Archive for February, 2010
Collaborative Law is relatively new to Texas but is catching on not only in the Family Law arena, but in other disciplines as well. It involves a shift in the thinking of the two attorneys involved from a “win for their client” to “win for the family”. Not an easy shift and not always successful but even when not totally successful, it is far better than the alternative. Here is how it works:
1. Both clients and their attorneys meet to read, hear, and understand the contract for Collaborative Law that will govern the divorce process – what they will do and how they will act – all four of them.
2. Once it is signed, information is voluntarily exchanged between the two clients and their attorneys. Both sides agree they will not hide or deceive.
3. If children are involved generally a parenting expert is brought in to assist the parents in formulating a co-parenting plan. Probably the very best aspect of the Collaborative practice.
4. Financial experts are brought in to help each spouse understand the consequences involved in any given division of the property. When done properly, the process is “needs” based as opposed to the “threat of the judge” so often involved in adversarial cases.
5. When communication breaks down, a communications coach is often utilized.
6. The process goes at the speed of the spouse dealing with the divorce the slowest.
7. When an agreement is reached, the parties come together to sign off on the agreement and the divorce is done.
Is it perfect, kind, easy? No divorce process is “perfect” just as no marriage is “perfect”. But it is kinder and easier and far less brutal. Be sure your attorneys are well trained and have worked together more than once before. Know in advance who they like to use for their parenting advice and their financial advisor. Interview them as well as the attorneys – they should be fully as important, and probably more, to the process.
If possible, get some references of other clients the two attorneys have worked through the Collaborative Process with and call them. My experience has been that the real benefit of the Collaborative Law process comes several years later when divorced spouses, even those without children, are able to converse, look back at their marriage and remember the good parts as opposed to what “broke them apart” and the battle that ensued as a result. Worth more than a little extra money and/or time.
For additional information, recommendations for attorneys trained in the process. Give me a call. 713.599.1220
Most couples only hear about the “War of the Roses” divorces but in truth, there are probably more where both parties do not desire to hurt their respective spouses – they just want to end the marriage. Those divorces are just not as much fun to talk or hear about.
Adversarial divorces, where each spouse hires an attorney, whose job it is to “win” for their client, are the most common in Texas. Even those don’t have to be a war unless one of the attorneys or clients enjoys the fight. In some divorce scenarios, they are essential – when one party is suspected of hiding assets, when physical abuse is involved, or other legal means of getting required information or protection are necessary.
In most other cases, either Collaborative or only Mediation may be necessary. Collaborative Divorce is relatively new to Texas but is a huge improvement over Adversarial in most cases. It involves both parties hiring an attorney who is properly trained in the Collaborative Process. It also involves a great deal of trust that both parties will divulge all financial information. Both attorneys and clients sign an agreement to work openly and in the best interest of both parties. That should not be interpreted as not having an advocate for the process. It is just a more civil process. Other experts are frequently brought in – communication experts, counselors, parenting planners, and, of course, financial experts. The only draw back can be cost. All meetings are done with both attorneys present which means meetings can run several hundreds of dollars per hour. Then add the experts. All that said, it is still better than Adversarial and not much, if any, more expensive.
Mediation is actually involved in Adversarial and frequently in Collaborative but it is different than “Stand alone Mediation”. I’m going to save this topic for another day as it is too important to cut short. I also want to talk in more detail about Collaborative Divorce. So, as they say, “Stay Tuned”. Meanwhile, if you have questions or thoughts, call me. 713 599 1220
Your divorce and how it is handled will impact the rest of your life so choose your team carefully. You will need—in this order:
1. A counselor who will help you through not only the divorce process but later help you determine who you want to “be” now that you are no longer a “Mrs.” The grieving process is huge and long and you will need help coming to terms with your feelings – many of which you will not like or recognize in yourself. As with all your team, you must feel comfortable to share your gut feelings as any pretense with her will hurt or destroy your healing process.
2. A financial person who may or may not also be a mediator. Most important, they must be a Certified Financial Planner with experience in divorce procedures and a general knowledge of family law and “normal and ordinary practices”. This person will help you understand your finances and how your standard of living will be impacted by the divorce. She will also make suggestions on how to divide the property to best serve the needs of both people if she is a mediator and for your best interest, if working only for you. I personally do not like the financial person to be a CPA, as their profession almost always will make them concentrate on tax issues, at the expense of other fully important aspects of the division.
3. A Family Law Board Certified Attorney if one is available in your locale. If not, an attorney whose practice is primarily divorce. You do not want the least expensive and probably not the most expensive attorney in town. Again, emphatically, I will tell you there is nothing more expensive than a cheap attorney unless it is a cheap financial person. The cost should be reflective of the complexity of your assets and or children’s issues. Interview at least three based on recommendations of your counselor and/or financial person – not friends who have been through a divorce unless they are your only resource. Base who you choose on how comfortable you feel with them and whether you feel they are giving you their undivided attention when you visit with them.
Most important: Each member of the team must respect the importance of the other team members and be willing to work with them for your best interest. There is only one most important person on the team and that is you.
Need some recommendations or divorce assistance? Give me a call at 713.599.1220.
So, With No Insurance Available for Divorce, How do You Prepare?
No one should make light of the emotional and financial toll the death of a spouse takes on the person left behind but the financial and emotional impact can be even more devastating in divorce. Compare: In death, your spouse leaves you believing he loved you. In divorce, he leaves you telling you he no longer loves you or loves someone else more. In death, your husband almost always leaves you with all the community assets, use of any money he may have inherited during marriage, and generally, life insurance to cover his loss of salary. In divorce, he fights hard for 50% of the community assets and he keeps all his salary and inheritance. And the final insult, this person is there to be dealt with pretty much for the rest of your life if you have children. In death, he goes away. So what to do – the law won’t let you kill him.
You prepare financially for death by buying insurance but there is no insurance of any nature for divorce – and NO, you cannot be “loving” enough”, cook well enough, be pretty enough, or “lifetime soul mate”. Maybe you could earn enough money but it would have to be quite a lot. A failed marriage isn’t so much about “failing” as it is about changing. You get married and you start changing, as you should since maturing is a continual life process. And as both you change life takes place and sometimes the changes take two married people down different paths.
You prepare for divorce by becoming educated in financial issues as they relate to your marriage. You take turns paying the bills and being responsible for your investments or you do it as a team (which rarely works). Yes, we all have different interests and one of them may not be “investing”. We are not talking about “interest” here – we are talking about being responsible for your own well being. Don’t know where to start getting educated? Call me. I’ve got a great answer! 713.599.1220.
KEEP YOUR EARNING SKILLS UP TO DATE UNTIL YOU ARE INDEPENDENTLY CAPABLE OF RETIRING. And, if you take a sabbatical to be a full time parent, you execute a post nuptial agreement that states how much income you get in divorce if the marriage ends BEFORE you quit your then full time job and I suggest before you actually get pregnant.
So, what do you do to prepare? Get and stay financially educated and NEVER, BUT NEVER, TURN YOUR FINANCIAL FUTURE OVER TO ANYONE ELSE – ESPECIALLY YOUR SPOUSE. You may be more interesting, happier, and healthier. You will definitely be more secure – both financially and in your marriage.
(Just change the pronouns if She ask – advice is the same!)
Most couples know over 50% of marriages end in divorce and think they “know” theirs won’t be one of them. At least one half of the couple generally believes it up to the minute they hear “I want a divorce”. Then every negative emotion bombards the brain simultaneously. Yet, in the few minutes that follow, the tone of the divorce may be determined and who controls the divorce will likely be set. So what do you do in that brief window of alarmed opportunity?
Your first panic thoughts will by “Why?” “What did I do?”, “Who is she?” as well as an intense desire to kill or at least maim. Not any of those are the right question or your best calculated move. The REAL question to be answered before any others are asked or discussed is “Do I want to do the work necessary to try to save this marriage”. It will take awhile to know the answer and it should not depend on why he is asking for the divorce. Strangely enough, that really is not relevant to the answer. It is now about you – not him!
At that moment you are not in any shape emotionally to handle any answers or explanations your spouse is so ready and waiting to give you. So don’t let him!! Say “Please hand me a Kleenex and then leave me alone for at least 24 hours. And I mean alone – not in this house and not on the phone. You have had as much time as you needed to determine you no longer want to be married to me. I will take as much time as I need to determine if I want to be married to you and 24 hours is what I need to start with. I’ll call you to let you know when I am ready for any further discussion on the matter.” Hand him his coat and open the door. He will be so shocked, he actually will go. When he calls, don’t answer.
Call your very best friend and ask her if she is having an affair with your spouse. If the answer is a shocked “No” then tell her you need her right now to come and hold you while you fall apart molecule by molecule. In the morning (spouses never ask for a divorce in the morning over coffee—almost always at night) call your counselor if you have one, your minister or me for a recommendation if you don’t. The counselor will help you answer the REAL question. Take the time you need to come to the decision that is best for you for the rest of your life. Regardless of the answer, congratulations, you have now taken control of the marriage or divorce.
And while you are thinking about it – regardless of which answer you are leaning toward, make copies of every financial document you can lay your hands on and keep him out of the house long enough to do it. He can get a divorce whether you want it or not and at that point, it is about money so get yourself prepared with as much documentation as possible. Wipe your eyes, blow your nose and go buy a copier and get to work. Call me, I’ll tell you where to start. 713 599 1220.