There is an emotional aspect to every experience we have, and the holidays are no exception. Make it your goal to create a supportive emotional environment for your children at this time. If they are feeling sad, don’t try to jolly them out of their funk. Instead, validate their feelings and let them know that they are having a perfectly appropriate and understandable response to the challenging circumstances of this situation. With your loving understanding, they will feel heard, and better equipped to navigate the situation.

If it’s a gift-giving holiday like Christmas or Hannukah, you may face additional challenges. If there’s a wish list for presents, how can you avoid duplication? Ideally, talk with your ex to coordinate gifts and even support each other’s gift: If Suzy received a doll from her other parent, how about giving her some accessories for that doll? It’s also a time when your children might want to give their other parent a gift, and they need your help making or buying it. Try to support their generosity as best you can.

Another potential pothole presents itself when gift-giving is turned into a competition. Quite simply, don’t do it. Households have different perspectives on the meaning of gifts and material goods. Consider this a time for your children to experience difference, and let them draw their own conclusions about what gift-giving means to them.

As an intact household, you most likely had unique and treasured traditions around holidays. In your re-formed family, there is a delicate balance between preserving the traditions that continue to bring joy and meaning to the occasion, jettisoning the traditions that are a painful reminder of a version of your family that no longer exists, and creating new traditions that nurture the development and well-being of this new family form. This is an opportunity to include school-age children in the planning. Find out from them what traditions were important to them, and incorporate those traditions into your plans. Harness their creativity in crafting new rituals that will enable the family to express and celebrate the spirit of the season and don’t hesitate to think outside the box!

And then, of course, there are your emotions to manage. While modeling appropriate emotional responses is an important part of parenting, at raw emotional times, such as a first divorced holiday, you’ll probably need to expend a bit more energy than usual to ensure that your own vulnerable emotions aren’t on display in a way that your children might find overwhelming or frightening. This is also not a time to introduce significant, emotionally-charged information into the mix: don’t announce an upcoming relocation or introduce new romantic partners. Consider what the children are already contending with, and hold off on giving them further change to process.

Finally, recommit to what you already know. Do make a point of relating constructively with your ex. Don’t make disparaging remarks about him or her, or how he or she is choosing to celebrate the season. Don’t pump the kids for information about what’s going on at “the other house.” Do allow them to be excited about the time they will spend with their other parent and encourage it as best you can. Practice flexibility, adaptability and patience. And remember that, with time, all of this takes on a grace and ease that might be in short supply right now.

Divorce re-forms families. Instead of two parents living under one roof, there are now two homes where the children live, each with its own distinct culture and traditions. Ideally, the transition to this new world order goes smoothly, and the children adjust with relative ease. But even in the smoothest transition, holidays can represent a challenging time for divorced families.

There are functional considerations: What will the schedule be? How will gift-giving be managed across the households? What traditions will be carried over and what new ones will be created?

Then there are the emotional considerations: What will it be like to “celebrate” as this re-formed family and what memories will be stirred up? How are the children managing their feelings about being in a divorced family at a time when family takes center stage and for that matter? How are the parents feeling?

Most divorce decrees define how time with the children will be shared during various holidays. You and your ex-spouse may choose to follow this plan, or you may agree to a different schedule. Whatever the case, it is essential to have a plan well in advance, and to follow that plan. Your schedule is the first opportunity you have to reassure your children with a structure that they can rely on and, ideally, find comfort in.

Let them know by November 1st at the latest what the general schedule is. As details get worked out, share that information with them and tell them when, where and how you’ll be with them. If you and your ex are able to spend time together that’s comfortable and enjoyable for the children, go for it. But bear in mind that even the most artfully-masked tension rarely gets by a child’s keen radar.

The holiday season is also a time to enlist the support and cooperation of your extended family. If you know you won’t be with your children on Thanksgiving Day, invite the clan over when the children will be with you. Encourage the grandparents to fly in when they can spend time with the kids, even if that means celebrating a week before or after the official date. Adults tend to attach far more meaning to specific dates than children do, and relaxing your definition of holiday calendars can go a long way towards easing the stress of the season.

Coordination between households is another way to reassure your children that they are held in the loving arms of their family – albeit, a different version of that family. There’s certainly thoughtful consideration to be given to the schedule, and you and your ex-spouse are sure to appreciate each other’s understanding and flexibility around family gatherings, events, and even airline schedules.

The article, “Garage Sale Litigation,” looks at a garage sale in Highland Park, featured in a recent edition of D Magazine, with a memorable visual (of a cushionless couch) that tells much about divorce and how difficult the traditional courtroom divorce process can be. It also shows how collaborative law provides a helpful alternative to those looking to end their marriages with more dignity and respect than what she terms a “garage sale approach” to settlement.

Some of you may have seen this article on Reuters.com a couple of weeks ago. Essentially, the government in Mexico City is considering a law allowing couples to receive an expiring marriage contract. The concept is that since approximately half of the marriages in Mexico City end in divorce and last less than two years, why not offer a marriage contract that expires without the need for divorce? The minimum term would be two years, which the couple could extend if the marriage was going well, and the contract would provide for the division of property and how to handle the children, if the contract were allowed to expire. If the contract expires, the couple is no longer married and they simply move on their separate ways without having to go through the difficult divorce process.

Does this sound familiar? This reminds me of pre-nuptial agreements – or, at least, the intent behind a pre-marital agreement. I also believe this is an area that we may be under-utilizing in Collaborative Law. We all recognize the benefits of Collaborative Divorce in terms of decreasing the animosity inherent in divorce litigation, but how many of us are actively seeking to expand our Collaborative Marriage Planning business? Many of us draft premarital agreements, and we have all seen the ugliness that can surround the formation of the agreement, and the even uglier side of litigation intent on destroying the agreement upon divorce. So, why aren’t more of us extolling the benefits of collaboration in formation of these agreements?

Interest-based negotiation could be wonderfully utilized to set out future individual goals and concerns, and then goals and concerns related to children could be discussed at length as well. Our even-tempered and wonderful collaborative mental health professionals would be in the room to help control the inevitable emotions swirling while discussing these future goals and to facilitate interest based communication. Our knowledgeable and trustworthy financial professionals would be present to help everyone understand the future value of these assets, the possible financial needs of the children, and to generally make sure the greed is tempered with information. We could weave a fabric of understanding and mutual respect in the process, as well as a mutuality of input so rarely found in a standard pre-marital agreement negotiation.

I always discuss Collaborative Law with my pre-marital agreement clients, and suggest they discuss the process with their future spouse, and if they can agree, they include a provision requiring they use Collaborative Law in any future divorce action. If that same couple had already collaborated on the formation of the contract, the Collaborative Law provision would have added teeth, if challenged, because there would be no question of their understanding of the process at the time of entering the agreement. I realize this would require our clients to consider their need for a pre-marital agreement at some point prior to the week before the scheduled wedding date, and also be willing to sit down and dedicate some time and effort to the process. However, with enough success stories related to Collaborative Law easing an incredibly difficult contract negotiation in this area, I believe the practice could easily expand rapidly in that direction.

Many of you are already utilizing this idea in your own practice, but for those who are not, I suggest considering it as a way to achieve a stable, well-reasoned agreement that protects the privacy and dignity of both parties.

Communication is central to any relationship and co-parenting communication and relationships are no different,. Keep guidelines in mind at your next impasse; they might help you avoid an unproductive argument.

1. Say it in a way that the other person can “hear”: There have always been and always will be difficult communication with others. We must not allow our other limited perceptions define other people. Impatience is often a by-product of ignorance. If you are about to snap back at someone who is testing your patience, remember your contempt may be caused by limited knowledge of his/her situation, If you make someone “pay” for being unpleasant, you are going to pay right along with him or her. Use one of the following phrases to keep communication flowing:

· Tell me about…” Maybe there is a situation you want to know more about. Maybe you need more information regarding something that was said. Often the most effective way to encourage others to talk respectfully is by utilizing a general, open-ended comment such as, “Tell me about this.” Then, depending on the response, you can decide how to follow up.

· Have you considered…. If you use words such as “you’re wrong,” you are guaranteed an argument, or at least a loud discussion. Nobody likes thinking they are wrong. Some people believe it is “my way or the highway”. This thinking can, certainly precede an argument.

· Would you mind… is a much better alternative I need you to … The listener’s first response, whether it’s vocal or not, might be “No, I don’t think you do”. Your listener might avoid doing what you need at all costs. There is an element of “I’m better, more important than you” or “you are my minion.”

2. Unblock communication by removing the “Can’t Because” log jam: The words “no” and “can’t because” are like verbal doors slamming in your face. These words create an adversarial relationship between you and the other person because he is not giving you what you want. If an individual asks you for something, remember that you can often work together to come to a possible solution. Rather than telling him or her, “I can’t help pick up the kids today” instead, you might say, “I can’t pick up the kids today but let’s think of who could.”

3. When someone complains, don’t explain: When another person complains, ask yourself if what he or she said is basically true. If it is, say these magic words: “You are right.” Many times, when there is a complaint, there might be a legitimate reason to be so. Instead of reliving what went wrong, acknowledge what he or she is saying and move on to what can be done about it. Explanations extend arguments, and agreeing can end them. In other words, apologize, then act.

4. Avoid extreme words: Refrain from using words, such as “always” and “never.” These words can trigger strong negative reactions. When these words are uttered, there are often passionate denials from the other person. Just state the facts so you can make your concern constructive and preserve your credibility. An imprecise put-down, such as, “You never feed the kids healthy meals,” is doubly inflammatory. It is one thing to say that the kids need to eat in a healthier manner, but this insult implies that the other person does not care about the kids’ health. Instead, pair a neutral request for information with a neutral question. You might say,“I know that the kids’ health is important to both of us. How can we work together to provide healthy meals?”

5. Speak to common interests. Keep the common goal and good in mind. Remember: if an argument turns nasty, nobody wins. Never let the discussion be about your needs or his or her needs. It should always be about your child’s needs.

Most children look forward to the summer break. It is a time for them to dash about in swimsuits and flip-flops after being trapped by the demands of school and schedules the rest of the year. There’s a burst of activities as summer’s commending presence descends, yet many divorced parents find this change in schedule daunting.

A key principle in collaborative divorce is for parents to stay focused on the children’s emotional well-being by cooperating with one another when scheduling parenting time. Children benefit when parents engage in thoughtful planning, communicate respectfully, and are willing to be flexible.

Plan
1. Check the parenting plan. Providing timely notice to the other parent is always the respectful choice. The earlier co-parents communicate their plans, the better. April 1st is the most common date of notice. Parents will want to double check that vacations don’t overlap one another. Children need to spend quality time with both parents. Parents must take in consideration the holiday schedule, which includes Memorial Day, Father’ Day, and July 4th unless set forth in their parenting plan or by mutual agreement.

2. Utilize an online calendar as a repository for the children’s summer activities. Be sure that both parents have access to the account (including passwords, if needed) so that dates, times, and information regarding the children’s summer schedule can be added.

3. With children out of school, childcare might change. Many summer programs fill up fast so “the early bird gets the worm.” Parents will want to discuss these options. With many parents working for much of the summer, alternative childcare providers maybe needed. Parents will want to provide information to one another regarding any individuals that will be providing care for their children during the summer months.

Communicate
1. Parenting plans can’t predict all changes that children encounter as they age. Children’s activities and interests change. Parents are encouraged to schedule a family meeting with co-parents present to discuss expectations for the summer. These expectations might include: behavior while parents are at work, appropriateness of a part time job, caregiving for younger children, adjustments to bedtime and curfew, as well as cost of and participation in summer activities.

2. When vacation planning, provide a detailed itinerary including flight information, travel route (if traveling by car or train), lodging information (relative’s home or hotel), phone numbers, departure and arrival dates. This information is provided for the safety of the children and contact information in case of an emergency, not as a way to control, or is controlled by the other parent.

3. With the change from school to summer, alterations to the schedule are inevitable. When trying to coming up with solutions to issues, instead of making statements, which can be misinterpreted as demands, statements should be framed as requests. Requests can begin as “Would you be willing to … ?” or “Can we try … ?”

Be Flexible
1. There are times when parents believe that their children are “letting them down” during summer parenting time. School-aged children may want to spend “quality time” with their friends while school is out. Children may not want to visit “Dear Old Aunt Sue” over the summer. Children may appear disappointed or become irritable with aspects of the family vacation. Observing and reviewing the expectations that parents have for their children might shed some light on this issue. Being responsive and proactive can nip much of this behavior in the bud.
2. Learning to adapt a “go with the flow” attitude is probably the most widely-used parenting skill in the world. Parents need to be prepared for “glitches” by having a Plan B in the event of illness, lack of funds, and change in work schedules. It makes kids feel safe and secure because they know their parent can handle anything that comes up.
3. Sometimes unexpected situations arise and one parent may request a change to the summer schedule. “Walking in the other parent’s shoes” is advised, and the consideration of a reasonable requested is often appreciated and reciprocated.

Be Respectful
1. Support the children’s relationship with the other parent and avoid competition. Going on expensive vacations or building a blanket tent is all the same to most children. Kids just want to spend time with their parents. As long as parents are present and attentive to their children’s needs, children are happy.
2. Parents can model respectful behavior by being the person they want their children to be. Parents should be on time, follow the parenting plan to the fullest extent possible, and hold their tongue when needed.
3. Parents who openly support and encourage their children’s time with the other parent preserves their children’s self esteem. Summer is no exception.

Children deserve a happy childhood. Parents are well-served to remember the golden rule of co-parenting: What do you want your children to remember about their childhood?

“I’ll see you at the courthouse” and “talk to my lawyer” are powerful words, but often spoken in haste and in the vitriol of litigation. At a time when people are especially mindful of recession and joblessness, the last thing that anyone wants to do is shell out the fees for attorneys to rush to the courthouse for yet another contested hearing. Engaging in the endless cycle of litigation can be taxing not only on the pocketbook, but also on the soul.

In the kinder, gentler approach to resolving disputes about the future of a family, wouldn’t it be better for clients to be empowered to have input on every aspect of their divorces and child custody matters? Collaborative law offers such an alternative to families who want to maintain their dignity and respect the relationship that they had together. This process is driven by a desire to allow both parents to attend the future graduations, football games and weddings of their children whom they will co-parent.

Collaborative law has so many advantages: avoiding mud-slinging court battles and focusing on creating custom parenting plans, creatively solving the problems of complex estate division and, most importantly, maintaining the dignity of the clients and their children.

Collaborative law is gaining greater awareness as more and more couples uset it to successfully manage their divorces. It has even made it to the silver screen, with a mention in the critically-acclaimed movie Juno, where adoptive parents suggest it as a solution to their marital discord.

While collaborative law is not limited to divorce, it has made its foray into disputes over modifications of child support and custody, pre-marital agreements, and even suits affecting parent-child relationships. It is an invaluable process, driven by the needs of clients. Instead of standard access, guideline child support and 50/50 division of assets, the process addresses the interests of the clients rather than their entrenched positions. You won’t get the same cookie-cutter results of a judge, who may be having a bad day, or who may simply impose regimented orders on the clients – orders that don’t address all of the clients’ emotional, psychological and financial needs.

Conversely, collaborative law allows clients to craft, with a team of professionals, an order that is specific to their own lives.

Fundamentally, clients involved in family law matters should ask themselves: “Who would you like to decide the future of your family – you, or a judge?”

Can collaborative law help me reconcile with my partner?
It can give you a chance. Collaborative Law gives you a “peace tent” and therefore an opportunity to discuss reconciliation as well as divorce. Texas Law allows for a “discernment counselor” — that is, a counselor can be used by the parties to help them determine whether reconciliation makes sense for them. Although this Texas Family Code Statute has been around for a while, training for reconciliation counselors is limited. Currently there is a “Reconciliation Project” in Minnesota experimenting with this training. In Texas, there is no formal project but there are efforts being made by individual attorneys such as Steve Campos in Austin and myself. I am exploring training with Houston therapists at this time.

What are the major differences between reconciliation in Collaborative Law and in a traditional court case?
In Collaborative Law, you don’t have the fear of a hearing coming down the pike or a judge not granting the counseling. You and your spouse can also take your time to decide, because you have two years to keep your case alive before it must be tried or dismissed. You don’t have the pressure of a quick trial setting, which will come in four to eight months in most divorce court cases. That can put a lot of heat on a marriage that is considering staying together.

Does my spouse have to want to reconcile too?
Yes. Although some experts say it only takes one person to save a marriage, in Collaborative Law, each of you has equal bargaining power. At the beginning of almost all divorces, one partner wants the divorce and one does not or at least wants the divorce less. It may be that your spouse doesn’t want reconciliation now, but may be open to “discernment counseling” to see if an objective person thinks your marriage can be saved. But, ultimately, it will take both of you to keep your marriage together.

Will all Collaborative lawyers be familiar with these reconciliation techniques?
No. This effort is new. If you or your spouse is interested, discuss this desire with your collaborative lawyer and have her contact Bill Doherty in Minnesota or me in Houston. But all Collaborative lawyers should be willing to be open to the possibility. If there’s a multidisciplinary team, including a mental heath professional, have your lawyer discuss it with the full team. There is no “one-size fits all” reconciliation, and these highly trained communication and financial coaches can be helpful.

There’s been an affair. Can I reconcile through collaborative law?
Yes. Affairs are not death sentences to successful reconciliation. Affairs, although very hard on a marriage, are often a symptom not a cause. If you as a couple are willing to work though this difficult situation, your marriage can become the envy of your friends’ marriages. But it will not be easy. And if one of you is a sex addict, or has some other mental health problem, then that person will have their own therapy to do for perhaps a year before the marriage counseling can begin.

What if we find a reconciliation counselor or coach who says our relationship has a chance. Then what?
If both of you are willing, a reconciliation counselor, or traditional marriage therapist can help. If only one of you wants to try to salvage the marriage, then you will likely end up pursuing a divorce. But if you are part of a community such as a church, mosque, or synagogue then that community may end up contacting the unwilling spouse to encourage marriage counseling itself. They may say, “We heard that the discernment counselor said your marriage is retrievable; why don’t you work on your marriage now?”

What if financial issues are our biggest problem? Will Collaborative Law give us a better chance than the courtroom for learning the skills to handle our financial disputes better?
Courts provide you virtually no opportunity to learn financial skills and the communication required to make those skills work. Some couples create a marital, or “post-nuptial” agreement that includes not only financial matters, but also agreements on how to work on and maintain the marriage. The Collaborative process provides an excellent opportunity to negotiate such an agreement. See previous blogs on this site for more information on “interest-based negotiation” used in collaborative law.

Can family violence be looked at in the reconciliation/collaborative model?
Perhaps. Family violence varies greatly from one family to another. But keep in mind that family violence, especially physical or sex abuse can be very serious and you should proceed very cautiously if you want to stay together. The victim of family violence has every right to pursue the divorce and should never be talked out of it.

If I am interested in reconciling with my partner. . .Why is collaborative law better for me?
Because if you have come this far your partner probably wants the divorce. If you go to court, you will likely lose almost all chance of keeping the marriage together. Most judges know almost nothing about reconciliation, and once the cycle of poor communication and conflict management is made worse by litigation, there will likely be no way back. Unless the Texas Legislature enacts legislation requiring marriage education in almost all divorces, Collaborative Law will probably give you the best chance to make your marriage work. And most importantly, Collaborative Law gives you an excellent opportunity to create a “marriage contract” or even a temporary order that sets out what work you will do on the marriage. For example that contract can say that you will go to a particular marriage counselor for 90 days, for a total of 10 times. You can then return to your Collaborative Law setting to discuss how your reconciliation effort is going.

What if I just want a divorce, Collaborative style?
Then by all means, get one. Reconciliation is a very personal matter, as is divorce, and no one should make you stay with your spouse if you do not want to. Collaborative Law was developed to give you a more dignified way to get divorced, not stay together, and let’s not forget that. Working on your marriage is just an alternative to divorce, not a requirement.

In my experience, one of the areas in which clients are most creative in the collaborative process is in how they choose to structure their children’s expenses in the post-divorce world.   Creativity flourishes in this area because many of the clients’ goals and interests focus on how to minimize the impact to the children.  Therefore, they develop methods and strategies to address current expenses and to account for when the needs and wants of their children change.  Some of the more common approaches include the following:

1. Standard Child Support.  This is sometimes referred to in the litigation model as the “cookie cutter result.” However, even in the collaborative process, some clients choose this for the sake of simplicity. The key here is that they chose it instead of having this result imposed upon them.
2. Standard Child Support plus specifically identifying certain expenses that might be addressed separately/differently.  It is not unusual for one or both parents to express a concern about highly variable expenses that cannot easily be addressed by simply relying upon the standard support model. Examples of such items might include any one or more of the following: Private school tuition, select team sports, extracurricular activities, future/anticipated medical expenses, college-related expenses, etc. Therefore, parents facing these potential issues can prospectively negotiate and agree upon how such issues will be handled without being limited by the support guidelines.
3. Above-Guideline Child Support.  In this scenario, the clients ultimately agree to go beyond what the law presumptively requires in order to meet the perceived needs of the children. There are several reasons for why this might occur.  The predominant reason I’ve seen, however, occurs in cases in which the children’s actual monthly expenses exceed the Standard Child Support amount; So, the parents agree to a higher fixed amount of support instead of trying to jointly manage expense records relating to the children.
4. Below-Guideline Child Support.  Once again, there are several reasons this might occur.  However, the predominant reason I’ve seen is that there just aren’t many expenses, either now or predicted in the future, for the child/children. While one parent might be legally entitled to receive more support from the other in a courtroom, the parents ultimately agree to a lower amount because the actual needs of the children are being met to the satisfaction of both parents.

These are just of the few of the most common solutions I have seen parents accomplish. The most gratifying part of the experience for me is to see that the parents themselves have identified their children’s individualized needs, and negotiated a customized solution that actually addresses those needs through the collaborative process, instead of allowing a perfect stranger in a black robe to impose a solution upon the whole family.