Ending a Long-Term Marriage -- 5 Fallacies

Many couples, later in life, are facing the end of their marriages.  It seems to be more and more common for Baby Boomers to decide to divorce in their 50s and 60s and later.  That decision creates many new challenges for both parties, but especially for one party if she or he was not the initiating party.  Divorcing is not too difficult if both parties are emotionally ready for it and want to be divorced.  The biggest problem comes when one party is surprised by the other party's decision to start a divorce.

When one party reaches the point of committing to a divorce, and the other party doesn't know it's coming, there can be some big problems for both parties.  Sometimes the signs are there, but a spouse just doesn't want to acknowledge them.  Hiding one's head in the sand will only work for so long.  Eventually, everyone has to face the situation and start making difficult decisions.  Acceptance doesn't come easily for many people.  They deny that the divorce is going to take place, or that it should, and then later will fight to punish their departing spouse.

The spouse initiating a divorce, when the other spouse is surprised, often has some very wrong ideas about what to expect.  The initiator often has spent a lot of time reviewing the situation and has some up with some very logical plans for ending the marriage.  Sometimes, the plans are very selfish, which makes them a hard sell.  Other times, the plans are generous, but even those may be hard to promote.  Unfortunately, logic usually doesn't work, at least initially, when dealing with a very emotional spouse.

Here are some false expectations that are common at the outset of a Baby Boomer divorce later in life.

1.  This can be quick.  It almost never is, and it won't be if the other spouse isn't ready emotionally.  Unless there have been a lot of productive discussions in advance, it will probably take quite a while -- a year or so in litigation; probably less in Collaborative Law.  Aside from the emotions, there's a lot to unravel after a long marriage.  Quite often there are children, some minor and some adult, and provisions are usually made for them.  In addition, planning for employment and retirement for the spouses can be very challenging, especially if one has been a stay-at-home parent.

2.  It can be cheap.  That partly depends on how much fighting is going on, which is affected by the emotional readiness of each spouse. In addition, the parties will be dividing up assets and suddenly will be facing the "golden" years without half the gold they accumulated and planned with over the years.  Retirement plans and housing get drastically changed.  In addition, the costs of a divorce can be substantial if there is a lot of fighting or there are a number of assets that require expert valuations.

3.  It's easy.  After a long-term marriage, there are many, many connections and dependencies which have to be undone or compensated for.  Over the years, parties make a lot of assumptions about their future, and now new plans have to be made.  Complications come from age, health, unemployment, outdated job skills, shrinking  retirement funds and insurance issues.  It will not be simple.

4.  It can be painless.  Sure, if everyone agrees to get the divorce and instantly agrees on the terms.  Of course, that never happens.  Most often, the "leavee" is angry and out for revenge, or at least a lopsidedly-favorable settlement.  Usually, the initiator pays for the break-up, even if the the other party is partly or wholly at fault.  Remember, logic has little or no place in divorces.

5.  A party can just walk away.  It's never that easy.  There will always be ties -- financial connections, family relationships, children, and friends, among other ways.  Unless both parties are emotionally on the same page, expect trouble!

Suggestion:  Consider using Collaborative Law to help deal with the emotions and the varied financial issues that Baby Boomers face when they divorce later in life.  That's smarter than trying to handle this by yourself or going through litigation.

What to Expect in Mediation

This post is a very broad look at mediation as it is practiced in Texas, specifically in Tarrant County, Texas.  Please don't assume that my comments accurately describe mediation as it is practiced in other states.

1.  Who is the mediator?  The attorneys in the case will normally choose the mediator, although the judge in the case might make the decision.  They consider mediators they have had success with, ones with personalities compatible with the parties or ones with special knowledge or experience with the issues that will come up.  Most often, the mediators are local attorneys.  Sometimes they are retired judges.  In some cases, two mediators are used.   Mediators are specially trained in mediation and family law.  They normally have strong communication skills and are very good listeners.

2.  What is the format?  In Texas, most cases  use the caucus system which means that each side is in a separate room and the two sides don't usually come into contact with each other during the mediation.  Each side has their own attorney who actively participates in the process.  In other states, the mediation takes place in joint sessions and attorneys don't participate in some areas.  Mediators can work under either system.  In the beginning, the mediator introduces himself or herself to the parties and gets some general information.  The mediator asks one or both sides for opening offers which are then conveyed to the other side.  The mediator goes back and forth, meeting with the parties, asking questions and keeping the discussion moving.  Part of the mediator's job is to get the parties to consider other points of view.  That's helpful in breaking through impasses.  After many trips back and forth, the mediator can usually help the parties reach agreements.

3.  How do you know what to ask for?  It's a good idea to spend time prior to the start of mediation in figuring out what you want to end up with.  Once you are clear on what you want, then you can come up with some opening and secondary positions to use to start the process and keep it moving.  Equally important is to think about the motivations and interests of the other side.  If you can figure out what they are likely to be aiming for, you can plan your moves to maybe achieve both your and their objectives.  Maybe you can come up with some trade-offs.  Planning ahead will make it easier to come up with ideas that can work.

4.  What should be your strategy?  Keep your goals in mind.  Leave yourself room to compromise.  You should never start off requesting your best result.  No matter how logical or reasonable you think it is, the other side is not going to accept your opening offer.  Some people take an almost opposite approach, which is also usually a bad idea:  start off with the toughest issues to test the other side and find out if they are willing to compromise.  It's usually better to start with some easier issues and create momentum in coming to small agreements.  That can lead to bigger agreements.  Special warning:  Don't expect logic or rationality to plan much of a role in settling a family law case.

5.  Is the result binding?  Yes, if it's properly prepared and signed.  It must contain special wording saying that the agreement is binding and irrevocable.  With that, courts ill enforce mediated settlement agreements.  Be sure you really approve of all the terms before you sign, because there's no backing out or changing your mind.

Be sure to talk with your attorney and prepare ahead of time.  The attorney can answer any questions you have about how mediation works.  You should go in expecting to be successful!

How to Prepare for Mediation

Once the decision has been made to go to mediation, each side and their attorney should prepare.  Some attorneys spend a good amount of time getting ready and others spend little or no time.  The better practice is for the client and the attorney to put in time preparing since there is so much at stake.  The opportunity to work out a favorable settlement should not be squandered.

So, what can you do to prepare?  Here are some tips for the attorney and party to meet and work on.

• Identify the important issues.  Hopefully, the attorney already knows what the goals, needs and interests of the client are.  Sometimes, however, a goal may change in the course of the case.  For example, at the beginning, a party may want revenge or to punish the other party (not necessarily a course of action I would endorse, by the way).  After time passes, sometimes the anger cools and the party decides he or she just wants to get the case over with.  It is actually very common for goals and needs to change. A client should tell the attorney about any changes of attitude or plans.

• Figure out the other side's goals, needs and motivations.  You can put together a series of positions you might be able to take to compromise and come to an agreement.  You probably need to build in room to make some concessions so the other side will feel like he or she has won something.

• Gather needed paperwork.  Find out what paperwork you may need and then have it ready for the mediation.  It usually helps to have updated print-outs of all financial accounts so you can work with current and accurate numbers.  Your attorney can tell you what you need.

• Adjust your attitude.  Don't dwell on emotional issues, especially anger.  Think of the negotiations as a business deal.  Don't let personalities into the mix.  You can make a better deal if you can stay calm and rational during the mediation session.  Think of the advantages of getting the dispute resolved and being able to move on with your life.

• Ask questions.  Your attorney has probably done lots of mediations and may not explain every detail or may assume that you know or understand something that is confusing or foreign to you.  Take the time to ask questions.  Your attorney wants to help you, so help yourself by seeking clarity for you and your attorney.

Communication with your attorney before and during the mediation session will be key to you being comfortable, prepared and successful.  Good luck!

 

Why Does Mediation Work?

Mediation is encouraged/required in most family law cases filed in Tarrant County, Texas.  Courts want to have hearings only when necessary, and they know that mediation settles almost every case where it is used.  There are certainly some cases where nothing will help the parties to agree, but all experienced attorneys have mediated cases that reached agreements where it seemed like there was no chance ahead of time.  Mediation sometimes almost feels magical in its ability to help parties come to agreements.

Here's a non-magical explanation of why mediation works.

1.  There's a focus on problem-solving.  When mediation is scheduled, the goal is usually to reach a final agreement on a divorce or on a modification order relating to children's issues.  Sometimes, mediation is used on other issues or at different stages in disputes, but most commonly, the goal becomes to reach a final resolution.  In contrast, much of litigation is about investigation, making temporary arrangements, dealing with discovery disputes and other interim issues.  When you show up for mediation, everyone knows it's time to get down to business.

2.  A specially-trained neutral person helps both parties.  Judges are neutral, but they have a different job.  They listen to evidence and arguments and then make a decision which the parties must live with.  In mediation, the mediator does not impose any decisions.  The mediator keeps the parties talking and considering alternatives until the parties themselves reach an agreement about how they want things done.  The mediator helps the parties come to the agreement.  The mediator has been trained in communication skills to be able to listen better, ask questions and be supportive as the parties think and work through the issues.

3.  Each party gets heard.  This is a huge benefit of mediation.  Even though each side theoretically can testify and present evidence in court, there is no free flow of communication.  Rules of evidence and procedure constrict the flow of information.  Those rules are necessary for court, but they don't feel good to the parties who want their say in court.  In mediation, the mediator will listen to both parties and give them plenty of time to express what they want to convey.

4.  The process is safe and private.  Many people aren't happy about having to testify, or to be testified about, in open court.  They don't want their private lives exposed in public.  Court hearings are open to the public.  Mediations are not.  In Texas, the parties most often work in the "caucus" style, meaning that each party remains in a separate room and they normally don't see or hear the other party directly during the mediation.  The mediator goes back and forth, carrying information, offers and responses.  Most people seem to appreciate not having to confront the other party in the stressful situation of mediation.

5.  There's an end in sight.  Mediation almost always works.  When there is an agreement, the mediator prepares a written agreement which is signed by both parties and their attorneys.  The agreement is very detailed and always contains the magic words that the agreement is binding and irrevocable.  With that, judges will uphold and enforce the agreement.  The parties need to make sure they are satisfied with the agreement, because it will be binding once everyone signs.  After that, there's no backing out.

In the ordinary case, magic isn't required.  Mediation provides a safe, controlled, private forum where each party gets to be heard by a neutral third party.  Some people feel validated and some just need to let off steam.  Whatever is needed can usually be provided in the mediation process.

Should You Try Mediation?

Simple answer:  Yes!  

Here are some reasons why you should plan on using mediation:

• Judges almost always require it, at least in Tarrant County, Texas divorces.  If you can't quickly get your case settled otherwise, your Judge will almost always order the parties to go to mediation prior to trial.

• The process works.  In my experience, it seems to work about 80-90% of the time.  Even in the cases where we don't end the session with an agreement, the parties almost always come to an agreement shortly afterwards on their own.  In most cases, if there's no final agreement, at least some issues get disposed of or at least narrowed.  That will save time if you ever go to court.

• Mediation is good for the parties.  It's a private and confidential process.  Negotiations take place away from the courthouse and information is not so publicly exposed as it would be in a trial.  It's also good because it brings an end to the legal dispute and the parties get to be the ones deciding how it is resolved.  It's also usually cheaper than preparing for, and going to, trial.

• Mediation is often better than the alternative.  Sometimes, clients fear testifying in court, so mediation sessions become very appealing.  Sometimes, clients just don't make good witnesses, or they may be unsympathetic people, or  they may have some bad history they don't want brought out.  Sometimes, clients run out of money and can't afford to get experts, and pay for the preparation for trial.  For all those people, mediation is a safer alternative.

• The result of a successful mediation is an enforceable agreement.  Courts are unanimous in supporting and enforcing properly signed and prepared  mediation settlement agreements.  You don't have to worry about someone changing their mind.  CAVEAT:  Be sure you understand and agree to everything, exactly as written, before you sign off on the mediation agreement.

Don't Write on Original Documents!

One of the best, appropriately brief  posts I have seen in a while comes from Mark Chinn's blog from April 30, 2012. Mark is an outstanding Family Law attorney in Jackson, MS and has been producing a very nice blog on Family Law issues.  It has excellent advice for something that comes up once in a while.

Sometimes, while preparing a case, it becomes important for a client to bring a document to the lawyer to help prove a point.  Documents include tax returns, various applications, certificates, old court pleadings, accounting records, letters and many other things.  The documents need to be in good condition and hopefully, be originals.  Which brings us to the advice:

PLEASE don't write on original documents!  Your writing can make the document hard to read, but more importantly, it may become inadmissible because it contains hearsay and because it is no longer authentic.  The extra writing is considered hearsay, which is generally inadmissible, and the document has been changed into something new by the writing.  It may seem like a trivial technicality, but that writing does cause a problem.

HOW TO AVOID THE PROBLEM?  There are several simple solutions:

• Make a copy and write your notes on the copy.
• Scan the document and make a PDF.  Then print the document and put your comments on that copy.
• Use a sticky note for your comments.
• Just make notes on a separate page.
• Use self restraint. Don't write comments. Just tell your comments to your attorney. 

Your attorney will be much happier and your case will be in better shape if you follow this advice!

Should We Do Informal Discovery?

Discovery is a necessary stage for most divorces.  It is the process of gathering and sharing information about different aspects of the parties going through a divorce or other Family Law issue.  There are some standard steps that attorneys often follow, written questions, requests to turn over specific documents and requesting other information and basic information about the witnesses and issues that are expected to be used in a trial.  Sometimes one or both sides will want to take a deposition of various witnesses.  That involves having a court reporter and doing an audio and/or video recording, usually with a typed transcript of the questions and answers.

Attorneys must decide not only which discovery processes to use, but how formal to make the process.  In many divorces, informal discovery can be perfectly adequate.  Informal discovery can be faster and cheaper than formal discovery, but there is also a risk that something may be overlooked, although that can also happen in regular, formal discovery.

In Tarrant County divorces, when the attorneys know and trust each other, informal discovery is often done.   

Just like in some diplomacy, however, we generally follow the approach of "trust, but verify".  Here's a way to do it:

1. Each side determines what information they need and whether they will  need an expert or some other third party.  The parties figure out what specific items they need to request.
2. The two sides will talk about what they have and what they can provide to the other side.  Talking with the other side during informal discovery is a rational, common-sense way of working that doesn't often occur during formal discovery.
3. Sometimes, the two sides hire a joint expert to give a value or some other opinion.
4. Each side will almost always prepare a sworn Inventory and Appraisement listing all the assets and liabilities, along with values.  It also is a way to confirm that everything has been identified and listed.  In other words, it states that there are no undisclosed assets and liabilities.
5. At mediation or in settlement, we often also request that the other party sign a statement under oath saying that everything has been disclosed.

If informal discovery doesn't work out, the parties can always resort to formal discovery, so there is a back-up.

The alternative to informal discovery is to start with a costlier, slower and more labor-intensive process, formal discovery.  Sometimes, if the attorney is unknown or not known to be  trustworthy, or if the party is untrustworthy,  formal discovery is the only way to go.

Caveat:  There may not be an option to do informal discovery if the other attorney has been hired and directed to make life difficult for your client.  If there's an angry party on the other side who wants to punish or hurt their spouse, there won't be a choice.  Unfortunately, the people wanting to use that strategy often don't realize the extra cost that involves for themselves as well.  You just can't make people be reasonable.
 
 

Why You Shouldn't Be a Jerk!

Some people just can't help it.  They are jerks.  I prefer to think that anyone and everyone can behave well if they choose to.  For some, it takes a lot of concentration, and then some occasional backtracking to undo an initially rude or inappropriate reaction.  I believe that almost everyone can act right, if encouraged and reminded, and if they understand it is in their own best interest.

In general, everyone will need a favor, such as getting a hearing reset, an agreement to allow more time to respond to something, leniency or the benefit of the doubt.  Jerks don't often get the favors.  

Here are some specific ways being a jerk can affect you in the legal system.

1.  You may face stronger opposition from the other side.  They are less understanding or forgiving.  If you (figuratively) slap them in the face, they probably won't turn the other cheek in litigation.  Mad people fight back!

2.  The Judge won't like you.  The Judge is bound to follow the law, but he/she is not a robot.  There will always be matters, especially in Family Law, where the Judge is allowed a wide range of discretion to decide outcomes.  You need the Judge to like you when he/she is deciding property division, allocation of bills, support, visitation and other issues. Like it or not, most legal decisions are not precise applications of the law which produce mechanical results.  Most decisions are discretionary.  You don't need to fight the Judge.

3.  Other important officials who don't wear robes may not like you.  Humans fill the roles of court clerks, court coordinators, bailiffs, child support office workers, employees of the Domestic Relations Office and employees of the Texas Attorney General's Office.  You may not ever think about some of them, but they see, know and talk about you (that's not just paranoia) and they can influence how easy or how difficult your life is in the future.  You are better off if they don't remember you, because they normally just remember the "problems".

4.  Your own attorney may not stick around.  Most attorneys are busy.  Very few want to waste time and put up with aggravation from a difficult client.  

5.  It will be harder to find witnesses and allies willing to help you out.  Forcing someone to come to court and testify is usually a bad idea.  Yous want voluntary witnesses.  You want people coming forward and wanting to help you out.  An ungrateful, vindictive, mean person usually has a hard time getting help from others.

Bonus Point:  The more you fight, the longer it will take and the more it will cost.  Don't complain about those things if you choose to be a jerk!

You Can Both "Win"

Or, why it's OK for your spouse to come out of the divorce in good shape, too.

For many different reasons (competitiveness, anger, revenge, control or mental illness, among others) parties going through a divorce often feel like they have to "win".  But, as Charlie Sheen showed us, "winning" isn't everything.  In fact, in divorce, the drive to win can be very destructive and certainly raises the cost of the process.

Here are some ideas to consider as you start out in a divorce.

1.  If there are children, both you and your spouse will remain the parents of your children, and the kids should feel good about their parents.  Unless your spouse has done something really heinous, he or she will be a part of the children's lives forever.  The children feel like they are a part of you and a part of your spouse.  You certainly don't want the kids feeling bad about a part of themselves.  Destroying your spouse will hurt your children.

2.  Making your  spouse mad at you can lead to more problems for yourself.  Sure, everyone gets upset during a divorce, but you can try to limit the damage by limiting how rough you act.  If you (and your attorney) always play hardball, your spouse will probably be much angrier than he or she would have been if you had taken a more reasonable approach.  Think about how your spouse acts when he or she gets mad.  You don't have to rollover and let your spouse get everything, but there is certainly a middle ground between that and hardball.

3.  A bad result can cause financial problems for one or both of you.  One or both of you may have credit problems. Savings and credit lines are often used up. Struggling financially post divorce, especially if you have kids, can lead to problems for the other spouse:  joint bills not being paid, extra expenses having to be covered by the other spouse, tight budgets, etc.  Even after the divorce, there is still some financial connection for at least a while, and often longer.  Going overboard with the divorce fight can drain the resources of both of you.

4.  You will look good to your family, friends and the community.  That's a good thing.  Whether you believe in Karma or not, the good you do will come back to help you later in life.

5.  A happy ex-spouse may help you later one.  You know that from experience in other contexts.  You don't have to become life-long enemies.  Ex-spouses often work together better post divorce.  It happens all the time.  Yes, your spouse may be the one who never gives you a break, but it's worth it to try.  If you have kids, you will need help and cooperation from your spouse.

CAVEAT:  Sometimes one party wants to "play nice" and the other one wants to take a scorched earth approach.  If you want to be the nice one, you may not be able to be as nice as you want, but you don't have to go all the way in to the opposite extreme to counteract your spouse.  All the above points are still true.  You will do better and feel better if you can look at things from a long-term perspective, rather than just an immediate battlefield point of view.  Good luck!

7 Bad Strategies for Divorces

Attorneys handling divorces hear and see a lot of things that are signs or symptoms of problems for their clients. If you are going through, or about to go through, a divorce, and you say or do any of the following, you are going to make your life more difficult and probably more expensive.

1. Saying that cost is no object. That's literally true for very few people. For most people, there will be a point when they realize the cost is starting to exceed the expected benefit. As that scale tips, people become unhappy. They realize that they have spent a lot of money and still haven't accomplished all that they wanted. It's better to be realistic from the beginning and put limits on your spending for attorney's fees and other litigation expenses.

2. Being too cheap. "Nickel and diming" everything. If you can't afford reasonable costs, you should reassess your approach or just stop for a while, if you still can. While being frugal is often good, you should not cut back too much on essential expenses. Work with your attorney to come up with a reasonable budget for what you need to do.

3. Listening too much to others. That can be a serious problem, especially if you decide that you want to do something or not do something because of what someone (other than the lawyer) has told them. Each case is different. Laws are different from state-to-state. It's much better and safer to strategize with your attorney.

4. Being in a hurry. Most legal matters take much longer than clients want or expect. If you are in a hurry, and especially if the other side becomes aware of that, you will be at a significant disadvantage in negotiating. The party who's not in a hurry can easily put pressure on the other party by simply slowing everything down. When your goal becomes a speedy resolution to the issue, you lose a lot of your bargaining power for getting a good result.

5. Having another significant other waiting in the wings. The "other" will probably encourage you to be in a hurry to settle. See #4. In addition, if you ex finds out about the "other", your ex may become angry and uncooperative. Finally, people tend to make bad decisions on the rebound. Be careful.

6. Using the kids as a weapon. This is such a "no-no". Don't threaten to keep the kids away from the other parent. Don't trade visitation or money for time with the kids. Try to focus on what's best of the children.

7. Signing an agreement without legal advice. Sometimes people try mediation without attorneys or negotiate or go to court without attorneys. Be sure to take any proposed agreement to a Family Law attorney to review before you are finally committed to a deal. It's safer to have an attorney advising you all the way so you can avoid problems that you may not even be aware of.

If you will avoid these seven bad strategies, your life will be much better. If you think about taking any of these approaches, be sure to discuss your ideas with an attorney. Good luck!