned about.

3.  Recognizing opportunities.  With the changes comes some new freedom to change course and try something new. Most people at 50 will still have 30-40 more years to live. You can move to a different job or another town or a new neighborhood.  You might downsize and streamline your life.  New hobbies and activities are possibilities.  You can also make new friends.

4.  Start with small changes.  With so many new and different directions you can take, don't go crazy and completely start over.  Generally, you will be more comfortable with adding small changes at first and then making bigger changes as you get used to new arrangements.  Everyone needs some stability which can come from some carryover aspects of your life.  Especially -- Don't rush out and get remarried.  Take your time and get to know the person.  There's plenty of time!

5.  Expand your horizons.  Use this opportunity to try completely new things that maybe you couldn't do while you were married.  You don't have to re-create your old married life.  Try some new interests and make some new friends.  Take some classes.  Reconsider your assumptions about how you want to live your life.  This could be the beginning of an interesting new life.  If you don't want to do a lot of new things, you still can have a fresh start to some old activities.

One other thought:  If you are facing divorce after 50, you should look into using the Collaborative Law process for a civilized, less-destructive divorce.  Be sure you talk to a trained Collaborative attorney who actually handles Collaborative cases.  Collaborative Law won't work in every case, but it will in a great number of them.

Are You Ready to File?

With the holidays behind us, you may be ready to file for divorce.  Of course, it's one thing to be emotionally ready and another to actually file.  Here are some practical considerations if you think you are ready to file for divorce.

1.  Decide on the timing.  You have already made it through the holiday season and that's usually a good idea.  Now, you need to think about whether you have your life in order.  Do you have a job?  Do you have money available to pay for the divorce?  Do you have information on the finances?  Do you have your personal effects secured so that they don't happen to "disappear" later?  Have you planned where you would live and how you would pay your bills? It's important to plan ahead for many different issues.  Don't start until you are ready.

2.  Decide on the process.  You need to know that, even though every divorce must be filed at the courthouse, you can work through reaching the final terms in a variety of ways.  In extremely rare cases (when both parties are friendly, knowledgeable and cooperative), you can just negotiate directly with your spouse and reach agreements.  At the other end of the spectrum is the standard litigated divorce, which is often the most contentious and expensive approach.  In between is the relatively new process of Collaborative Law in which the parties work out an agreement through a series of meetings out of court.  You can read up on the options and you should probably talk to a trained and experienced Collaborative lawyer.

3.  Find and meet with an attorney.  Although many people are opting for the "do it yourself" approach, that is probably not your best bet if you have children or assets, including retirement plans, real estate or investments, among other things.  Unless you have had an extremely short marriage or you have no assets, you probably should at least meet with a lawyer.  My suggestion would be to meet with an experienced Collaborative Law attorney to find out your full range of options.

Good luck getting started!

Don't Fear Mediation!

Almost every litigated divorce will end up in mediation, unless the parties can somehow come to agreement just by talking directly or talking through the attorneys.  Because those voluntary agreements are very rare and because trials are expensive and involve a long wait, most divorce cases are resolved through mediation.

Texas Mediation.  In case you aren't familiar with mediation yet, it is a negotiation and settlement process in which both sides work with a neutral third party, the mediator.  In Texas, or at least North Texas, most family law mediations involve each party sitting with their lawyer in a separate room and the mediator going back and forth between rooms.  Sometimes, the parties and their lawyers all share the same room with the mediator, and that can be effective, but most of the attorneys prefer to have the separate rooms.

The main reason mediation is used so often is that it works.  Here are some key points to know about mediation.

1.  It's voluntary.  No one imposes a judgment or just makes a decision that binds everyone.  There's no "decider", other than both parties.  To have an agreement or resolution, both parties must come to the same agreement.

2.  It's confidential.  What's said and done in mediation stays in mediation.  You can make statements and propose agreement terms and they can't be used in court if the process fails.  You have more freedom to be creative and not have it come back to bite you. That helps make the process safe.

3.  The mediator is neutral.  The mediator doesn't make a decision and doesn't take sides.  The mediator's role is to facilitate communication and keep the parties talking. The mediator will play the "devil's advocate" and try to help each party better understand the other side's positions, but the mediator won't work for one side against the other. Neutrality also helps make the process safe.

4.  You can learn information in the process. Frequently, facing mediation encourages both sides to update information and look at all the issues.  Parties can learn a lot about the side's issues and about property and other matters that may not have been fully disclosed or answered previously. Exchanging information is a major part of mediation.

5.  It's cheaper than a trial.  While there is definitely a significant expense associated with mediation, from the mediator's fee to the attorney's time at mediation and preparation, a trial is still generally more expensive.  With a trial, there's more preparation, with several special documents normally required to be prepared.  A trial will usually be the same amount of time or more, but the preparation time is much greater.

Don't fear or be anxious about mediation.  Look forward to it!  You can expect to get your litigation over so you can get on with your life.  Good luck!

Getting Through the Holidays -- Post Divorce

If your divorce is final and you are now facing the major holiday season, there are lots of adjustments for you to make.  If you have children, you have to work with them to both keep some of the family traditions and create some new ones.  Even if it has been several years since the divorce was finalized, holidays can still be a difficult time.

With that in mind, here are some tips on how to deal with the holidays.

1.  Start by checking the court order on scheduling.  Is it your year for Thanksgiving?  How is the time allocated when the kids are out of school?  You probably don't have to stick with the official schedule if you and your ex both agree on something else, but it's a good starting point.

2.  Go ahead and send any notices that are required.  Some orders provide that one parent must notify the other parent by a certain date if they are going to have the children or if they are going out of town or perhaps for some other reason.  It doesn't hurt to send a notice early and that could give early warning which might help avoid conflicts later.

3.  Make reservations, if you are traveling.  With the way hotels and airlines book up early, it's a good idea to start as soon as you can. You can get a better deal, plus it's a good way to reinforce with your ex that the children will be with you at certain times. It will also be less stressful for you if you have reservations worked out early.

4.  Be prepared for compromises and last-minute complications.  It's not always the fault of your ex.  Sometimes, kids forget to tell their parents about plans, projects or messages until the last minute.  Don't get angry if something comes up.  Be willing to talk things through and find a solution that works for the kids, and hopefully, both parents.  Consider meeting with a counselor, if there's time.

5.  Be flexible.  Remember that kids are young for just a limited time.  Both parents should work together to share that time and make things right for the kids.  There are always alternatives that can be found.  If you find out about conflicting plans or other problems, don't blow up.  If you find out early enough, you can work with a counselor, attorney or mediator.  If it's a last-minute issue, and you can't figure out a solution, call an experienced attorney who can brainstorm with you and maybe tell you what others have done in similar situations,  Be open to compromise.

The keys to having pleasant holidays include planning ahead, working through conflicts and being flexible.  Start early in dealing with how you will be sharing time with the children.

5 Tips for Successful Divorce Mediation

If you are getting a divorce and are getting ready to try to settle the case, chances are you are about to go to mediation.  In Texas, mediation usually involves both parties and their attorneys attending a single session of mediation, although it may be for a half day or a full day.  No matter the length of time set aside, here are some helpful ideas for preparing to attend mediation.

1.  Preparation:  Each party should meet with his/her attorney and go over the rules for mediation and how the process works.  It's not rocket science, but you will probably be more comfortable if you know the process ahead of time.  In addition, each side should have a current Inventory of assets and liabilities with supporting documents.  It also helps to put yourself in the other party's position and try to understand their motivations and objectives.

2.  Plan:  It really helps if your know where you want to end up.  You should figure out an appropriate opening position and plan how you can reach the preferred result.  Try to think of alternatives you can offer.  Be open to changing your plan, but you'll have a better chance of getting a good result if you plan your path.

3.  Don't assume:  It's easy to assume things will happen a certain way and it's easy to assume the law will do certain things, but those assumptions may not be accurate.  It's better to  spell out everything and don't rely on shortcuts.  Be precise and complete so there's nothing left to negotiate later.  Don't stop with an incomplete agreement.  Don't assume that everyone will be cooperative later just because they are at the end of mediation.  Go ahead and invest the time to decide all necessary details while everyone is getting along, even if you are tired.

4.  Read it all:  Read the entire agreement and make sure you understand it before you sign it.   Don't trust that everything is written correctly just because it was discussed for a long time.  Read it and think about how problems could arise.  Think the worst.  Expect difficulties and think about how they might play out under the agreement.

5.  Don't sign until you're sure:  Remember, once everyone signs, there's no undoing it!  There is no cure for buyer's remorse once the document is signed.

Mediation is a great way to resolve disputes.  Please invest time and take it seriously.

Don't Try These at Home: Good-Sounding Ideas that Lead to Conflict

Although I am all for compromise, creativity and maximum contact with the kids for both parents, I have to recommend against using the following, based on my experience in actual cases.

1.  Frequent phone calls to the children.  Many parents want to be able to call the children, or worse, want the children to call the parent, every evening or at other times and frequencies.  Almost always, that leads to arguments.  The parent who has the children doesn't want to interrupt their activities.  Sometimes the kids are out somewhere, but the other parent doesn't believe it, or sometimes the parent in possession intentionally makes it impossible for the other parent to talk with the kids. Often the kids don't want to stop playing, watching videos, texting or talking with their friends, even doing homework, in order to talk with the other parent.  In some situations, the parent with the kids sets up something that conflicts with the scheduled call time so the kids are available or the kids don't want to stop what they're doing.

For some parents insisting on the calls, it's a control scheme.  They want to lock down the other parent and prevent them from being able to plan activities at certain times and they like to threaten court action against the parent in possession

There are so many different ways that problems come up, it's generally  better to not require such calls.  Another alternative, depending on the age of the children, is for the non-possessory parent to provide cell phones to the children.  Then, the kids can call or text the parent or the parent can call or text the children anytime.

2.  Right of first refusal.  While it sounds like  nice idea for the non-possessory parent to have the right to take care of the children if the other parent won't be around to care for them for a while, the devil is in the details.  How much time is needed to trigger the provision:  2 or 3 hours, 6 hours, overnight?  What are the notice provisions?  What if the kids just want to spend the night with their friends or other relatives?  Why shouldn't grandparents get some time with the kids?

While this sounds like a parent wanting to spend more time with their kids, it often is a control mechanism as well.  It's a way to isolate children from one side of their family if they don't get to spend the night with relatives.  There is frequent conflict over how the right of first refusal applies in a given situation.  A big part of that is threatened litigation and punishment.

Given the fighting and stress over this issue, you should think twice before incorporating it in a court order.

3.  Weeknights in the summer.  In the Texas standard possession order, the non-possessory parent usually gets the children every Thursday night during the school year.  It's limited to the school year because the schedule changes so much in the summer when each parent can have the children for 2 to 3 to 4 weeks at a time.  Adding weeknights in the summer ends up potentially shorting the time of the possessory parent.  I have seen a schedule where the schedule was manipulated and planned so carefully that the possessory parent ended up with only about 4 days total in June and July.  That's not right for the parent or the children.

Extra weeknights are not needed for the summer.  The standard possession schedule gives plenty of time for each parent and it doesn't encourage fighting or greed.

These are all three ideas that sometimes can be good for both parents and children.  However, I recommend against using them because most often they lead to conflict that could be avoided.

Creative Ways to Pay Your Attorney

One of the main reasons why people change attorneys in the middle of  divorces and other court cases is inability to pay for the attorney.  Attorneys prefer to not withdraw and often will be patient up to a point, but they can't work and not be paid.  It's best to deal with the issue early on.

What can you do if you think you can't afford to pay your attorney?  Here are some options to consider.

1.  First, do a realistic evaluation up front.  Sure, you want the best attorney available, but can you afford that attorney? Look at your income and resources, including the suggestions below.

2. Find an attorney you can afford.  Did you know that there are a lot of very good attorneys around who would be happy to represent you?  A higher hourly rate doesn't necessarily mean an attorney is the best one for you.  There are many good attorneys who charge a variety of hourly rates.  Don't stop with the most expensive attorney.  Try to start off with an affordable attorney you have good chemistry with.

3.  Some attorneys will work out a payment plan for you.  Some don't.  It's a good discussion to have up front, rather than waiting until you fall behind on payments.

4. You may be able to pay a flat fee for services.  Very few attorneys do that, but some will.  I have done it in contested cases with payment in stages, and that can work out. Keep in mind, "Flat fee"  doesn't  equate with "cheap".  The fees may sound high all at once, but there is certainty about the total amounts to be charged and you can plan how to pay it.  It's another good discussion.

5. Most attorneys will take credit cards for payments of attorney fees.  It's not exactly free money, but it can help you manage the payments.

6. You might be able to get money from your spouse by agreement or court order.  If there's money available, most courts will try to get attorneys paid so the parties can be represented.

7.  Maybe you can take funds from an asset.  There may be bank accounts, investments or other savings that could be tapped. If there's an injunction or restraining order, you may need permission to access some funds.

8. Maybe the attorney could be paid from the proceeds from the sale of  your house, if it's going to be sold.  That would take agreement by all parties and attorneys, but it's frequently done.

9.  You could take out a loan from a bank or a 401K account or use a line of credit. If there are court orders in effect already, make sure you get permission and don't violate the orders.

10. You may need to borrow from family or friends.  No one likes to do that, but it might be your only option.

As you can see, there are potentially many different ways to pay attorney's fees.  The best approach is to talk early and often with your attorney about the fees so payments can be managed.