Collaborative Practice Marin
Why, and When, Should We Create a Collaborative Pre-marital Agreement ("Pre-Nup")


               When couples marry in California, there are laws that automatically apply to their assets and income. For instance, income received as a result of either spouse’s labor, skill and efforts is community property and belongs to the marital partnership. Assets owned prior to marriage or received during marriage as a gift or inheritance is separate property unless it increases in value during the marriage due to either spouse’s efforts.

               These default rules can be changed in a premarital agreement. The process for creating such a contract is an important consideration. The relationship needs to be valued and the communication about financial topics facilitated to encourage open and heart felt discussions about the terms to be included. Instead of having a proposed premarital agreement prepared by one client’s attorney and delivered to the other client, in a collaborative process the couples and both attorneys work together to develop a Premarital Agreement. The process should be commenced well before the intended wedding date to assure the topics can be considered thoughtfully without any pressure related to timing.

               Collaborative practitioners begin the premarital agreement process with a meeting between the prospective spouses and drafting attorneys where we learn together about the clients’ personal and professional backgrounds, as well as their goals for their marriage as a couple and as individuals. Full disclosure of all assets, obligations and income is required regardless of process. During the meeting, we review each person’s financial information and ask questions to ensure understanding. A review of what California law provides is given so those rights and responsibilities are known. Then we identify topics to be included in the document and brainstorm options for solutions. After all possible options are identified, each is evaluated to determine viability and connection to the clients’ marital goals and interests. If consensus about the terms is reached, the attorneys will then prepare a draft agreement for review. If the couple needs time to further reflect on the options together, another meeting is scheduled to hear the results of this conversation. After the draft is read by all, there is a final discussion to confirm the document is understood and consistent with the couple’s intent.


Susan Stephens Coats is certified as a Specialist in Family Law by the State Bar of California Board of Legal Specialization.  http://www.collaborativepracticemarin.org/members/Coats


Photo Credit: Ann Buscho, Ph.D.


Do I Need a Premarital Agreement?

 

            A very frequent question I am asked in my practice is do I need premarital (or sometimes referred to as a Prenuptial) Agreement.  A premarital agreement can be important to someone for a variety of different reasons.  The first important aspect of deciding whether you want or need a premarital agreement, is to understand what such an agreement can accomplish and address.  A premarital agreement can address things like:

 

•           how you are going to treat assets and debts that each of you bring into a marriage (examples include real property, retirement assets, inheritance, student loans, support you pay for a prior relationship); 

 

•           how you want to treat assets your earn or are gifted to you during the marriage (this can include compensation, bonuses, stock option grants, inheritance, etc.);

 

•           how you are going to pay your day to day bills;

 

•           do you want to pay each other spousal support (or do you want to limit it in some way);

 

•           do you want to provide for each other in your estate plans;

 

•           do you want to make gifts to each other;

 

            A premarital agreement can be a very positive experience for a couple when it is approached openly and collaboratively.  The objective of a premarital agreement, in my view, should be to address both parties needs and concerns going into their marriage in a way that allows a couple to (1) start their lives together with a solid foundation of being able to talk to each other about difficult topics and (2) find their own solutions.  Often, people's needs and concerns arise from their past experiences (fears that arise from their parents bad divorce, their own bad divorce, or pressure from their families). 

 

            My feeling is that a premarital agreement should be something that is created together, addressing your respective needs and concerns, and reflecting who you are as individuals as well as who you want to be as a couple starting your lives together.  Such an agreement can help a couple set their expectations going into their marriage and allow them each to express how they visualize their marital partnership.

 

            If you decide you do want a premarital agreement, your next step would be to meet with a family law professional to talk about how to best go about creating a premarital agreement and the different processes and professionals you can utilize to help you.


Lissa Rapoport is a family law attorney in San Francisco and Marin County.  lrapoport@lpslaw.com

Photo Credit: Ann Buscho, Ph.D.



Has Collaborative Divorce Resolution Reached the Tipping Point?


You are faced with an enormous initial decision when you face divorce.  Unless you choose otherwise, litigation is the default.  However, more and more couples are choosing to divorce without going to court, by mediating or collaborating.  Collaborative Law is rapidly becoming the norm, as Gary Direnfeld, LCSW, writes in his blog:

For years, family law litigators were the go to persons to facilitate the distribution of property, support obligations and the plan of care for children of the relationship between separating couples.

Mediation was always a distant alternative to the go to of family law litigators and hence the moniker, alternate dispute resolution.

Beginning the in the early 1990’s and gathering a head of steam into the new millennium and now an unstoppable force, Collaborative Law is biting the heels of mediation.

However, when looking at Google searches, Collaborative Law and Mediation combined as so called alternate dispute resolution solutions are closing in quickly on the family law litigators. As of Sunday, February 21, 2016, Google searches revealed:

Family law litigator: 35,600,000 hits.
Collaborative Law: 12,500,000 hits.
Family law mediation: 21,000,000 hits.

Given the head of steam rising from mediation and Collaborative Law, I would predict that they soon will surpass family law litigation, at least in terms of combined Google hits.

When Mediation and Collaborative Law surpasses family law litigation, which will then be deemed alternate and interestingly, Australia has long since deemed the so-called alternate dispute resolution solutions primary, at least since 1975.

This change in approach to dispute resolution is no minor thing. Given the rise of the so-called alternatives, people at the same time are becoming increasingly aware of the ravages of litigation particularly contrasted against the less costly and more peacemaking outcomes of mediation and Collaborative Law.

It may not just be a sea-change in terms of how people seek to resolve family conflict, but the sea change might also spell the death knell for litigation. Oh sure, there will always be those few who march towards court, but even there, couples are increasingly redirected to resolving matters in the hallowed halls outside the courtroom only returning to have their mediated agreements converted into orders for enforcement purposes. Many are realizing that they may as well begin where they are likely to end up – in mediation, even if going to court.

There’s a definite change a’coming. Indeed it’s here. The only question now is the depth of change and whether litigation will actually survive.

Are you looking to resolve a family dispute. Get with the times. Look at mediation and Collaborative Law.

Gary Direnfeld is a social worker. Courts in Ontario, Canada, consider him an expert in social work, marital and family therapy, child development, parent-child relations and custody and access matters. Gary is the host of the TV reality show, Newlywed, Nearly Dead, parenting columnist for the Hamilton Spectator and author of Marriage Rescue: Overcoming the ten deadly sins in failing relationships. Gary maintains a private practice in Dundas and Georgina Ontario, providing a range of services for people in distress. He speaks at conferences and workshops throughout North America. http://www.yoursocialworker.com

photo credit: Ann Buscho, Ph.D.

How Long Will My Divorce Take? (I want to get it done fast!)

How much time will your divorce take? By the time you reach the decision to divorce, or accept your spouse’s decision, you probably want to get it done and over with! Why prolong this difficult and overwhelming process?

Well, it’s a little complicated. There are a few answers to your question.

  1. Once you and your spouse file and respond to the divorce “petition” the “clock starts running.” Legally, the soonest you can terminate marital status (finalize your divorce) is six months plus one day. The reason is that sometimes a “cooling off” period helps people decide if the divorce is what they really want. So, if you could get all the other divorce-related tasks done, then you could be divorced in six months.
  2. The reality is that divorces often take longer than six months to complete. One reason might be that you could save money in taxes by finalizing your divorce this year or next year. A Certified Divorce Financial Analyst or your CPA can help you figure out the tax consequences of waiting or finishing up sooner. You will have to file and cause your petition and summons to be “served” by the end of June to finish up this year. You would then file as a single person or head of household this year.
  3. Another reason your divorce might take longer is that your situation might be complex financially. If you have assets, debts, a business, retirement savings, pension, income from various sources such as stock options, etc., your financial situation may not be as simple as you think. A financial professional may need to help you sort it out. The law requires that you and your spouse have a full and complete understanding of your finances, and often one or the other of you needs to be “brought up to speed.”
  4. You and your spouse will need to work out a parenting plan if you have children. This important task will help your family recover and heal when the divorce is over. You both love your children, but you may have different ideas about how you will co-parent when you are in two households. It can take some time to develop a plan that fits your children’s needs, your work schedules, your life style, and more. This is not a task you should rush through, as it is an investment in your children’s future mental health, success in school, social experience and life. A divorce coach and child specialist can help, support and educate you about your children’s specific needs and how to soften the impact of the divorce on them.
  5. Delays in the divorce process are often caused by emotional factors. Conflict, arguing, uncooperative behaviors, evasive or hostile tactics will cost dearly in both time and money. Grief, sadness, anger, depression, and other emotions get in the way of making good decisions during the divorce, and this is a time when you will need to think clearly and carefully about your decisions. In fact, emotions might be the most costly part of your divorce, and it is well worth your time to do the emotional work you need to do before you begin to negotiate your divorce. A therapist or divorce coach can help. Often people turn to attorneys first, but divorce is an emotional process, more than a legal one. Find the emotional support you need before you start.

Your divorce will inevitably be a stressful event, but you will get through it. You should take the time you need to complete the divorce, without rushing through the important decisions you will need to make. If you would like it to be an efficient and less costly divorce, you can control some of the costs and time by doing these things:

  1. Be prepared emotionally. Get the support you need and take care of yourself.
  2. Prioritize your children’s needs. Your child specialist can help you with this. Work with your divorce coaches to develop a realistic parenting plan.
  3. Find a way to reduce the conflict between you and your spouse. Turn to your divorce coaches for help. Working with a divorce coach will make your divorce go much more efficiently.
  4. Be prepared for meetings. Complete the various assigned tasks required, such as collecting financial records, disclosing all financial information, and contacting any necessary outside professionals (realtors, health insurance companies, etc.).

Doing your divorce quickly is less important than doing it well. A good divorce is one that leaves you, your spouse, and your family on the path to a new, healthy, and stable life. A good divorce means that you and your spouse can continue to communicate in a friendly way, and that reduces stress for your entire family. And a good divorce is one that is emotionally and financially efficient.

--Ann Buscho, Ph.D. is a Collaborative Divorce Coach and psychologist in Marin County. http://www.collaborativepracticemarin.org/members/Buscho

photo credit: Ann Buscho, Ph.D.

The Positive Outcomes of Divorce

For many, the word “divorce” conjures up negative thoughts and impressions. We gasp: “what about the kids? I thought they were happy? There go the holidays.” No one wants to be part of those statistics, but many of us are or will be. So, how do we surpass the social and psychological hurdles of this transition to realize the positive outcomes of a divorce?

The decision to end your relationship and get divorced is a difficult one. The process can be fraught with emotional stress and interpersonal conflict.  To make things worse, any positive attitudes one may have related to this change are often overshadowed and dismissed as inappropriate or unhealthy. However, cognitive behavioral therapy provides us a unique insight – balancing negative thoughts alongside positive thoughts is a sign of good mental health. 

If you are considering divorce or recently divorced, here is a glimpse of the bright side of your decision:

Positive Attribute #1: Positive modeling for your children

By choosing to end an unhappy relationship, you teach your children an important life lesson: people change. Although change can be difficult, it is an integral part of our natural and social world.  By being a positive model for change, you are teaching your children how to cope in tough situations and helping them understand the complex nature of relationships.

Positive Attribute #2: Your physical health will improve

Research shows that telomeres, small areas at the end of chromosome strings protecting your DNA molecules, shorten or die off as you age or when under stress. This shortening process is associated with premature aging, cancer and a higher risk of death. However, you can reverse this process and restore these vital cells through improved lifestyle changes and healthier relationship living,

Positive Attribute #3: You will learn about yourself

It is common for people to wonder “Why me?” when considering or going through a divorce. This process of self-reflection is a critical step in understanding your psychological make-up and to perhaps avoid the experience again. Entering counseling, talking to a trusted friend, or conducting your own soul searching are ways to truly connect with your deepest inner self and help you transition.

Positive Attribute #4: Your mood will fluctuate, but on your terms

Mood management is very hard for some and especially challenging if you are leaving a situation in which your mood was subject to the mood of another person. After a divorce, your mood may fluctuate – but at least it will be your mood yours to control, and yours only.

Positive Attribute #5: Self confidence

Divorce can be complicated, messy, and very emotionally taxing. Once you survive the transition, you will feel alive with the confidence that you made a decision to better your life. This esteem will lead to a sense of empowerment and deep self-knowledge that you are in control your happiness.

--Erika Boissiere, MFT, is a licensed marriage and family therapist, specializing in couples, relationships and marriage therapy. She is the founder of The Relationship Institute of San Francisco, http://www.trisf.com


photo credit: Ann Buscho, Ph.D.

Can a Divorce Team Save You Money?

You made the very serious personal decision to terminate your marriage. This decision necessarily takes you to the procedure known as divorce (AKA Dissoluiton of Marriage in the Court).

You found yourself an attorney who discusses the different processes with you that can be used to divide assets and debts, set a child sharing plan, and set support. You say, “We don’t want to go to court – we just want to settle.”

The Collaborative Family Law model provides the most complete and efficient process to meet your goal. The hallmarks of the Collaborative Law divorce process are an agreement from everyone at the outset to exclude all court proceedings, and engage the services of various professionals, known as “the team” to assist in the resolution of all issues.

Why is a “team” needed? Why do we need a team just to get a divorce? If you don’t have any assets, income or children, then you don’t need a team and you can stop reading. If you do have any of these, I encourage you to continue.

ALL parties in a divorce in California no matter what process is used are mandated by law to exchange Preliminary Declarations of Disclosure. It means each side must provide in writing to the other a disclosure of all assets and debts. There is considerable debate regarding the extent and specificity required, but the goal of the law of disclosure is to adequately inform both sides before decisions are made regarding dividing assets and liabilities.

The main advantage to having one neutral financial person as part of a Collaborative team is that you deal with just one individual working to provide fair and accurate information to both parties in a divorce. Both parties provide financial information to the single financial expert. He or she verifies and organizes it, and reports the information in an understandable form to both parties and their counsel. Everyone is on the same page.

In comparison, in many “litigated” cases, a joint expert is not retained at the outset of a case, and after a great deal of increased animosity, distrust and anxiety, not to mention expense, the parties either reach the point of a joint expert or continue to battle each other with their own expensive experts – two instead of one.

Many times even the most sophisticated party in a divorce may be surprised to learn some information in the exchange. For example, husbands and wives can be wrong about how title is held on a property, whether something is community property or not, or the true value of a given asset. Clear, organized information such as this is essential to the parties in a divorce to reach reasonable and informed solutions.

The independent financial specialist also assists in determining the true income of both parties and the relative expenses for separate households going forward. Compensation packages for W-2 earners as well as the self employed have become increasingly complex with the proliferation of compensation such as Restricted Stock/Units, Performance Restricted Stock, Stock Options, claw back provisions, insider trading rules, irregular bonus payouts, profit distributions, 401K and profit sharing plans. Employment benefits can impact both asset division as well as ongoing income available for support. Self employed individuals often have unrealistic opinions of their worth or income.

The parties and their respective counsel need accurate, efficient documents and information in order to adequately educate and advise the parties as to the best solution and informed decisions for their particular case.

Even more important than the financial considerations in a divorce is the attention needed to preserve the best interest of the children. A child specialist can be the most valuable person on the Collaborative team.

First, the children need to be assured early and often that the separation of the parents is not the fault of the child. The child may be in need of therapy that neither parent is able to recognize or facilitate because of his or her own emotional upheaval. The child needs a neutral place to discuss his or her input and even vent, without fear of recrimination from a parent. Children of different ages have different needs and concerns.

All of this can be discussed with the parents and the child specialist in a safe and calm situation in order to reach a suitable, workable family child sharing plan. Every mental health expert agrees that continued animosity and conflict between the parents in divorce renders harm to the children from which they never recover. The Collaborative team, with the help of the child specialist, has the best chance of avoiding this tragedy.

If parents are unable to agree regarding the sharing of the children in a litigated divorce case in court, the family frequently undergoes a costly custody evaluation process and may have their own “expert” to review the work of the expert conducting the evaluation. Once again, you have the potential for three experts instead of one, as well as counselors and therapists, coming in at a much later stage of the proceedings after further polarization of the parties and damage to the children. The structure of the Collaborative team and process can “put everyone in the same room” from the beginning of the process.

Equally important to the team are the coaches for each of the adults. Divorce is one of the most emotional processes a person can go through in a lifetime. Everyone can use assistance from time to time for insight and balance while dealing with the inevitable feelings of loss, uncertainty, fear, anger and overall anxiety. Your attorney is not a psychologist. It is the duty of the attorney to maintain as much objectivity as possible in order to advise the client in the decision making process, and the individual coaches are a tremendous assistance in facilitating the parties to reach resolution.

With a professional Collaborative team in place from the outset of a divorce, you will be provided information, organization, support, advice and assistance for the entire family in the transition process for the best possible solutions. Otherwise, you may end up with a team or two anyway, but in a courtroom instead of a conference.

 

Win Heiskala is a family law attorney in San Diego. She graciously allowed CPM to repint her blog piece, and can be contacted at http://www.blsapc.com/ 

photo credit: Ann Buscho, Ph.D.

Three Ways to Increase the Odds Your Divorce Process Will Feel Successful

Divorce is a painful time no matter whether you are the one to initiate the process or you are the one who is reluctantly dragged through the process.  You and your spouse together have the choice of how to go about ending your marriage and moving into a better space.  The following are three ways to feel you have control of the process and its outcome.

  1. Educate yourselves about your divorce process options.  One way to do that is to attend a Divorce Options Workshop put on monthly by Collaborative Practice groups in counties around the state.  Then decide which option will work best for you and your spouse.
  2. Interview attorneys and other professionals whom you expect to have help you make agreements for the finances and your children's care.  Ask about their commitment to out-of-court processes, such as Collaborative Practice, where the ultimate goal is to reach agreements that you can each honor.  No matter the process you choose, look for professionals who are qualified members of a Collaborative Practice group.  They have most likely committed to practice standards and ongoing training.  These professionals are also the most likely to follow a shared model for Collaborative representation and to have made the effort to become trained as effective Collaborative professionals.  Research has shown that one of the best predictors of a good divorce process and outcome is the selection by divorcing spouses of two attorneys who respect one another and have a good track record of settling cases together and working together effectively to help clients reach creative, respectful solutions.
  3. Do everything in your power to reduce conflict between you and your spouse.  Enlist a neutral financial professional to gather your financial information and supporting documentation, provide the results in understandable formats, educate both of you as needed on the finances, and help you understand the financial and tax consequences of your ideas for settlement.  Enlist divorce coaches to help you create a parenting plan that will carry you through the different stages of your children's development.  Divorce coaches can also help you deal specifically with the emotions connected to the divorce process and provide effective communication tools.  For more help, one or both of you might seek relief from your pain and disappointment from a licensed mental health professional.  If you select the Collaborative Divorce process, tell your friends and family that you know they love you and want the best for you and that you are getting the information and advice you need to sit down and have the difficult conversations with your spouse so that you can to create a good life for yourself.   This will empower you and make you feel successful.
Judith F. Sterling is a CPA, Certified Divorce Financial Analyst, and Collaborative Financial Specialist practicing in Sonoma and Marin Counties.  

photo credit: Ann Buscho, Ph.D.


Divorce and Special Needs Children

Parents facing divorce usually worry about how their children will deal with the emotional repercussions of a divorce.   Parents of a special needs child may worry even more.  Studies suggest that the divorce rate for parents of disabled children is about 80%.  This may be due to the additional stresses the family experiences, and it highlights the increased need for effective co-parenting and protection for the children.  We at Collaborative Practice Marin believe that Collaborative Divorce is the best way to develop a plan for special needs children during and after divorce.   This article, written by a Collaborative family law attorney in Virginia, describes the collaborative approach to divorce in families with special needs children.  http://kaleslaw.com/blog/?p=447

Jonathan Kales is a Collaborative family law attorney at Kales & Kales, in Virginia.

photo credit: Ann Buscho, Ph.D.


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About Collaborative Practice Marin

CPM is a community of legal, mental health and financial professionals working together to create client-centered processes for resolving conflict.  We are located in Marin County, California. 

Why Collaborative Divorce?

“Divorce is never easy but the collaborative process made mine bearable.  I had more control and therefore less stress and anxiety because I had an active role.”

~JF

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