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On the first day of the Collaborative Law Institute of Texas’ Spring 2010 conference in Austin, News 8 Austin came out to cover the event, speaking to President Kevin Fuller and Conference Director Linda Solomon. A write-up of the conference is now up on News 8’s website. We appreciate them coming out and allowing us to talk about the advantages of collaborative law for couples seeking divorce.
We had a successful first day at our Spring 2010 Conference in Austin, leading a group of professionals new to Collaborative Law through what we call the “nuts and bolts” of Collaborative Law — how it works in Texas to provide couples with an alternative to traditional courtroom divorces, and how the process brings couples together with lawyers, mental health professionals, and financial professionals to negotiate settlements on the issues divorcing couples must resolve.
KUT-FM, the NPR affiliate in Austin, interviewed Kevin Fuller and Kris Algert, the president and president-elect of the Collaborative Law Institute of Texas, for a story exploring Collaborative Law. In the story, they both talk about some of the key elements people should know about Collaborative Law when exploring options for divorce.
The conference continues today and Friday.
Recently the Wall Street Journal ran an excellent article titled “Splitting Up Nest Eggs”. The caption read: “Battles over retirement assets increasingly are the most contentious – and error filled – part of divorce.”
The article is a good read. It is an interview with a prominent Atlanta divorce attorney. The attorney gives illustrative examples of the biggest mistakes of splitting up retirement accounts.
But the most fascinating point is when the journalist describes how the division of retirement accounts is often negotiated at the end of a “many-hour mediation that’s grueling for everybody.” He explains that the emotional parenting issues are ironed out during the first hours of the mediation. Nine hours later, couples get around to dealing with the “less-explosive” retirement accounts. By then, everyone is tired and these issues tend to get rushed through, leaving out the details needed to implement the simple wording “divide retirement 50-50.”
This is fascinating to me because I have never experienced nor personally heard about a Collaborative case in which division of the retirement accounts was rushed through at the end of a long, draining day. In fact, I have never been on a Collaborative case that included long, tiring meetings on any topic. All the meetings I have experienced are short and effective.
In the Collaborative divorce process, couples get to make careful and well thought out decisions. Settlement ideas are considered and analyzed prior to team meetings, during team meetings and after team meetings. The Collaborative process avoids the marathon mediation situation when important decisions are made by exhausted people who just want to get it done so they can go home.
As the neutral financial professional, it is my job to make sure both spouses understand all the financial issues before they make decisions and commitments. Over the course of the process, I meet with both spouses to explain details and nuances. These spouses get to think about all this new information, ask questions and carefully consider their options. They can take as much time as they need to feel comfortable and confident about their decisions. Couples who choose the Collaborative process can consider their options to split up their nest eggs over a period of time that is measured in weeks, not in minutes.
Contributor: Tracy Stewart, http://www.texasdivorcecpa.com/ financial professional in College Station.
By the time a Collaborative case seems ready to start because both sides have agreed to use the process and both have hired trained Collaborative lawyers, the parties start to get anxious to get the case moving. This is a natural reaction to the discussions that preceded the commitment to use Collaborative Law. Those discussions almost certainly emphasized the positive aspects of the process and how they fit the special needs of the parties. With expectations set high, the parties are naturally anxious to get started with this new, better way to deal with their most stressful situation.
In many cases, unfortunately, it takes a little while to get to the first joint meeting. Understandably, the delay can be annoying to the parties who are mentally and emotionally ready to start solving their problems with this wonderful system they have heard about.
There are legitimate reasons for the built-in delays that the parties are about to face. Here are some of the main reasons:
1. Before the first joint meeting, the attorneys need to have a discussion and put together a team. In Texas, when we use a Collaborative team, the attorneys usually decide which mental health professional (MHP) and which financial professional (FP) will be used. The attorneys try to find other professionals whose skills and experience fit the case well. Once the possible professionals are selected, the attorneys must contact them and find out if they are interested in joining in the case and what their time availability is.
2. Once selected, the professional team will evaluate the suitability of the case for Collaborative. Of course, each attorney has already considered the case and approved it for Collaborative Law, but it’s better to add different perspectives and a quick review so the parties don’t waste their efforts and money starting a case that isn’t suitable.
3. The next step is for the professionals working on the case to communicate and make sure they are working in a coordinated fashion. There are some slight variations in forms used, agendas for meetings, the order of steps followed and perhaps some other things. It is easy to reach an agreement among the professionals, but the discussion must take place so that everyone is clear on the steps and perhaps the timing.
4. Then, the professionals need to match up their calendars to find out when they are available to start. All of the professionals have other client obligations, so it is sometimes pretty tricky to coordinate at least four calendars.
5. Finally, once the parties and team members start meeting, some parties want to immediately start negotiating the settlement terms and we can’t allow it. That’s sometimes hard to discourage, especially when everyone wants to be agreeable, but it’s not the Collaborative process. We follow a “roadmap to resolution” that is a step-by-step process that is very effective. Through experience, we have learned that short cuts tend to make the Collaborative process not work. We have to insist that everyone stay with the normal steps. It really doesn’t take nearly as much time as a litigated case that goes to trial, but we know it can seem very slow if both parties are anxious for the relief of settlement.
The attorneys and other professionals in a Collaborative case are often fired up and ready to get started as soon as everyone commits to the Collaborative process. Unfortunately, there are some preliminary matters that must be handled before the process really begins. Patience is necessary, especially for the parties, but it will be rewarded. With a little bit of work and the discipline to follow the steps of the Collaborative process, the parties will almost always be rewarded with appropriate and satisfactory solutions to their issues.
Contributor: Dick Price (www.pricelawfirmtx.com), attorney in Fort Worth.
Valentine’s Day is upon us — and for some couples, that’s not necessarily good news. This article from Divorce Magazine points out that February 15 is one of the busiest days on a divorce lawyer’s calendar. That should come as no surprise, given that Valentine’s Day and its image of happy, romantic couples puts extra pressure on those couples who are no longer happy and romantic.
As people begin to face the reality of getting divorced, they realize that it is not a simple process. The shared legal and financial responsibilities that come with marriage make parting ways more complicated than simply saying, “We’re through.” And if children are involved, that adds a whole other layer of complications to parting ways.
At the time a couple decides to divorce, they have to make fundamental choices about how they want to proceed. Do they want to remain cordial? Do they want a public fight? Do they still have any family values in common?
If children are involved, the parents will almost certainly be required to communicate and interact. The more cordial they can be with one another, the easier it will be to meet the needs of the children.
But even if children aren’t involved, divorce involves couples who, at one time in their lives, were in love and pledged to look after one another. That’s why Collaborative Law is seen as not only a better alternative to a traditional courtroom divorce, but also an alternative more in the spirit of what marriage is supposed to be. Certainly, not all marriages can last, and divorce is oftentimes the painful conclusion to a journey begun when a couple realizes something isn’t right in their relationship.
But too many times, courtroom divorces result in increased animosity and discord, in contrast to what could have been a more peaceful, solution-driven process in a Collaborative Law setting. For children, courtroom divorces can be especially hard to go through. Collaborative Law divorces in Texas usually include mental health professionals specifically brought in to help all involved through the process and to help create an appropriate parenting plan.
So, while it’s not candy or flowers, the opportunity to part ways amicably at the end of a relationship — as afforded by the Collaborative Law process — can be one of the most important and long-lasting gifts a couple can give one another.
We’re pleased to announce that the Collaborative Law Institute of Texas is co-hosting (along with the State Bar of Texas) a statewide conference for attorneys, mental health professionals, and financial professionals from across Texas who practice Collaborative Law. The March 3-5 conference will be held at the AT&T Executive Education & Conference Center in Austin. Forty professionals from across the state will be presenting and sharing information on Collaborative Law, including the latest developments in the field.
The conference will include a day of workshops and panels on Wednesday, March 3 for professionals who wish to learn the fundamentals of Collaborative Law, followed by the March 4 and 5 conference featuring workshops and panels on a range of issues related to Collaborative Law practice. This online press release talks more in detail about what will be happening.
For practitioners new to Collaborative Law, this annual conference is a great way to learn about how Collaborative Law works, and in particular, how it works in Texas.
But the benefit of this conference goes beyond those new to the field — veterans get to discuss how new laws can potentially impact the CL process, and can get together both formally and informally to talk about best practices and compare notes on Collaborative cases they’ve worked on. The attendees go back to their home bases at the end of the week, with a better sense of how couples can settle their divorces through the CL process. The conference is remarkable in that it brings some of the top Collaborative Law experts in the state together under one roof, and they are able to help each other develop an even more refined sense of what kinds of solutions are possible under Collaborative Law.
If you or your spouse is crazy, you probably need all the help you can get. But most people going through a Collaborative divorce aren’t crazy — choosing Collaborative is a very rational, sane decision, after all!
Actually, almost everyone going through a divorce could use some professional assistance, but some need it more than others. In a Collaborative divorce, the parties experience the same emotions that are experienced in a litigated divorce, although hopefully less intensively. In addition, the Collaborative context actually tries to manage the emotions in a case.
In Texas Collaborative divorces, we usually bring in a single, neutral Mental Health Professional (MHP) to work with both parties. Other states and countries may utilize an MHP for different functions. The MHP has several roles in Texas Collaborative cases. Here are the main ones:
What you don’t see in that list is “therapist.” That’s because we don’t use the MHP to try to improve the client’s emotional state or stability. The MHP doesn’t try to cure a party or unravel sordid histories. Instead, the MHP works to help each party function at their optimal level.
More and more, we are realizing that Mental Health Professionals are indispensable in Collaborative matters. I would say that we’re crazy about MHPs, but I would probably get a lot of negative comments. Instead, I’ll just add that whatever title is used or whatever role is filled by MHPs, they are worth their weight in gold for the attorneys trying to work through to an agreement.
In litigation, there is always a tension between trial and settlement. One of the biggest strategy challenges a lawyer faces in the litigation process is trying to be a diplomat and a battle leader at the same time. Essentially, it’s trying to balance a diplomat’s hat and a war general’s hat on the attorney’s head at the same time.
In the litigation process, even if the parties are intent on settlement, the lawyer still has to in some fashion keep his or her “war general” hat on. One of the biggest strategy challenges for a litigating lawyer is to avoid trying too hard to settle when they should be preparing for trial, and to avoid pushing too hard to prepare for trial when they should be exploring settlement options.
It is hard to serve the two masters of dispute resolution – trial and settlement – at the same time. It is hard to simultaneously fully prepare for trial and keep everyone calm enough to be open to settlement options. And, therefore, it’s hard to wear both the diplomat and war general hat in a divorce situation in which the courtroom looms as the destination for deciding what happens.
In the Collaborative Law process, the focus is solely on settlement. This allows the advocate to focus everything he or she does on increasing the likelihood of settlement, without being worried about being caught short at the courthouse because of a failure to request or respond to formal discovery. And, to extend our analogy a little further, it allows the lawyer to only have to wear one hat.
We wanted to make sure this didn’t escape your attention:
Collaborative Law Institute of Texas board trustee Tracy Stewart, a financial professional and CPA based in College Station, wrote a great article for the AICPA Wealth Management Insider last month entitled “Family Business: Avoiding Divorce Disaster.”
The article details some key dos and don’ts when a family business must be factored into the financial equation for a divorce settlement. This can be a tricky aspect of divorce proceedings, but Tracy, with her Collaborative Law background, brings an expert’s perspective on what the best courses of action are when a couple must deal with a family business during a divorce.
Among the “don’ts” on her list are the following:
Don’t make any big changes during or in contemplation of divorce.
Don’t drain the business.
Don’t cut costs in hiring the business valuation analyst.
Don’t try to influence the business valuation.
Don’t interfere with the conduct of the business.
Here are some “dos” that Tracy recommends for divorces involving family businesses:
Do share critical information with the out-spouse.
Do seek privacy.
Do carefully choose the best divorce model.
To get Tracy’s full details, please go to the original article with the link above. She provides more explanation and comments from other Collaborative practitioners also experienced in dealing with family businesses. Family businesses can be a tremendous asset, but they must be handled very carefully during a divorce. Collaborative divorce is often the best way to maximize the value for both parties.
Thirty years ago, the movie Kramer vs. Kramer provided the nation with a reference point for divorce that, in ways, still resonates today. Sadly, many adults today can point to their own divorces or their parents’ divorces as ready examples of that divorce experience.
However, the process of divorce has been evolving with the introduction of Collaborative Law as an alternative to traditional divorce. In 2003, Texas became the first state to provide, via legislation, for the Collaborative Law process to resolve divorce cases. Since then, Collaborative Law has caught on in Texas as well as in other states as an alternative to spouses divorcing in a courtroom setting.
While the issues so poignantly raised by Kramer vs. Kramer, including child custody and dealing with the complex emotions evoked by divorce, are still very much part of divorce today, Collaborative Law provides a way to reach settlement that wasn’t nearly as well known at the start of the decade.
This Christian Science Monitor article from 2004, featuring CLI-Texas member Norma Trusch, is a great example of the kind of attention Collaborative Law has been garnering throughout the ’00s. What’s most striking about this article, even now, is how Trusch compares the experience of Collaborative divorce versus courtroom divorce — a setting in which parents can stop fighting, and, as Trusch recounts here, how the spouse she wasn’t representing in a CL negotiation hugged her upon settlement.
A decade ago, most people would have found it unthinkable that a spouse’s lawyer could be viewed as anything other than the enemy in a divorce case. The great thing about the CL model — one that more and more people have become aware of this decade — is that everyone entering into the CL process comes into it with settlement as a goal, seeking solutions rather than doing what it takes to win in the courtroom.
As an organization that formed in this decade, we’re proud of how Collaborative Law has grown and developed over the course of the ’00s. We still have more work to do, of course. In the next decade, our goals for developing Collaborative Law in Texas include training lawyers, financial professionals, and mental health professionals to adopt Collaborative Law practices. While Texas’ largest metropolitan areas have a number of able Collaborative Law professionals, some cities and regions in Texas still need Collaborative Law practitioners in order to offer the advantages the Collaborative Law process affords.