Collaborative Practice Marin
Five Do’s and Don’ts for Avoiding Runaway Lawyers’ Fees in Your Divorce


You’ve heard the horror stories about people who spend their retirement and college funds getting divorced.  And you don’t want to be that person.

But maybe you haven’t heard the other kind of horror story: the people who, out of fear, refuse to get essential professional help—even though they can afford it-- when making major decisions that will shape the rest of their own lives and the lives of their kids.  Nothing costs more than going it alone when you shouldn't.  Help from the right professionals at the right time could steer you away from costly mistakes and conflict, and guide you toward peaceful resolution.

Bottom line:  you and your spouse have probably saved money for a rainy day,  as and when you could.  When you're divorcing, it's raining.

Here are five smart, easy ways to make sure that every dollar you pay your professional helpers brings you value and leads toward resolution.  Follow these five rules, and you can be pretty certain that you spent your hard-earned money for services that help you through your divorce in the best possible way.  

  1. Get the help you need, and get it early.  Divorce lawyers and their colleagues know stuff that you don’t.  Always remember: when divorce happens, for many people the weather forecast is going to be, "cloudy with a high likelihood of showers or thunderstorms."  That’s because  even the most reasonable, cooperative divorcing partners often run into challenging issues that have no easy, quick fixes.  If you’ve got kids, if one of you needs support from the other, if there are pensions and houses to be valued and divided, the truth is you’re both likely to come out of the divorce healthier and wealthier if you retain a great team of professional helpers to advise both of you early on, before the inevitable showers and storms hit.  Nothing is costlier in a divorce than dealing with crises and emergencies without good helpers already in place to keep both of you calm and on course when the going gets rough.
  2. Choose your lawyer at least as carefully as you’d choose a new car.   It’s obvious that  the cheapest car isn’t necessarily the safest, or the most fuel efficient, or the most comfortable.  Choosing your divorce professional(s) by seeking  the lowest hourly rate is an even worse strategy.   Your lawyer is going to be your guide, support person, wise counselor, advocate, strategist, and much more, during one of the most challenging life passages you’ll ever go through.  Look for experience, wisdom, empathy, and rapport, because if these qualities aren’t there in abundance then you can’t possibly get value for money.  Finding the right person will ensure that you make the best possible decisions for the future and that you avoid pointless conflicts with your ex.
  3. Take advice and horror stories from friends and relatives with a big spoonful of salt.    Your best friend or your brother-in-law the litigator are inevitably going to align with you, and may think that they are helping you by telling you they always knew your spouse was no good. They often want you to smash your ex into the dust as punishment for hurting you.  And they usually aren't the most reliable sources for finding the right divorce lawyer--the lawyer who understands that a big part of the job is helping YOU calm down and recover equanimity before making major life decisions. The one who knows that Snow White rarely marries Hitler--that most divorcing couples are ordinary flawed human beings who make mistakes and can aspire, with the right help, to do a better job in the divorce than they did in the marriage.  There's truth in the old saying that criminal lawyers see bad people at their best and divorce lawyers see good people at their worst. The wisest family law judge I ever encountered started his  morning law and motions calendar by saying, "If anyone leaves my courtroom happy, I've made a dreadful mistake."  What he meant is, hardly ever are there pure heroes and villains in divorce court, and the real task is not to choose between good and evil but rather to ensure that people emerge from their divorces with reasonable outcomes. So, when your friends and relatives try to support you by badmouthing your ex and advising you to come out fighting, tell them it's not helpful and you'd rather they bought you a day at the spa.
  4. Choose a warrior and you'll get a war.  Choose a peacemaker and you'll get peace.  Nothing is costlier than litigation. Nothing.  And nobody benefits except the lawyers, who earn more by going to court than in any other divorce-related activity.  Did you know that when people take their issues to court, they are still almost certain to end up with a settlement rather than a trial...but the settlement negotiations often don't even begin until the money has nearly run out and the lawyers suddenly change the focus from all-out war to making a deal.    This is what I learned from decades as a highly successful family law litigator:  forget winning, and--crazy as this may sound--forget fairness.  Instead, aim for a civilized, consensual, out of court process in which you and your ex are helped to really listen to one another, information is treated as a shared resource rather than a weapon, and the goal is a "good enough" resolution that is acceptable to both of  you in light of the available resources.  A peacemaker lawyer is not a pushover; a peacemaker lawyer is realistic and honest about the terrible cost-benefit to most people of taking their divorce issues to court.  The best divorce lawyers--like almost all family law judges--know that almost no issue requires a judge's decision where there is a commitment to reasonable negotiations aimed at results that are acceptable to both parties.  People who choose that kind of legal advisor don't spend their money on pointless battles that drain the bank account and leave the entire family scarred. Instead, they generally emerge from their divorces able to co-parent their children together and able to get on with life, rather than holding onto anger and living life glued to the rear view mirror.  
  5. Look for lawyers who know how to work in interdisciplinary collaborative teams.  Even the very best settlement-oriented lawyers are expert in one thing:  negotiations and advocacy aimed at a successful resolution of all divorce-related legal issues.  Here's the catch:  most divorcing couples care about much more than the kind of legal issues that lawyers know how to resolve--for instance, how to pay for the kids' college (did you know judges in California have no power to make orders about that?), or how to do creative tax planning so that complex assets are divided in ways that can result in more after tax dollars for both you and your spouse, or how to take care of aged, needy parents.  Neutral collaborative financial specialists can streamline the mandatory financial disclosure process required by law in a divorce, and also help your lawyers craft sophisticated financial results on any issue that you and your spouse care about, in ways that are both superior to and more cost effective than what lawyers alone can generally offer. Furthermore, although both you and your spouse may want a civilized, respectful out of court settlement process for your divorce, let's face it: nobody is at their emotional best when a marriage or long-term relationship is breaking up.  Strong emotions well up at the most inconvenient times and feelings get hurt. Even worse, research in recent years has shown that strong upsurges  of the negative emotions that are commonplace during divorce will completely shut down the most logical, creative, and far-seeing part of your brain and send you deep down into primitive fight/flight/play dead.  That is a condition in which you are biologically incapable of making good decisions, no matter how smart you are.  And that's how high conflict divorces build up steam, because lawyers have no training or skill in helping you get back to your best logical self.  That's why many of the best divorce lawyers now are choosing to work collaboratively on teams that include specially trained mental health professionals working in a coaching model to help ensure that you show up for negotiations thinking smart, in control of your feelings, and able to listen as well as talk.  You may be thinking that lawyers are costly and adding a financial neutral and mental health coaching to the professional team will break the bank, but surprisingly, the opposite is true.  A wise psychologist once said, "If the only tool you have is a hammer, all problems will resemble nails."  With only lawyers, a lot of hammering gets done, but with a full toolbox that includes financial and coaching resources when the situation calls for them, you'll save time, money, and emotional resources too.  This is the most advanced method available for helping couples and families do their divorces well.

If you may be facing a divorce, you owe it to yourself and those you care about to find out  more about interdisciplinary collaborative teams and peacemaking lawyers.  Information is power:   www.collaborativepracticemarin.org

Pauline H. Tesler is a family law attorney in San Francisco and Marin.
  [www.lawtsf.com, www.integrativelawinstitute.org]

Photo credit: Ann Buscho, Ph.D.



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.


What Happens to My Inheritance in a Divorce?

The simple answer is the inheritance belongs to the person who inherits it.  It is their separate property.  However, as with most things, this question is not as simple as it may seem. 

Often inheritance comes in one form, say money, and is later used to purchase something else.  Or, sometimes, it comes in the form of personal property.  As an example, if your grandmother left you a piece of jewelry, that jewelry belongs to you and is your separate property.  However, if you sell that jewelry and use the money to, for example, contribute toward a down-payment of a house purchased with your spouse - what happens then?  Now the answer is not as simple.  

During the course of a marriage, people often make choices as to how they want to use their resources, often focusing on the needs of their family or partnership.  But, when it comes time to uncouple, they may rethink their prior choices.  People may also change their intentions when facing a divorce.  

If the inheritance was used to pay for living expenses, as example, that money is gone and unless you and your spouse agree otherwise, it would not be reimbursable.  

If you take your inheritance and use it to buy something with your spouse, you may be able to ask for a reimbursement of that contribution--if you and your spouse can agree or if you can effectively "trace" the use of the inheritance through records, such as canceled checks, that show the trail of the inheritance.  If you received an inheritance and you believe it was used to purchase something with your spouse during the marriage, the first step would be to review your records or obtain any records you don't have as soon as possible.  This will help you better understand your concerns so that you can consider how best to approach this in the process of your divorce.

 

Lissa Rapoport is an attorney practicing in Marin County.  You can learn more about her here:  http://www.collaborativepracticemarin.org/members/Rapoport

www.lpslaw.com

lrapoport@lpslaw.com


Photo credit: Ann Buscho, Ph.D.

The Law--Is it the Elephant in the Room?

One of the first things people want to know when they are seriously thinking about a divorce is – what does the law say?  I often hear “I want to be fair, but I don’t know what fair is.”  People tend to think the law will determine what is fair.  However, when they hear what the law says, it often seems unfair to at least one if not both of them.   Even when people want to follow the law, it is not always clear. 

In a litigated divorce, when the law is “gray” rather than “black and white,” arguing about how it should be applied or interpreted can drive up costs.  In addition, many other variables come in to play, such as – who is the judge, who are the respective attorneys, what is the amount of money available to spend on arguing, etc.  Furthermore, issues and circumstances that are really important to people are often deemed irrelevant under the law, so they never get discussed nor argued.

 In client-centered processes, like Collaborative divorce or mediation, the law only has as much power as the people choose to give it.  Clients get to decide what role the law will play in their divorce.  They are free to use it for some purposes and to ignore it for others.  Whenever the law is introduced, however, it can feel very powerful and can easily take over. The law can be like an elephant in the room - taking up all the space and sucking up all the air.  So, in Collaborative divorce, we take care to work with the clients about when and how the law will be introduced in the process.  Clients may find the law useful to understand the reasoning underlying the law, the standards of society expressed in the law, and to compare their potential agreements against what they could expect in the legal marketplace.  Knowing all this often helps the clients to make their own customized agreements.  

What else, apart from the law, can people look to for help in making decisions in their divorce?  They may want to consider:  1) agreements they may have made with each other during their marriage, either verbally or in writing, that they want to honor,  2) their individual needs and interests that are important to them, 3)  the needs and interests of other people, such as their children, other family members, friends and colleagues, 4) basic financial realities: what the law provides may not fit their situation, 5)  something that happened in their relationship they may want to honor or account for, and 6) any other factor that is important to one or the other.  Thus, the law is only one of seven reference points for making decisions in a Collaborative divorce. 

The goal for most clients in a Collaborative divorce is to reach a mutually acceptable durable resolution.  An agreement is not durable, or lasting, if a person realizes some years later that they never would have made such an agreement if they had known then what the law provided.  So, Collaborative attorneys want to educate the clients about the law at some point in the process, but will take guidance from the clients as to how and when to introduce it.  Instead of the law being “elephant-size,” we want to “people-size” it.  Then, clients can customize their decisions to fit their particular situation, needs, and interests. 

Nancy J. Foster, J.D. is a mediator, Collaborative divorce attorney, trainer and Executive Director of the Northern California Mediation Center in San Rafael, CA. See more at www.ncmc-mediate.org.

photo credit: Ann Buscho, Ph.D.

Keeping Kids Out of the Conflict During Divorce

Everyone knows that kids should be protected from their parents’ conflicts.  It’s tough to do this when emotions run high, and you are hurting and angry.  When you are in so much pain, you may turn to your children for comfort or support, or you may want to tell them the “truth” about the other parent.  So why is this such a bad idea? 

Kids who are caught in the middle of their parents’ conflict and divorce have worse outcomes than those whose parents prioritize a “child-centered divorce.”  A search on Google brings up many references to the term, a “child-centered divorce.”  There are helpful websites and blogs that advocate for a peaceful (out of court) resolution of the divorce, and a parenting plan that prioritizes the needs of the children.

This means that kids whose parents stay angry and hostile have more emotional and behavior problems that last into adulthood.  The good news is that kids whose parents are able to move beyond the conflict have a good chance at success in life, in school, their relationships, future positive mental health.  

Many parents going through divorce have told me that their children are “fine”; that they are “resilient,” but my experience as a child therapist has taught me something different.  In the privacy of the therapy office, children talk about their parents’ arguments, their worries about money, the accusations of betrayal or their fears about the future.  Because kids worry about their parents, they often cope by trying to look better than they really feel.  Inside they may be deeply pained but unable to talk to their parents when they see how much their parents are suffering.  They intuitively sense that their parents have enough to worry about, or that their parents need to see the children as fine.

So why keep your kids out of the middle?  For their own mental health, they need to love both of you, and if they feel caught in the middle, they may feel they have to choose between you.  This is damaging to children.  Your children know that they have a part of each of you in them, and if they turn against a parent, it is as if they are turning against a part of themselves. 

What happens when kids are caught in the middle?  They feel like they are caught in a terrible tug-of-war.  They may feel they need to determine who is at fault, or what is “fair.”  They may feel burdened by their parents’ emotions and not able to express their own.  They may begin to regress, shut down, or act out.  Teens and young adult children of divorcing parents may try to get involved in the divorce process itself, in unhealthy ways, by trying to mediate, or judge, or advocate for particular outcomes.  And this distracts them from focusing on their own lives in healthy ways. 

Here are some ways to protect your kids:

  1. Don’t speak badly of the other parent.  Don’t blame them, criticize or complain about them.  If you’re a kid, this hurts!  Seek out your friends or a therapist if you need to vent or complain.
  2. Don’t ask your kids to take sides.  Ask yourself if you are doing so, even in subtle ways, and remind yourself that it is healthier for your kids to love both parents.
  3. Don’t send messages or paperwork with the kids when they go to their other parent.  Keep the divorce business well away from them.
  4. Don’t talk about the divorce business, about the meetings, the financial settlement details or division of property.  Legal talk is painful for kids to hear and distracts them from being able to focus on their job—to be kids. 
  5. Don’t have difficult conversations with your spouse when the kids are being transferred from one of you to the other parent. Keep these out of earshot and private.  You would be surprised about how much your kids actually already hear and know.
  6. Don’t ask your kids to keep secrets from their other parent. 
  7. Don’t use your kids as your confidantes.  You need adults to turn to for support.  Connect with friends, family, a divorce support group or a therapist.
  8. Don’t ask your kids about your spouse’s personal life, like if s/he is dating.
  9. Don’t restrict your kids’ time with their other parent because you are mad at your spouse. 

Here some things you can do to help your kids stay out of the middle of the conflict:

  1. Minimize the disruptions to the kids’ routines as much as possible.
  2. Make sure both parents stay involved with your kids.  Make sure they have frequent and ongoing contact with both of you.
  3. Provide frequent reassurance.  The divorce isn’t their fault—they didn’t cause it, and they can’t change it.
  4. Focus on their growth and healthy change as they adapt and adjust to the new family structure.  It can help some kids to say “We are still one family, under two roofs.”
  5. Model respect for their other parent. 
  6. Let the children continue to be kids.  Maintain their play dates and other activities as much as possible.
  7. Imagine the story you want your children to tell about their parents’ divorce, and know that every day you are helping them to construct that story.
  8. Create a parenting plan that minimizes the potential for conflict.  By creating and committing to a set of default decisions, together with your spouse, the potential conflict will be minimized.
  9. Seek professional help if necessary, with or without your ex.

Remember that the divorce is a problem to be solved by you and your spouse, the adults, and your kids will benefit from knowing that their parents will continue to parent them together, even if they are living under two roofs.  Take the time to work with a professional, if necessary, to resolve your grievances with your spouse so that your children don’t carry the burden of bitterness and grief into their future.  Thousands of kids go through divorce with their families, but you can help them to overcome the challenges, become more stress-resistant, resilient, and flexible, by keeping them out of the middle of the divorce.  One to two years after a “child-centered” divorce, most kids are on track and healthy.

--Ann Buscho, Ph.D. is a Collaborative Divorce Coach and psychologist in Marin County.

photo credit: Ann Buscho, Ph.D.

What Happens to Social Security Benefits When You Divorce?

Questions abound about Social Security benefits when there is a divorce.  Social Security benefits are Federal benefits and are not subject to division in state courts.  That being said, under current Federal law unmarried lower earning spouses who had been married for 10 or more years before divorcing and are at least 62 years of age are entitled to ½ of the higher earning spouse's benefits under what is known as a derivative benefit or 100% of their own benefits - whichever is higher even if the higher earning spouse has remarried.  In order to receive the full ½ derivative benefit, the lower earning spouse must be at his or her full retirement age and the higher earning spouse must be of minimum retirement age or age 62.  If the higher earning spouse begins collecting Social Security benefits before full retirement age, the amount of the lower earning spouse's derivative benefit will be reduced by a percentage based on the number of months before the higher earning spouse reaches full retirement age.  One earns a maximum of four credits per year.  In 2013, one could earn one credit for every quarter one earned at least $1,160.

These derivative benefits for lower earning spouses have no affect on the benefits of higher earning spouses, their current spouses, or other family members.

If you are the lower earning spouse and are curious about whether your ex-spouse's benefits are more than 50% higher than your benefits, contact the Social Security Administration who will provide you with the benefit amounts to which you may be entitled after first verifying your relationship to your ex-spouse.  Privacy laws prohibit the Social Security Administration from providing the ex-spouse's actual Social Security Statement.

Should the higher earning spouse pass before the lower earning spouse and be fully insured (meaning having 40 credits), the lower earning spouse may be eligible to receive 100% of the higher earning spouse's benefits.  These benefits are called survivor benefits.  The survivor spouse must be at least age 60 or at least age 50, if disabled.  The survivor spouse must have been married to the ex-spouse for at least 10 years and be unmarried unless married after age 60 or after age 50 and at the time of remarriage were entitled to Social Security disability benefits. 

If at the time of divorce one legally changes his or her name, it will be important to notify the Social Security Administration.  For most people this would mean obtaining a certified copy of the divorce decree showing request for name change from the county Superior Court; providing either an original US issued driver's license, state ID card, or US passport; completing an application for a Social Security card; and delivering all items to the local Social Security office or Social Security Card Center.  The Social Security Administration notes that if mailing, original documents and certified copies will be returned with receipt.

For more information on Social Security benefits visit http://www.ssa.gov.  Or contact the Social Security Administration directly for answers to your specific situation.

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.


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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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