There he sat in my office, tears streaming down his face. “I can deal with the pain of the divorce when it comes to my own feelings, but it truly breaks my heart to see my children upset and not doing well because of this decision my ex-wife and I have made.” Unfortunately, this is not an unusual complaint while clients are in my office for therapy.

I have been working in my family and individual therapy practice, helping people discover options to improve their marriages, for more than 15 years. Over four years ago, I also began working on collaborative law teams, helping people who have made the choice to divorce go through that process in the most peaceful, dignified and private manner possible. The two parents can create a parenting plan far better than any judge would be able to – not because the judge doesn’t care or want to do what is best for the children, but because nobody knows the children better than the parents. Additionally, the collaborative law option makes it possible to consider the parents’ needs for scheduling while creating the parenting schedule for the children.

Children are very fortunate when they have parents who will put the kids’ psychological needs ahead of the parents’ emotional needs. So, if you are a parent searching for ways to minimize your child’s stress and distress over your divorce – then congratulations on putting your child’s needs at the top of the list of priorities!

Suggestions from my professional and personal experience:

1. The parents should address the divorce with the children together. Have a plan about how you will discuss this with the children before starting the conversation. Help them understand that the divorce is a decision between the two parents, and is not the child’s fault. Children are typically very egocentric, and believe that many things in life happen because of their own influence. This affirmation should be repeated to them often through the course of the divorce and after the divorce. Just because you say it once doesn’t mean that they believed it or retained that concept.

2. Don’t burden the children with adult information. They are children and need to be thinking about kid things – not your financial stress nor emotional bankruptcy caused by the divorce. Do not create a situation in which your child becomes your best friend and confidant. “I’m only telling my children the truth – they deserve to know the truth!” is one statement I hear often. Unfortunately, the “truth” is often unflattering to the other parent, and is a thinly veiled method used to belittle the other parent.

3. Don’t burden the child with the responsibility for your happiness. Even small things can make a big difference. For instance, if your daughter is leaving to go to her mom’s home for parenting time with her, how will it impact your daughter to tell her that you will miss her while she is gone? Perhaps it will create a burden for her to worry about your emotional state! While you were trying to comfort her by saying you will miss her, you might in actuality have been trying to comfort yourself. Instead, consider saying, “I will think of you often while you are gone, and I am planning to make myself happy while you are gone, and I want you to concentrate on being happy while you are with Mom.”

4. NEVER say anything bad about the other parent. Don’t allow your friends or family members to say anything bad about the child’s other parent. DON’T say, “Your Daddy wanted this divorce. I don’t!” OR, “I can’t buy you that because I give all your money to your mother.” You might consider instead saying, “Your Daddy and I don’t agree on many things; however, one thing we both agree on is that we want you to be happy. We will be doing everything we can to help you create your happiness in both homes.”

5. Look for signs of depression or anxiety in the child. Not every child becomes clinically depressed or anxious during or after their parents’ divorce. Children typically adjust to divorce in a similar manner to how their parents adjust. However, if you see signs such as temper outbursts that are unusual for your child, distinct changes in school performance, or withdrawal from friends and/or family, then talk with your child about your concern. Help your child identify what emotions might be triggering the different behavior. If you have a hard time getting the child to talk, then consider child-based therapy provided by a professional trained to speak with children.
Overall, many children can successfully navigate the choppy waters involved in redesigning a family unit. If you have taken the time to read this blog, you most likely are working hard to help your child with the marked changes a divorce presents for all involved. If you have already divorced, then watching the child closely for depression or anxiety will help you know what to do to help your child. If you have not already divorced, please consider strongly the possibility of divorcing with collaborative law professionals. We have all been trained to help you keep the children’s interests at the forefront.

The story wouldn’t have been possible without the work of several key Collaborative Law Institute of Texas members, including Linda Solomon, the mental health professional who worked with the Twomeys on negotiating a divorce in which they wanted to continue running a business together, Tracy Stewart, the financial planner who provided Pilon with invaluable information about the financial aspects of collaborative divorce, and Norma Trusch, the lawyer who was quoted in the article, who also provided Pilon with information on how collaborative divorce works in Texas.

The story focuses on divorce during challenging economic times, but in the process, shows the advantages of collaborative divorce over traditional courtroom divorces, and places a national spotlight on a Texas case — which is fitting, given the pioneering role Texas has had in establishing collaborative divorce as a viable and preferable alternative.

This previous blog post outlined some of the common approaches that parents take in regard to child support. In this post, we would like to review some of the more common alternative methods that parents frequently choose in the collaborative process. These include:

1. Establishment of a Joint Support Account. Using this method, the parents agree to establish a joint checking account for the purpose of paying for agreed expenses relating to the children. The parents determine in advance the following:
(a) the categories of expenses that will be funded through the account;
(b) the frequency in which they will review the cost of these expenses;
(c) who will have access to the funds; and
(d) the method for determining the amount to be contributed by each person.
Here is an example of a very basic joint support account:
Categories: Private school tuition, school related activities, extracurricular activities, and clothes.
Frequency of Review: Semi-annual review to evaluate activities and ensure sufficient funding.
Access to Funds: Mother with pay for all agreed upon expenses.
Contribution: 60% from Father; 40% from Mother.
This method is excellent for parents who believe in proactive planning for upcoming expenses and hope to minimize the changes associated with the children’s lifestyle.

2. Debit/Credit Account. This is exactly the same concept as the joint account EXCEPT all agreed upon expenses are charged to a credit card instead of funding a bank account in advance. Using this method, the expense is incurred first and then the parents pay the bill based after-the-fact, based upon a pre-arranged percentage formula. All other aspects of the joint account are the same.

3. Combination approach. This method combines one of the approaches described above with one of the payment methods described in the previous blog post on this topic. A commonly-seen example of this occurs when the parents agree during the collaborative process to establish a Joint Support Account to handle specific expenses in addition to a fixed amount of monthly child support that is paid by one parent to the other.
In the collaborative process, each of these options (including ones described in the previous blog post) is reviewed and evaluated to determine if it would be appropriate given the parents’ goals, concerns, and interests. The parents can then determine the method that makes most sense for them as a restructured family.
All of the foregoing options have been tried and tested in many Texas collaborative divorce cases. They can be extremely effective in addressing the ever-changing needs of the children while also building in more financial flexibility for the parents. In the long run, such customized solutions can reduce the chances that either parent will feel the need to seek a future support modification, as they are not straight-jacketed by a one-size-fits-all child support order.

Last week, a group of collaboratively-trained lawyers, financial neutrals and mental health professionals from around the state gathered together in San Antonio for the purpose of discussing some of the fears and challenges that divorcing couples face. The gathering was part of the annual Advanced Family Law Conference at the Marriott Rivercenter, which is one of the largest continuing education conferences in the nation.

Kris Algert, the current president of the Collaborative Law Institute of Texas, kicked off the luncheon, which focused on fostering a round-table discussion among the professionals. CLI-TX Board Member Jennifer Tull led the discussion and selected a compelling topic: Rights versus Results.
Those facing divorce almost invariably want to know what their rights are. Who will get the children? How much child support can be expected? Who is responsible for the credit card debt? What happens to the house? To the 401(k)? The list of questions can go on and on. Yet the core of all such questions is not really a fear over rights, but rather, fear of an unknown result. This distinction highlights one of the many advantages of the collaborative method of resolving family law issues: Spouses, rather than judges, become the decision-makers.

This is a novel approach, but it is also supremely intuitive. After all, who better to make decisions regarding a divorcing couple’s children and their finances than the spouses themselves? Even through the pain and the other negative emotions that accompany a divorce, divorcing couples can still make better choices for themselves and their children than a judge or jury can. This is where the professional team comes in – helping guide the couple through an otherwise overwhelming process. And when spouses ask about their rights, the trained collaborative team of lawyers and neutrals are there to restore the focus to achieving a result that both spouses find acceptable and in their children’s best interests.

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.

In many households, health insurance is covered with a policy that is tied to one of the spouses. If the other spouse is a homemaker, or employed where no health insurance is provided, that spouse needs to find replacement health insurance. Prior to the Patient Protection and Affordable Care Act (the Healthcare Reform Bill), the only health insurance options in this situation were private policies and the policies made possible by the Consolidated Omnibus Budget Reconciliation Act, better known as COBRA.

COBRA coverage for former spouses provides continuation of health insurance for up to 36 months. COBRA coverage is more expensive than employer-subsidized premiums, but at least it is continuation of existing coverage. One of the risks of COBRA is the chance that this spouse will develop a health issue during those 36 months. If that happened, the health issues could be considered a pre-existing condition when applying for a private policy. Many people don’t realize that even with the Healthcare Reform Bill, COBRA coverage may not be an option for some couples.

The President and CEO of the National Center for Policy Analysis, John C. Goodman, recently noted in a Wall Street Journal editorial that employer-sponsored health insurance may be a thing of the past, when employers calculate how much they can save by dropping their employer-provided insurance and, instead, paying the fine of $2,000 per employee. He notes, “[E]mployers are quickly discovering that it may be cheaper to pay fines to the government than to insure workers.” If that happens, employees would have to decide whether to buy the government-subsidized health insurance in the new health insurance exchange, to purchase private insurance, or to pay a penalty on their tax return.

During the litigated cases in which I have consulted, there was minimal discussion of how spouses would get health insurance coverage. So minimal, in fact, that the only thing said was “Go get yourself insurance” or “Just sign up for COBRA.” There was no concern over the long-term arrangements for health insurance coverage.

In collaborative cases, each spouse’s need for long-term health insurance coverage is taken seriously by the entire collaborative team. I have been on cases where the final decisions were postponed while the non-insured spouse made definitive arrangements to obtain the right health insurance coverage without any time lapse. This is just one of many important issues showing how collaborative law provides the flexibility and innovation to allow for individualized solutions.

I practice law in the Panhandle of Texas, where there aren’t metropolitan areas the size of Dallas, Houston, San Antonio, or Austin. My town (Amarillo) and Lubbock are the two largest cities in our area. Attorneys here usually practice in all of the surrounding smaller towns, and attorneys in those towns come to Amarillo for cases as well.

Collaborative law was not embraced as quickly here as it was in Texas’ larger cities. We have virtually no backlog of cases in any of our 26 counties, and, as a general rule, it is fairly easy to get a case to trial as quickly as the lawyers and clients desire.

Fortunately, in 2007, a group of 15 Panhandle family law attorneys decided it was time for collaborative law to be introduced to this part of the state, and we all attended the basic training for collaborative law. Since that time, our collaborative practices have grown steadily.

There are so many advantages to handling legal matters, especially family law cases, through collaborative law in smaller towns.  The biggest advantage is the privacy it affords. At the risk of sounding stereotypical, lots of people in small towns make it their business to know everyone else’s business. This is easily accomplished if there are numerous public court hearings regarding the contested issues in a divorce case. However, if a case is handled through collaborative law, the participants’ matters are kept confidential. It is a great way to keep one’s private affairs private and not the talk of the local coffee shop.

Of course, all of the other advantages also apply, such as the participants’ remaining in control of their own outcomes and being able to create solutions not necessarily mandated or occasionally sanctioned by applicable law.

The main obstacle that confronts collaborative law attorneys and clients in smaller areas is the lack of trained neutral financial and mental health professionals. It is difficult to keep the process affordable if the collaborative team requires professionals from distant locations. As a result, many times collaborative law cases in my area have to proceed without these important and helpful team members. Collaborative law attorneys need to recruit and encourage local professionals in these fields to go to collaborative law training.

Obstacles notwithstanding, collaborative law is alive, well, and growing in our part of the state.

June 11, 2010, was another red-letter day in the history of the collaborative law movement.  At 10 a.m. on that day, the first meeting of the Collaborative Law Section of the State Bar of Texas was held in Fort Worth, in conjunction with the annual Texas State Bar Convention.

The meeting was preceded by an excellent presentation by Larry Hance, “Introduction to Collaborative Law.” The best part of the presentation, for me, was realizing how many incredible milestones we’d celebrated on our way to this historic meeting.

Texans first learned about the process in January 2000, and just two years later, we were hosting the third Forum of the International Academy of Collaborative Lawyers (IACP) in Galveston. From there, we invented the Texas Team Model of collaborative law, which is spreading rapidly around the world; several Texans have gone on to be leaders in the international movement.  Collaborative Law Sections of local bar associations now exist in Houston, Dallas and Lubbock.  And, most memorably, the Uniform Laws Commission formed a drafting committee, chaired by a Texan and with three Texas participants, to draft a Uniform Collaborative Law Act, which was passed by the commissioners in July 2009.

But back to the Fort Worth meeting:  I had the distinct honor, as provisional Vice-Chair, to call the meeting to order and greet the more than 30 attorneys in attendance, many of whom came to find out just what collaborative law thing was all about.  After approving the By-Laws of the Section we elected a slate of Officers (Kevin Fuller, Tom Ausley, Lawrence Maxwell, Jr., Harry Tindall, Janet Brumley, and me) and Executive Council Members (Brenda D. Keen, Anne Shuttee, and Sally Holt Emerson).

What was most gratifying to me during this meeting was to experience the unqualified support the Section has received from the Texas collaborative establishment.  It was my pleasure to be able to announce that the Section had received a pledge of $10,000 in seed money from the Collaborative Law Institute of Texas.

Quite a few civil lawyers were in attendance, and Larry Maxwell was there to assure them that  the core fundamentals of collaborative law, as outlined by Larry Hance, will transfer to resolving disputes in all areas of civil law. Several of the civil lawyers in attendance volunteered to participate as members of the Section’s Civil Law Committee.

Maxwell also reported the Uniform Collaborative Law Act will be before the Texas legislature in 2011.

The meeting was a high point of my professional career. It isn’t often that you’re able to see your dreams come true. The day I attended my first collaborative law training was a day that changed my life.  I had found a way to practice law that corresponded with my values and standards of good practice.  My dream was that one day it would become a part of the mainstream of legal thinking — and I believe that June 11, 2010, was that day.

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).

The article includes some intriguing revelations from CLI-TX member Janet Brumley, who contrasts how she litigated as a divorce attorney in a courtroom setting with how she now helps clients achieve goals more productively and peaceably in Collaborative Law — looking at the future rather than the past. Another CLI-TX attorney, Carla Calabrese, is also included in the article, addressing how having neutral professionals at Collaborative Law meetings helps balance the dynamic between the two clients.

The article focuses on a Dallas couple who sought a Collaborative Law divorce, Kristin and Rob McCollum. The article shows how Collaborative Law allowed them to have an amicable split which permitted the  best interests of their two children to be their focus. Kristin and Rob’s journey through a Collaborative Law divorce highlights the very best of what CLI-TX has to offer. They were also recently featured in an Ivanhoe Broadcast News segment on Collaborative Law, made available to TV stations across the U.S. Their story, and the fact that they’ve been able to maintain a friendship after their divorce, speaks powerfully to what Collaborative Law can do. We’re glad to see their story getting attention.

More importantly, other  people can be encouraged by the McCollums’ example.  Even difficult and important issues can be resolved in satisfactory ways when people are willing to think outside the box and try an approach other than litigation.