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.
Many people recognize that if they “lawyer up” by hiring the most litigious attorneys that they are asking to have a very expensive adversarial divorce. Saving money is one of the reasons (but hopefully not the only reason) people often choose to do a collaborative or mediated divorce. Yet, even in these non-adversarial processes, the attitudes you adopt and the actions you take can make a modest-cost divorce into a much more expensive one.
Behaviors that increase costs:
Attitudes that increase costs:
You always have a choice about what actions you take and the mindset you adopt. The choices you make will impact how long your divorce takes and the final cost. If you are feeling very reactive and overwhelmed, then seek out a divorce coach or therapist to support you through the emotional currents of the divorce process.
Nancy J. Foster, J.D. is an attorney-mediator, trainer and Exec. Director of the Northern California Mediation Center in San Rafael.
Photo credit: Ann Buscho, Ph.D.
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. firstname.lastname@example.org
Photo Credit: Ann Buscho, Ph.D.
Thank you to Brad Reid and the Huffington Post for this blog article.
Collaborate law is a variation of non-adversarial alternative dispute resolution. Specific collaborative law techniques have been discussed for about thirty years and fifteen or so states have enacted the Uniform Collaborative Law Act of 2009. While primarily focused on family law and divorce, collaborative law may be utilized in other disputes such as employment, insurance, mergers and acquisitions, or issues between family members in closely held businesses. Always consult an experienced attorney in specific situations.
In broadest overview, the parties voluntarily sign a collaborative participation agreement and are represented by attorneys whose representation ends if a traditional contested judicial proceeding begins. While participation cannot be court ordered, courts retain authority to issue emergency orders to protect health, safety, welfare, and financial interests. Attorneys must make a full disclosure of the advantages and disadvantages of collaboration in the specific situation so that a client may make an informed participation decision. There are limited institutional exceptions to the end of attorney representation when a free legal services clinic or governmental entity is involved in the collaborative representation. The parties agree to disclose all relevant and material information (although the agreement may limit the scope of disclosure) and promise to exercise good faith while negotiating. Disclosed information is deemed privileged and may not be utilized in subsequent litigation, subject to modification by the collaborative participation agreement. Exceptions to disclosure exist to prevent bodily harm or a crime, abuse or neglect of a child or adult, and to address professional misconduct or malpractice. The parties may engage appropriate professional experts to assist in the dispute resolution process. Courts may enforce an agreement that does not meet all of the formal requirements in the interest of justice when the parties intended to engage in the collaborative process.
Collaborative law, unlike arbitration under which a third party makes a binding decision, leaves the decision to the parties themselves. “Coaches” may facilitate direct communications. Unlike much alternative dispute resolution, collaborative law is pre-litigation. Hence, it may be less emotionally draining and more relationship preserving. The most serious criticisms of collaborative law center on attorney disqualification. Critics are concerned with potential attorney withdrawal at the very moment (litigation) when attorney services are most needed. An additional criticism is that collaborative law adds another layer of time and expense to disputes that end in litigation. However, attorney codes of ethics uphold the attorney withdrawal provisions and advocates of collaborative law assert that litigation rarely results at the end of a collaborative process. It is additionally asserted that privacy, control of the process by the parties themselves, and the individualized situational based aspects of the process are significant benefits.
Psychological and sociological knowledge underlies collaborative law. The following several paragraphs provide a few of many basic concepts. Fear of the collaborative process is perhaps best overcome by trust that is created by individual self-awareness and mutual self-disclosure. However, creating trust is hard work and the personal relationships may already be so damaged that trust, hence collaborative law, is impossible.
Additionally, the parties themselves may be at various points in the familiar progression consisting of denial, anger, bargaining, depression, and acceptance. There may be non-party individuals that have a high degree of unrecognized influence over the parties. Controlling parents, new boyfriends or girlfriends, and friend confidants are examples.
Furthermore, one must distinguish an individual’s interests, positions, and goals. Interests are concerns or matters of importance that drive persons and they may be unrecognized emotions such as sadness, anger, or shame. Skilled advocates help their clients develop self-knowledge and understanding that leads to attainable goals. Inquiring about “what you assume will happen,” “what is your expectation,” and “precisely what will that look like to you,” are recognized techniques to get beneath the surface.
Individuals may engage in irrational, self-sabotaging behaviors due to projecting their problems on others so that they avoid changing their behavior, defensive habits, creating excitement or chaos to override depression by stimulating the body’s physical chemical responses, and to acquire status or approval from others. Sometimes deeper psychopathology may be present that creates real risks of physical harm to themselves or others.
The parties must have common ground rules for negotiation and the attorneys themselves must be self-confident centered persons who are able to manage their own stress as well as the unique stressors of the particular situation. Professionals must be prepared to address such expected problem areas as an individual’s resistance to disclosing needed information or delaying the process either consciously or unconsciously.
Professionals must be able to recognize “transference” and “countertransference” when feelings are unconsciously redirected from one person to another. Self-knowledge, relying on facts not opinions, and discouraging posturing and positions are all helpful professional techniques. Initial meetings and the collaborative participation agreement set the stage for everything that follows. Common courtesy, mutual respect and constructive negotiations are vital to success. Certainly, however, collaborative law is not possible or even best under all circumstances.
Thankfully, an individual professional need not know and be everything as a collaborative team is likely. Particularly in family law and divorce situations, a variety of financial, wealth management and tax experts may be involved. Ideally the transparency of the collaborative process will allow efficient data collection and the development of and commitment to mutually beneficial financial goals and commitments. However, non-financial professional assistance in the form of child and adult therapists, addiction specialists, as well as family, friends, and clergy may be of equally important. The expectation is that professional individuals will bring their best neutral professional judgment to the process.
In broad conclusion, collaborative law is advocated as cost effective and relationship oriented and has spread globally. There are a number of professional organizations and training associations. These organizations may overlap and cooperate with family advocacy and mental health groups. Courts have been creating both local and state-wide rules to govern the collaborate process. Minimum professional training before one may practice collaborate law is frequently required. Consult an experienced attorney to determine the status of collaborative law in a particular state.
Collaborative law aligns with a recognizable movement to make legal services and dispute resolution more accessible and cost effective. Standards for attorney and non-attorney professional specialization, for example, licensed legal technicians, are developing. The “unbundling” of legal services so that attorneys are not required to personally engage in every client encounter, much like the current activities of a physician’s assistant or nurse practitioner, are the contemporary trend. Additionally, a host of specialized courts that have non-traditional powers and may grant unique remedies or divert parties to extra-judicial entities are increasing. Individual just-in-time services provided in a multidisciplinary package are coming to law. Increasingly, it appears that in the long-term the Anglo-American adversarial system of justice, while not totally replaced, will be reserved for certain unique problem areas. Even criminal law, uniquely adversarial, is not immune from these developments.
This comment provides a brief and incomplete educational overview of a complex topic and is not intended to provide legal advice. Always consult an experienced attorney and other professionals in specific situations.
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.
People often become paralyzed when it comes to dividing their personal property (household furniture, furnishings, sentimental items such as wedding gifts, photos, children's artwork, etc.). It is certainly one of the harder issues to contend with for families that are separating their homes because often there is much emotion attached to items accumulated during the course of a relationship.
While there are many ways to divide these items, if it is possible and manageable for them, it may be in their best interest both emotionally and financially to try to find a way to divide these items themselves rather than pay their professionals to become involved. I have seen many families navigate these issues constructively and thoughtfully when given a structure that works for them.
People often find the issue of how to value items challenging as well. It is often very difficult to put an economic value on emotional attachments. From a legal perspective, the value is generally thought to be what they could reasonably expect to get for an item at a garage sale or on Craig's List.
The first step for couples is often to create a comprehensive inventory of the items that need to be discussed and divided. Sometimes these lists can be created together. In the alternative, each person can create their own list. If one person has been out of the family residence for a period to time, they may need to go into the residence to refresh their memory in order to create their inventory. It is also helpful to identify items that either person may feel are their "separate property" (either owned prior to the relationship or gifted during the relationship). Also, if each person can identity the items they wish to retain and the items they do not wish to retain, often this can reduce the items that require discussion.
As to any items that require discussion, if after thoughtful discussion an agreement cannot be reached, when all else fails, a tried and true method that people can utilize is alternating selection until all items have been allocated. There are also creative ways to address some of the more emotional issues. For example, parents can create a sharing agreement that allows them to retain certain sentimental items related to their children with an agreement that the items "belong" to the children and will be returned to the children at some point. Photos, videos and artwork are also often a difficult issue. Today there are many ways to copy such items so that each person can retain copies of these items. At the end of the day your "stuff" is an important part of a separation or dissolution and should be treated thoughtfully.
Lissa Rapoport is a consensual dispute resolution attorney with offices in San Francisco and San Rafael.
Photo credit: Ann Buscho, PhD.
When couples begin a divorce process, they have many questions. During this time of transition everyone needs support to navigate the process as it unfolds. You need support while you are making temporary plans for your children and yourself.
If you have a relationship with your own therapist you may wonder how a separate Coach can be needed or helpful. After all, your therapist already knows you, and perhaps also your spouse. Why hire and pay for another mental health professional? Here are some reasons why it is not a good idea for your therapist to take on a dual role:
Elizabeth Salin, MFT, is a family therapist, Divorce Coach and Child Specialist in Marin County.
photo credit: Ann Buscho, Ph.D.
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
Photo credit: Ann Buscho, Ph.D.
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.
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:
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.
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.
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.
In the midst of parental separation feelings run high. If there are complicating factors such as violence, abuse and infidelity, those feelings typically run even higher. To add, if the decision to separate is more one-sided than mutual, the person being left can feel a sense of bewilderment if not abandonment. This too adds to the mix of bad feelings.
Parents in these circumstances are typically in a terrible place emotionally for determining the best parenting arrangement for their children. Knowingly or unknowingly, the children can become the battleground over which the parental score is settled.
As the parents unwittingly settle their score through the children, think one parent isn’t deserving of a relationship with the kids or think one cannot parent or will provide a negative influence and then seek to limit one’s relationship or time with them, the fight is on. The issues of the relationship which led to the separation worsen, further exposing the children to parental conflict. At the end of the day, parental conflict alone is the best predictor in terms of the outcome for children of separated parents. The greater the conflict the worse the outcome.
In a bid to win the day and determine an outcome, parents may turn to the court. In so doing each parent must convince the court that the other is the scoundrel. Each parent, reasonably defensive, must up their claim against the other to countermand the others claims. The court, thought of as an instrument for settling disputes and restoring peace becomes the very structure that creates further instability, chaos and hardening of bad feelings. Pity the children as the conflict inevitably intensifies.
Consider the following:
The single best predictor in terms of the long term outcome for children of separated parents is the duration and intensity of ongoing conflict to which the children are exposed or privy. Court is not aimed at reducing conflict what-so-ever. Court is only aimed at making decisions which at times makes relationships and conflict worse;
Children are typically better served by parents willing to participate in dispute resolution processes that do not involve court and are clinically focused as opposed to legally (rights) focused;
Parenting conflicts are not legal matters. Parenting conflicts are reflections of personal and interpersonal problems which require personal and interpersonal solutions. While judges and lawyers are experts at law, they are not typically experts at parenting conflicts, child development, mental health, drug and/or alcohol concerns or domestic violence. Seek the expert with the appropriate expertise;
Court may only be really necessary to keep people safe from harm in the event of truly dangerous or abusive behavior or in situations where a parent is truly undermining a child’s relationship with the other parent with no hope of change. Not liking the other parent, having different values or preferences and challenges in communication are not addressed in court processes;
Concern about mental health, behavior and even drug/alcohol problems can be addressed in settlement focused clinical services outside of court.
In view of the above and with a desire to act in the best interest of children, seek services that are provided with a view to facilitating settlement. Approaches to facilitating co-parenting should have a clinical focus, meaning they are directed to the well being of the children through helping parents address issues that can lead to settlement. Children’s needs remain paramount. After all, we all want our children to grow up well.
Gary Direnfeld, MSW, RSW is a Social Worker and Collaborative professional in Ontario, Canada
photo credit: Ann Buscho, Ph.D.
One of the tasks that must be solved by couples going through a divorce is how to divide their assets and debts. A marriage is viewed as a partnership where whatever either spouse earns or creates during the marriage belongs to both. Income, including bonuses, stock, and retirement contributions, and assets, real property, savings and investments, as well as financial obligations, that are acquired during the marriage as a result of either spouse’s labor, skill and efforts, ie employment or self-employment, are called community property, equally owned by both spouses. Assets or debts owned prior to marriage, or received during marriage as gifts or from an inheritance, are called separate property. If assets were purchased during marriage using community and separate funds, there would be a community and separate component interest in the asset. How title, if any, is held could affect the percentage. Should a spouse work during marriage to increase the value of separate property, a portion of the increased value might be viewed to be community property to compensate the marital partnership for that spouse’s time. After separation, income becomes separate property but is available for child and spousal support payments.
For couples who choose to use a litigation process to divide their assets and debts, their community property will be divided equally and separate property will be fully retained be the owning spouse. A court does not have the ability to take into consideration the interests and needs of the family or their specific financial circumstances which might warrant a different division. The advantages of using a consensual dispute resolution process, such as Collaborative Practice, is that a divorcing couple is not bound by this narrow formula. Instead, spouses work together to consider multiple possibilities for the division of their community and separate assets and debts. With the assistance of a neutral financial professional, the various options are tested for viability and determined if realistic. They then have the opportunity to select a settlement package that provides benefits for each spouse and their children. The goal would be to achieve a mutually acceptable durable solution.
Susan Stephens Coats is a collaborative family law attorney in Marin and San Francisco
photo credit: Ann Buscho, Ph.D.
When one is first contemplating leaving a marriage or when one is first told their marriage is ending, panic can set in. Oh my gosh, will I be able to stay in my home? Where will I go? What kind of place can I afford? Will I have to get a roommate? All of these thoughts can come flooding through our consciousness.
Don't panic. It really does not matter if you are the one who has handled the finances or the one who knows very little to nothing about your family's finances. Begin to gather invoices to help you understand how much you spend on a monthly basis. You will want to locate the invoices for expenses such as utilities, cell phone, mortgage or rent (which may be in a different home), groceries, gasoline, parking, day care, dues, clothes, pets, prescriptions, health insurance, credit card bills, auto and student loans, haircuts, and any other kind of expense that you pay each month. This would include contributions to a retirement account. You may not have all the invoices or receipts. In that case begin to keep track of all the expenses you incur on a daily basis for a couple of months to see what you are spending and in what category.
Then think about other bills that come in once, twice, or maybe three times per year such as property taxes, property insurance, umbrella insurance, auto insurance, vet bills, auto repairs, house maintenance, and tuition. Figure out what an average monthly amount would be and add this to your known monthly amounts for regular monthly bills. This should give you a reasonable idea of your total average monthly expenses before income taxes are considered. This exercise is very grounding.
Income taxes are likely be different in the year you are divorced. If you have questions about what taxes may be or if you want further guidance in this process, seek the advice of a divorce financial professional.
This exercise of gaining a complete understanding of your family's spending patterns will help you feel in control of your life and help you be confident about your decisions when it is time to make financial agreements with your spouse.
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.
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.
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:
Here some things you can do to help your kids stay out of the middle of the conflict:
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.
People often ask how the Collaborative team is able to support divorcing couples to work through their conflict. As a divorce coach, working with trained collaborative attorneys and other professionals, I believe that one of the keys is helping people understand the power of understanding (and often empathy), as an alternative to the power of coercion.
It’s hard to come to a divorce conversation, with attorneys at the table, and listen to your spouse with whom you disagree. How easy it is to become defensive, how tempting to criticize, or simply ignore what your spouse is saying. You may fear that if you understand your spouse, your own position will be weakened, or your own sense of the strength of your own view will be diminished.
So we work to help you make the distinction between understanding and agreeing. We often say you can understand someone fully without having to accept the validity of anything that they are saying. You don’t need to agree with the other, but you can understand what he or she is saying to you. This actually is a giant and liberating step forward to be able to move through a disagreement. It runs counter to the way in which we generally think about our conflicts. It can feel like a big shift to recognize that two views can simultaneously exist, and that they do not cancel each other out. Instead there is the possibility of an expansion of understanding, especially if both of you are willing to do this for each other. And that mutual understanding paves the way for a respectful dialog about the decisions that you will be making during your divorce.
This sounds simple, but it really isn’t. It takes a strong intention, and the commitment to the effort. When you really step into someone else’s shoes, you may feel quite vulnerable, especially if you are in conflict. When you are able to express and demonstrate to your spouse that you understand their view (even if you don’t agree with it), you may feel even more vulnerable. It can feel like the act of understanding and the demonstration of that understanding to your spouse is risking giving up your position or that it might result in your spouse believing that even though you haven’t said it, that you agree he or she is right.
Another problem is that we believe that our own view is so accurate that if your spouse were to actually understand it, that it would be inevitable that she or he will conclude that their own view is wrong. “If the other person just really heard and understood me, of course they would agree with me.” It is hard to accept that a different perspective doesn’t necessarily mean that you are wrong. This black and white thinking causes conversations to fall into a win-lose battle.
So let’s imagine that you and your spouse commit to listen for understanding, not necessarily agreement. It can be disappointing to feel that your spouse now has conveyed his understanding, but has not taken the obvious next step to surrender his or her view or agree that you are right. Right and wrong has a huge hold over all of us, especially when we are in a conflict. Holding two conflicting views simultaneously is not only intellectually challenging, but emotionally is even harder because we are so conditioned to believe that there is one right and one wrong in almost every conflict.
So how do we help? We know that it takes courage for you to authentically attempt to listen carefully in a new way, to step into your spouse’s shoes to understand, and to express your understanding without necessarily agreeing. We know it also takes strength to listen to your spouse’s understanding of what you may say, without assuming that he or she is now convinced that you are right, and he is wrong. We appreciate how hard it is to make this effort without knowing where it will lead. We may encourage you to push beyond your comfort zone, but we respect your ability to know what is possible for you. If you have been someone who always gives in, or accommodates, we will encourage you to strengthen your voice to speak your truth. At the same time, we will honor the realities of both you and your spouse to keep the lines of communication open. We may help you explore your version of “The Truth” as well as your spouse’s. Our goal is to keep the process moving forward in a balanced way, to reach your agreements with mutual understanding. Imagine, when your divorce is over, being able to understand your former spouse’s perspective, without feeling that you have to give up your own. This is one step toward a healing in your post-divorce relationship that will pay dividends for years to come.
Collaboratively written by Ann Buscho, Catherine Conner, and Gary Friedman
Grief and Sorrow
Being sad when a marriage ends is natural. Although it’s painful, grief is a healthy emotional response to loss of an important relationship. We are hard-wired to feel it and it wouldn’t be reasonable to expect otherwise. While sorrow and grief can be very hard to handle, most people do understand and accept the inevitability of these feelings.
Research, theoretical writings, and our professional experience with thousands of couples during divorces all confirm that though the emotional impact of a divorce is as severe as that of a death in the immediate family, the grief and recovery process does have a beginning, middle, and end. Though they may seem endless, the pain and confusion surrounding separation and divorce do gradually lighten, and finally go away—for most people over a period of eighteen months to three or four years following the marital separation, though recovery can be quicker or slower.
Elisabeth Kübler-Ross, pioneer in the hospice movement, first described the stages of grieving and recovering from a major trauma like death or divorce:
Understanding these stages can be very helpful when it comes to talking about divorce and decision making. It’s important to know that when you are in these early stages of this grief and recovery process, it can be challenging to think clearly or to make decisions at all, much less to make them well. Identifying your present stage of grief and being aware of it is an important step toward ensuring that you make the best choices you can.
Guilt and Shame
Experiencing guilt and shame is also a normal reaction to the end of a marriage. These feelings arise when we feel a sense of failure—of not having fulfilled our own or our community’s expectations. In the case of divorce, people often feel guilt and/or shame because they have failed to stay married for life. That’s partly a matter of personal expectations—not fulfilling the promises made to a spouse—and also partly a matter of not fulfilling what our culture seems to expect from us. If our culture’s expectations about marriage and divorce are reasonable—if they fit well with how people actually behave in that culture—and we don’t measure up, then the guilt and shame felt at the time of divorce may be appropriate. If the culture’s expectations don’t match well with the reality of marriage and divorce as people actually live it, then the guilt and shame can be much more problematic—difficult to see clearly, difficult to acknowledge, difficult to manage in a divorce. In addition, in some marriages one or both partners have engaged in extremes of betrayal, deceit, or even criminal behavior that almost always involve feelings of guilt and shame.
For many people guilt and shame can be so painful that they change very quickly into other more tolerable feelings such as anger or depression—often without the person even knowing that the guilt and shame are there. This is why it is so common in divorce for each partner to blame the other, and why it can be so difficult for divorcing partners to accept responsibility for their own part in a failed marriage.
Very few divorcing people find it easy to see or accept their own feelings of guilt and shame. These powerfully negative feelings often remain under the radar, hidden and invisible, where they can do the most harm. Strong feelings of guilt or shame can make it difficult or impossible to take in more balanced information, to maintain perspective, and to consider realistically your best alternatives for how to resolve problems.
Guilt can cause spouses to feel they have no right to ask for what they need in a divorce, causing them to negotiate unbalanced, unrealistic settlements they later regret. Family lawyers have a saying that “guilt has a short half-life,” and because guilt is such an uncomfortable feeling, it can easily transform into anger. People who have negotiated guilt-driven agreements often have second thoughts and go back to court to try to set aside imprudent settlements.
Similarly, shame often transforms into blame, anger or rage directed at the spouse. Bitter fights over children or property can be propelled by feelings like these, because modern divorces seldom brand either partner as Snow White or Hitler, Prince Charming or the Wicked Witch, and therefore the anger, which needs to go somewhere, goes toward fights over matters that courts are permitted to make orders about.
A full collaborative divorce team includes not just lawyers but also two licensed mental health professionals acting as coaches, whose job includes helping you and your spouse become more aware of how grief, shame, and other strong emotions may be playing an unwanted role in your divorce process. They can also help you address those feelings in constructive ways that leave you much more clear-thinking as you negotiate long-term divorce settlement terms.
Pauline H. Tesler, J.D., CFLS, is a collaborative divorce lawyer practicing in Marin and San Francisco.
[This post is excerpted and adapted from Chapter One of Collaborative Divorce: The Revolutionary New Way to Restructure Your Family, Resolve Legal Issues, and Move on with Your Life, by Pauline H. Tesler, J.D., and Peggy Thompson, Ph.D.]
photo credit: Ann Buscho, Ph.D.