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.

“Getting the house” – once the most coveted prize of a divorcing couple – has become a recession-era issue for divorcing couples.

Excess loan to fair market value challenges, insurance costs, reduced liquidity, increasing utility costs, maintenance considerations and undesirable neighbors all force divorcing couples to reconsider how important keeping or obtaining a residence during divorce really is. If you lived toward the top of your means when married, you cannot divide that lifestyle in half and afford the same kind of home. Even in cases where the divorcing couple wants to sell the home, agreeing upon a value and even the listing real estate broker can be challenging.

The American Academy of Matrimonial Lawyers reported in September 2011 that it had seen an 86% increase in divorce settlement complications over housing debt in the last three years. Fifty-three percent of the attorneys noted a rise in relocation requests for children in custody, but only 21% of those requests were actually being granted.

The federal government is actively considering various proposals to give homeowners that are current on their mortgages some relief to refinance their homes even if the value of the debt exceeds the value of the home. While refinancing a home is not the end-all of the issue of ultimate home ownership during divorce, it may be important to follow this legislation as it moves through the process.

Losing a home is painful enough for adults, but it can be even worse for the children. Switching schools, finding new friends, and dealing with bitter parents can all add to the anxiety of a child. It takes all of the members of a collaborative law team, plus their network of real estate professionals, to create the best solution available within the reality of a given financial picture. Such a network would include an experienced mortgage advisor, a real estate agent, an appraiser and a property management individual who can accurate advise on potential leasing arrangements of the home pending a sale. Great deference by the parties and the team should be given to these professionals and their collective guidance on an appropriate resolution.

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.

“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.

1. Supporting adult children. Judges cannot order child support for a child over age 18, unless the child is disabled. In a collaborative divorce, spouses can work out an agreement that provides for continuing financial support for adult children. How college education expenses, down payments for first homes, and weddings will be financed are often interests identified by divorcing parents.
2. Meeting requirements for benefits. Judges cannot force spouses to delay a divorce until eligibility requirements are met for Social Security, Medicare, or military retirement benefits. You are eligible for Medicare at age 65.  If you are married for ten years and age 62, you may be eligible to draw 50% of your former spouse’s Social Security benefits beginning at age 62. Sometimes spouses agree to delay the finality of their divorce until these ages or time periods have occurred; in the meantime, they may have signed a post-marital agreement (called a partition and exchange agreement) which allows them to divide assets and liabilities yet continue being married.
3. Spousal maintenance (contractual alimony). Judges can order spousal maintenance only if specific circumstances are proven, and there are amount and duration limits. But spouses can agree to spousal maintenance for a variety of reasons, and for amounts and duration that differ from statutes. Contractual alimony can be an attractive option for older couples to help a former spouse who needs time to re-tool skills and education for the marketplace; to help defray costs of health care or insurance; to make a property division more equitable.
4. Estate planning tools. Judges do not have the authority to order people to execute trusts or wills that leave certain assets intact for adult children to inherit. You can agree to do this. Older spouses may even agree to continue designating each other as beneficiaries on life insurance policies they have paid for during their marriage or agree that the proceeds will go into a trust to benefit their adult children or grandchildren. It is not unusual for individuals in a late-life divorce to incorporate estate planning elements in their divorce settlement agreements.

The beauty of collaborative divorce is that it offers a safe environment where spouses are free to explore creative solutions for their unique needs and goals. Janice Green is a Collaborative Law Institute of Texas member. She is Board Certified in Family Law by the Texas Board of Legal Specialization and is a partner in the Austin-based law firm Farris & Green. She is the author of Divorce After 50: Your Guide to the Unique Legal and Financial Challenges (Nolo Press 2010).

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.

An arbitrator hears both sides and makes a decision, instead of letting the parties come to an agreement.  It is very similar to litigation.   A mediator is a neutral person working with both sides to try to reach an agreement.  In Texas, mediation is usually a single negotiating session, for a whole day or half a day.  The mediation can extend to additional meetings, but that seems to be rare in Texas.

In Collaborative Law, no decision is made by a third party, as the terms of divorce are agreed upon by both parties, and there are a series of relatively short meetings, with limited agendas, in contrast to the one big meeting used in mediation.   One way to think of a Collaborative Law attorney is as a guide to creative problem-solving, a process we covered in our last blog post. Attorneys help the other professionals work with the parties to come up with ways to meet their needs for the future.