Tuesday Tips: Don't Try to Do-It-Yourself Without Your Own Attorney!

In these days with a contagious "do-it-yourself" attitude about so many things, many people have taken that approach to getting divorced.  That may be a mistake, unless it is a very short marriage, with little or no assets, and no kids.

Part of the motivation is to save money.  That's understandable, but keep in mind that you don't have to hire a high-priced lawyer to get good representation.  For smaller estates and parent-child issues, and even for more complicated estates,  younger, less-expensive attorneys can be fully capable of providing quality representation for you.  Just because an attorney charges a higher fee, that doesn't guarantee quality and doesn't mean that attorney is a good match for you.

So you can hire a good attorney and not break the bank. Should you hire an attorney or just go all out to save the money and do it yourself?

If any of these conditions exist, you should probably have an attorney assist you in resolving your divorce:

• You have children with the spouse.
• You or your spouse have retirement assets.
• You have investments.
• You have a house, with positive equity or negative equity.
• You have significant debts.
• You have been married for at least several years.

There are many different ways to handle those issues and you may not even realize the significance of some matters.  There are lots of rules in Family Law. It may not be easy to translate your ideas into legally-acceptable court orders.  If orders aren't drawn properly, they may not be enforceable.  You may lose all rights to some things if you don't deal with them correctly.

Don't assume that common sense applies to the law.

At the very least, you  should have a consultation with an attorney (or several) to check out your options and what their consequences are.  It may save you money in the long run.

Do I Need to Hire an Attorney for my Divorce?

Divorce is rarely easy or pleasant.  In most cases, trying to get divorced without an attorney is harder or has a worse outcome.  Lawyers can be expensive, but not having one when you need one is potentially FAR more expensive.

Here's a brief answer to the headline question.

When You Need a Divorce Lawyer:

• When you have kids.  Some of the worst post-divorce headaches come from disputes over the children.  Child support needs to be calculated correctly and ordered precisely so that the obligation is clear and enforceable.  Visitation/possession periods need to be clear and specific.  General language won't be enforceable and vague language will lead to disputes.
• When one spouse is domineering.  That can be physically, emotionally, or financially.  Where one spouse can demand and get whatever he or she wants, the other spouse needs a lawyer to help equalize the power in the negotiations.
• When there are assets or liabilities.  Normally, there will be assets and liabilities that have to be divided between the parties.  The division is not automatically 50-50.  It can significantly favor one party over the other if there is a big difference in income or income earning potential, or if a party has health issues, or if any of a number of other factors exist.  Plus, some assets are overlooked if the parties don't have legal experience or understand how the law applies to their situation.

When You Don't Need a Divorce Lawyer:

• When you have a very short marriage.
• When there are no assets, liabilities or children.

Those circumstances are rare in divorce cases.  Usually, people stay together long enough to acquire things or children before deciding to pull the plug.

The bottom line is that you almost always need a divorce lawyer, if you want to get things done right.

The answer to the title question is -- Yes!

The Top 10 Reasons Why People Don't Hire an Attorney

Many people facing difficult decisions have a hard time making the decision that they often know, down deep inside, that they need to make. Some people, at the beginning of a divorce or other family law issue, face that dilemma. Intellectually, they know what they need to do -- get started. They also know the first step is to hire an attorney. But, for a variety of reasons, they may have a really difficult time taking that step.

The following are 10 common reasons that people will use to convince themselves, or to give permission to themselves, to delay hiring an attorney. They know that once the attorney is hired, the process will begin. It's sometimes hard to face the changes that will follow, so they take the "easy way out" and put off the decision. If you are in that limbo, check the list here to see if any apply to you as you mull over your options and decide whether to hire an attorney.

1. You have now calmed down after you had gotten very upset following a discussion/argument with your spouse. It is a good idea to make important decisions when you are calm and rational, instead of while you are in the heat of a battle. Maybe it would have been a bad idea to start a divorce. On the other hand, you can think through a decision and carefully weigh the issues, looking at the pros and cons of different courses of action. If you decide against legal action after careful thought after you have calmed down, that likely is the right decision for you.

2. It could be a situation where someone else was pushing you to get started and they are not around now. Everyone has well-meaning "advisors", usually family and friends, who are willing to advise you and try to help you manage your life. Sometimes, without their encouragement and support, it's easy to change course and not do what you probably should be doing.

3. A very common affliction for people needing to make major decisions is procrastination. It seems like some people procrastinate more often than others, but everyone will put off difficult or momentous decisions at one time or another. Sometimes people get caught up in trying to gather all the information they can before deciding or they may come up with other reasons. Get help, if you need it, but make a decision.

4. Some aren't sure what they want to do, so they just want to think about it some more. That may be a form of procrastination, but it can be for other reasons. Leaving a marriage is an emotional decision as well as an rational decision. If a person has not reached the point of deciding that there is no hope for marriage, for example, it is very hard to take the step of hiring an attorney. This is a situation where the person may have to wait a little while and work through the emotions.

5. You can't get off work or you're sick or you have a sick child or other family member. Those are just excuses. You can figure out how to get off work. A sick person will get well or will improve to the point where you can take time away from them, or you can get someone to temporarily relieve you.

6. You don't want to be the one to file first. That is an important decision for some people. They are usually not aware of the fact that there are some advantages in court for being the one to file first. You should consult with an attorney and determine whether the advantages are important enough to you to go ahead and file.

7. You don't think you can get the money together to file. That can be a realistic consideration because attorneys can't work for free. On the other hand, different attorneys charge different retainers and hourly rates. Some may charge flat fees, although flat fees are not bargain rates or cheap -- they are just predictable because the attorney sets the total fee at the outset. The attorney may look over your situation and figure out where your fees can come from. Judges in Tarrant County divorce cases are pretty good about equalizing the fees available to each party. Don't let your perceived lack of funds keep you from talking to attorneys.

8. Your spouse said s/he would try to work out things with you informally or would s/he would "change" and the problems would go away. Maybe those things will happen, and maybe not. It's still best to have an attorney working with you to protect your interests.

9. You're not sure your family will want you to do this or you don't want to look bad to them. That could happen, but your family isn't the one living with your spouse or experiencing the problems you are experiencing. Your family probably doesn't know all the nitty-gritty details and they don't have the same consequences you see.

10. You trust your spouse and believe s/he and her/his attorney won't take advantage of you. Sometimes that works out, but why risk it? Your spouse, and especially her/his attorney, will understand your desire to have someone on your side. If they act upset, chances are they were planning to take advantage of you.

The bottom line is that if you are facing legal action for a divorce or other family law matter, you should consult with an attorney right to learn about your legal rights and opportunities and to discuss possible legal strategies. It is much better to plan ahead and be prepared. I have had people come in a month, two months or six months before filing, and they leave feeling better because they understand what's going on now and what their options are. You should meet with an attorney whenever you are in a similar situation.

Hopefully, this will provide some encouragement so that people will feel strong enough to take the step that will help them in the long run.

What Personality Style of Attorney Do You Want?

It is a fact that every attorney is different from all other attorneys. This is obvious for people who have frequent contact with attorneys. There are differences in knowledge, experience, temperament, interest, connections, confidence, age, reputation, and on and on. On top of the unique characteristics of each attorney, there is the consideration of chemistry. When people look for an attorney, they need to meet with the attorney and get to know him/her. Clients need to make sure there's a good connection on multiple levels.

One of the factors that is often overlooked is how decision-making is shared between attorney and client. Just as in other facets of the attorney-client relationship, there are a variety of approaches. Here are some common ones, from my observation.

Paternal/Controlling/Directing -- Strong, experienced attorney who makes the decisions and then tells the client what to do. These attorneys often feel that it is their "duty" to tell clients what to do, even if the client wants something very different. This is a fairly common approach. The attorney doesn't need to consult with the client to find out what the client wants to do or not do. What often happens, if the attorney finds out the client's feelings, is that the client's wishes are often overruled by the attorney. Sometimes that creates friction between attorney and client. Other times a client feels well protected and cared for. Either way, the result is often a more protracted court case and higher attorney's fees.

Avenging Angel -- Defender of a client perceived by the attorney to be weak and unable to defend her/himself. This is usually a "light" version of the Controlling attorney. Here, the attorney guides and directs the client, but is willing to jump in and make decisions for the client who the attorney believes is incapable or ineffective in looking out for the client's own best interests.

Mouthpiece -- Speaks for the client using the client's words; little input from the attorney. Whatever the client wants, the attorney will advocate it, even if the attorney knows or should know that the action will be counterproductive. This attorney sees him/herself as standing in the client's shoes, doing what the client wants to do, but doing it better -- following the proper legal channels.

Partnership -- Fairly equal participation. This attorney becomes an ally and often is not very objective. The attorney will listen to the client and discuss what the client wants and needs. They will often talk strategy and the attorney explains things to the client, allowing the client to have some input in decision-making.

Goal-focused Facilitator -- Tries to work at a higher level, focusing on what's truly important to the client; gives pros and cons and lets the client make the decision. This attorney works to create an informed and empowered client.

Some attorneys are aware of what type of attorney personality they have, but many are not. Those who are unaware simply believe, based on what they were taught or observed, that their style is the only way (or best way) to practice law.

Some attorneys will switch from one style to another, depending on the circumstances and the personality of their clients.

What should you do about this? Before you meet with an attorney, try to find former clients and others who know the attorney whom you can talk with. When you are interviewing an attorney to hire for a case, ask questions about how the attorney views his/her relationship with the client and listen carefully to how the attorney describes his/her actions in prior cases. What you are looking for is someone you are comfortable with. There's no single right answer for everyone. It's usually best to follow your gut instinct as you decide whether the chemistry is right when choosing your lawyer.

Do You Want a Divorced Lawyer or a Divorce Lawyer?

Ben Stevens of South Carolina has just written a thought-provoking post in his South Carolina Family Law blog about the advantages of having a divorce lawyer who has been divorced. I guess it just depends on one's perspective.

Even though I have never been divorced, I can see some merit in some of his points. He does see things a little differently than I may.

However, with nearly 34 years of representing people going through divorce, I have a pretty good idea of what goes on and I do understand a lot about the feelings involved.

I doubt people choose a doctor by asking if the doctor has had whatever disease or condition you need diagnosed and treated. In fact, you probably want a doctor who is healthy and who has a lot of knowledge and experience in the field you need help in.

When you are choosing a divorce or family law attorney, there are many considerations. How well do you and the attorney communicate with each other? Does the attorney listen to you and really hear what you are saying? Do you want an attorney to tell you everything to do, or do you want to be active in planning and carrying out a strategy? Is the attorney's temperament the style you want? Does the attorney have experience in the type of law you need help with? Is the attorney a recognized authority?

I always recommend that clients look around carefully and research prospective attorneys. There's tons of information on the Internet.

I know I'm not right for some people. At the same time, I can be a great fit for other people. It just depends on what they are looking for.

Should You Hire a Collaborative Lawyer for a Case in Litigation?

An issue that comes up all the time is whether a Collaborative lawyer can or will handle non-Collaborative cases. For me, the answer is yes. Some people just assume that a Collaborative lawyer will no longer participate in litigation. That is true for some attorneys, but (at this point in time) all Tarrant County divorce lawyers who are trained in Collaborative Law still handle litigation, and that is true of most Collaborative attorneys in Texas. You can just ask an attorney if you wonder about it.

A related issue is whether it is advisable to hire a Collaborative lawyer to handle a litigation divorce. Some people may have a vague fear that a Collaborative lawyer would be unprepared, uncomfortable or unable to function in a litigated case. That is a misplaced fear. Actually, the main difference is that Collaborative attorneys have extra training and experience in negotiating that some litigation attorneys don't have. Which leads to the question: How are the extra training and experience an advantage in litigation?

Let preface my answer by briefly explaining how Tarrant County divorces work, which is essentially how they occur in many of the other counties in Texas. In a litigated divorce, here are the basic steps that are commonly followed:

• One party files for divorce, gets a restraining order signed by the judge and then gets a temporary hearing scheduled. It is usually set 10-14 days after the filing date so that there is time to get the other party served with papers.

• The other party receives the papers, usually from a process server. The papers are a petition for divorce, restraining order and notice of the hearing. There will be a citation explaining the need to respond to the petition.

• If there's enough time, the two sides will sometimes negotiate before going to court to start to work out temporary or interim orders.
  

• Both parties appear at court on the appointed date. They, or their attorneys, negotiate. Although the event is called a "Temporary Hearing", there usually isn't a hearing. Cases are usually set at 8:30 or 9:00 a.m. and often the parties spend all morning at the courthouse negotiating.
  

• Negotiations can involve meetings with the judge and occasionally end in a bench conference with the judge, attorneys and parties. Even then, usually, most issues have been resolved before the conference begins and the attorneys usually only submit a few issues. Sometimes, there are negotiations in the judge's office with just the attorneys and judge present.

• After the judge decides or gives suggestions or an advisory opinion, there's often more negotiations to iron out the inevitable few remaining details.

• Temporary orders are drawn up and signed.

• The parties then begin to gather and exchange information, either informally (sometimes) or through the formal "discovery" process. In discovery, written requests for information are sent to the other party that require that other party to produce various and extensive types of information to each other.
  

• A trial date is usually set about this time, often many months away. Before the trial date, virtually every court requires mediation in almost every case. Mediation is not attempted only in the most unusual circumstances.

• Mediation occurs. It's usually either a half- or whole-day marathon in which all remaining issues in dispute in the divorce are to be resolved.

• Mediation usually works in around 90% or more of the cases. If it doesn't in a particular case, the case eventually goes to trial, although there's always the proverbial "courthouse steps" for final negotiations, and such negotiations are often successful.
  

You may have noticed that the common denominator in the above summary is the repeated occurrence of negotiations. The bottom line is that whether you end up in litigation (either by choice or otherwise) or Collaboration, you will be participating in negotiations.

Now, back to the question of the day: Should you hire a Collaborative lawyer for a non-Collaborative case? Here are some things to consider:

• Is there a good chemistry between you and the attorney?
• Does the attorney listen and communicate well?
  
• Can you afford the attorney?
• Does the attorney have the level of experience you require for your case?
• Is the attorney a Board Certified Specialist in Family Law?
  
• Is the attorney local and familiar with the judges and other attorneys?
• How would the attorney approach negotiations in your case?
  

Ultimately, you need to decide if there is good chemistry between you and your lawyer. If you don't feel good about how the attorney communicates or the strategy the attorney proposes, try another attorney. Even excellent attorneys are not always a good match for some people. And don't worry about hiring a Collaborative lawyer in a litigated case -- it may be one of the best decisions you have made.

"I Want the Meanest Lawyer I Can Get"

Sometimes I'm asked if I can be mean in a divorce case. Some prospective clients will call or come in and say that they want or need a really mean lawyer because the spouse is really mean or has cheated on them (and deserves punishment) or the spouse has hired a really mean lawyer.

I was recently in a divorce case that took about five years to complete. We had two full trials, numerous temporary hearings, lots of written discovery, several depositions and two trips to the Court of Appeals. The other side hired, and somehow paid for, a very good attorney who used a strategy of being mean and aggressive toward my client. In the end, the wife got approximately what we had offered and what my client proposed in trial. It only cost her twice the attorney's fees that my client paid and she left with a mountain of debt. She was distraught through most of the process, but she kept paying for her attorney to maintain an aggressive and bruising attack. The problem was that she didn't come out ahead. She'll probably blame the court system, her attorney, her spouse or anyone else, except for herself. That's usually the way it works out.

Although I can normally represent someone effectively in any divorce circumstances, I usually refer those prospective clients (who are seeking a mean lawyer) on to someone else because there's no way to really satisfy such a client. No matter how mean and unreasonable I act, the client will pick out the tiniest detail and convince himself or herself that things are not going his or her way, despite the fact that the client may have gotten 75% or more of what he or she wanted.

Besides, being mean just doesn't pay off in court. Judges and juries don't like it. A client may feel a little satisfaction about humiliation or suffering being heeped on a spouse, but that is a fleeting experience. Being rude and obnoxious just doesn't score points on legal issues or establish facts needed by a decision maker. All other things being equal, a party utilizing a strategy of being mean or rude will rarely get the benefit of a doubt.

In addition, the spouse's attorney will probably be under pressure from the his/her client to retaliate. That means the strategy will result in escalating meaness and that both parties will end up being the targets of personal attacks. Usually an attorney who specializes in being mean has just two strategies: being mean or being meaner.

Another consideration is that being mean is expensive. An attorney can be mean by creating a lot of work for the other side, such as extensive discovery requests and depositions. Sending lots of letters and scheduling a lot of court hearings also can be mean behavior by the attorney, but they will increase the cost to the client. All of the activities and little tricks have to be paid for.

Ultimately, very few clients just want to jerk around their spouse. Most everyone, at some level, wants to get the divorce over with. If a client is interested in finishing the divorce quickly, being mean is probably a bad strategy because of all the extra work. The process will be slower. Additionally, being mean often leads to similar behavior in return and bad results.

The bottom line is that it is a complete waste of time, money and energy to choose a strategy of being mean; the costs will greatly outweigh the benefits. If you are looking for that approach, I'm not the one to help you.

How to Interview Your Lawyer

When people realize they need to hire an attorney for a divorce or some other legal matter, they begin to search around to find one. They may know one or get recommendations or research on the Internet. There are lots of sources of information about attorneys. At some point, the prospective client will set up a time for a first meeting with an attorney to decide whether to hire the attorney and to find out if the attorney is willing and able to take the case. The first meeting between attorney and prospective client is very important for both parties who want to size each other up. Gathering records and making a list of questions are very helpful for the meeting, but there are some other steps to prepare that shouldn't be overlooked.

I have just read an excellent post, by Chris Marston on another blog, about the interviewing process. Although the post in Inside the Firm of the Future is technically about lawyers interviewing for employment at a law firm, it sparked some thoughts about how clients might benefit from some of the techniques when they are first meeting with a lawyer. Incidentally, the tips are also very useful for almost anyone looking for a job -- a topic that I know often surfaces during or after a divorce. At any rate, here are my five slightly modified tips, based on Chris Marston's great post.

1. Differentiate Yourself. Some attorneys will take on any case that comes in the door. Others will accept only clients that meet their standards who have interesting cases. It's a good idea to explain to the attorney what unique qualities there are about you and your case, especially if you want or expect special attention. You should not assume that any attorney you visit will automatically accept you as a client.

2. Do your Homework. With the Internet, it's possible to find out a lot about almost any attorney. If you do a search and can't find anything, you might wonder how they have remained out of sight. You can also ask around if you know other attorneys or business people or professionals who might have had dealings with the attorney. Find out what kind of practice the attorney has and what organizations he or she is a member of. Make sure the attorney is experienced and works with the type of matter you have.

3. Get over Yourself. Don't just talk about yourself. You do need to give some background, but be prepared to discuss the overall issues and your goals. Think about what you want and need for the future. Be prepared to discuss everyone and all the issues that may arise in your case. While it's sometimes good to interview several attorneys, be sure to adapt your approach for each one.

4. Interview THEM! While it is important to provide information about your case, it is also important to find out if the attorney is a good fit for you. Believe it or not, every attorney has a different personality and each handles business differently. That means that some attorneys will be able to work with you very comfortably, but others won't. It's really better for everyone if you can be upfront in explaining how much communication and what type of communication you want from your attorney. Do you prefer an associate or assistant or the main attorney to contact you? Do you want periodic calls? Can there be too many letters from the attorney? (Some clients have requested that we cut back on some mailings, even when there's no cost involved.) Find out what the attorney's policies are on these and other issues that will affect you. If you aren't familiar with the legal procedures, ask for clear explanations. Make sure the attorney can speak to you without resorting to legalese. Do you really understand what the attorney is saying? Feel free to ask lots of questions!

5. There is only ONE right answer: Be Yourself. Don't try to impress the attorney or to hide your warts. In family law, we understand about people's imperfections. It is much better to admit to any problems up front so the attorney can help you. Surprises are not good in the legal system. There are often many ways to resolve or work around problems, and often what you think is terrible will be no big deal to the attorney. Many people are their own worst critics, but shouldn't be. Other people have been told by their spouse or other family members over and over how terrible or worthless they are, and they sometimes start to believe it. Don't worry about being embarrassed. Experienced attorneys have seen and heard much worse in all likelihood.

Again, if you are looking for a job, read Chris Marston's original post. If you are looking to hire an attorney, try out these suggestions. Thanks to Michelle Golden at Golden Practices for the tip about Chris' post.

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.

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.