How I Care for Divorcing Clients

   
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    On Caring by Milton Mayerhoff is one of the most personally important and impactful books that I have ever read, and probably will ever read. It is a summary and explanation of what it means to care for oneself and others, both philosophically and practically. I had been practicing law for over a decade before I found the book.  But, one particular passage succinctly described the guiding principle that I had developed for my representation of, and caring for, clients:

When I care for an adult…I try to avoid making decisions for him.  I help him make his own decisions by providing information, suggesting alternatives, and pointing out possible consequences, but all along I realize that they are his decisions to make and not my own.

To my mind, this passage is the foundation for effectively helping clients through a divorce. Some attorneys have trouble allowing clients to make their own decisions, and feel compelled to “guide” clients to making whatever decision the attorney himself would make in that situation. And, while it is not always easy, remembering that a client’s decisions are hers to make and not my own, is the key to effectively helping her make those decisions.  And, that, so far as I have come to understand it, is the key to truly caring for clients.

Why Smart People Can Have Dumb Divorces

Left brain = logical thinking Right brain = emotional thinking

Left brain = logical thinking
Right brain = emotional thinking

Working in Research Triangle Park (Raleigh, Durham, Chapel Hill) a region renowned for its education level, I have the privilege of working with a lot of very smart people.  Doctors, professors, business executives, entrepreneurs, nurses, techies, and domestic geniuses all bring healthy IQ’s to the collaborative divorce conference, mediation or negotiating table. Certainly raw intelligence helps in a divorce.  The ability to learn, process and analyze complex legal issues and numbers is immensely helpful to efficiently resolving a divorce. But, in my experience, it pales in comparison to the ability to recognize, understand, process and deftly handle the emotional component of divorce, both in yourself and in your spouse.

Why Arguing is So Expensive in Divorce

In divorce, time is money.  Most divorce attorneys charge by 6 minute increments.  That means that you are going to pay anywhere from $2.50 to $7.50 or more per minute for your divorce attorney’s work. Legal BillI would be greatly concerned about using my attorney efficiently.  I would want more money going into my pocket, my kids’ college, or my retirement than to attorneys. To be sure, skimping on an attorney for a divorce is not a good idea.  That can lead to very expensive mistakes. But, paying more than necessary for your attorney can be avoided. In my experience, the number one factor in the legal fees in a divorce is not the hourly rate of an attorney.  Rather, it is the amount of time that a client pays an attorney to do things other than help resolve their case.

What Hostage Negotiations Teach Us About Divorce Negotiations

As it turns out, a divorce negotiation is a lot like a hostage negotiation.   Just not in the way you probably think.    I never would have thought about that.  But, a recent interview with a former FBI hostage negotiator in Men’s Journal made it apparent.  Gary Noesner’s interview in the April issue of the magazine gave six keys to effective negotiation under high stress situations.  Not coincidentally, these are the same rules that good collaborative attorneys and mediators follow when negotiating a divorce settlement.  Anybody going through a divorce would do well to keep these in mind, and to find an attorney who understands these techniques:

Is Your Divorce Attorney Wearing Two Hats?

Some clients wonder why their collaborative divorce attorney cannot represent them in court if collaborative does not resolve their case.  Some clients find it difficult to find the nerve to talk to one divorce attorney; the thought of having to meet two of them is daunting.   One reason is that North Carolina law requires a collaborative divorce attorney to withdraw if and when a lawsuit is filed.

Knowing Your Divorce Attorney’s Bias

Everybody has a bias. 

 

 

 

That’s not bad or wrong.  It just is.  No one can be completely objective. (Don’t believe me? Read “Thinking, Fast and Slow”!)

 

 

 

The challenge, then, is to understand the bias so that you know how to more accurately interpret information from that person.

 

 

 

Nowhere is this more important than in choosing and communicating with your divorce attorney.   Contrary to popular belief, divorce attorneys are people (at least that’s my working hypothesis).  And, as such, they have biases.  One of your jobs as a discriminating client is to figure out what that bias is, and then interpret the advice, information and counsel you get from your attorney accordingly. 

Top 10 Traps of Handling Your Own Divorce Settlement

Many people want to negotiate their separation and divorce without using an attorney.  The reasons typically revolve around saving money and/or the fear of evil attorneys creating an unnecessary fight.

I am all for people resolving their own disputes whenever possible.  But, in divorce, there are traps waiting for people who want to do it themselves.  Here is a list of 10 the most common traps:

1. Failing to account for capital gains taxes

A lot of people just divide up assets or debts without regard to this issue.  This can provide a nasty surprise if capital gains taxes reduce the value of the assets that seemed “equal” when you agreed on them.

2. Failing to structure financial terms to avoid taxes

Giving money or assets to your ex-spouse can bring on tax liability.  Withdrawing retirement funds can trigger tax liability.  Divorce situations can be excluded from some kinds of taxes, but only if handled correctly.

3. Retirement account division

Dividing these accounts is complicated.  There are federal, state and/or tax laws that must be satisfied to avoid bad surprises down the road.  Special orders from a court may be required to divide up a retirement account.  Also, planning for what happens if the owner of the retirement account dies after separation, but before the account is divided is complex, but crucial.

 4.    Small business and family business ownership

Small business and family owned businesses present special considerations for a divorcing family.  Failing to properly address these issues can lead to future problems with ownership, liability on business debts and other issues impacting the business.

 5. Planning for income changes in support obligations

I have talked to many people who tell me that they handled their own separation agreement and agreed to pay “x” dollars a month but now cannot pay it because they lost a job or took a pay cut.  This is a great way to end up in court and financial trouble.

6.      Agreeing to obligations that are not legally required

You may inadvertently agree to do things that no court could require.

 7.     Agreeing to things that are not enforceable

You may depend on your spouse’s agreement to do something only to later discover that you cannot actually require them to do it under the law of your state.

 8.     Failing to formalize your agreements properly

Creating a legally enforceable divorce settlement agreement in North Carolina is not as simple as a handshake or even a just a written signed agreement.  If it is not done correctly, your agreements may fail.

 9.      Agreeing to numbers without budgeting or planning

Too many people agree to financial arrangements without having the slightest idea of how those arrangements play out long term, or sometimes even short term.

 10.     Failing to structure spousal support for tax purposes

There are very specific tax laws and state laws that apply to spousal support payments.  Failing to structure spousal support payments appropriately can lead to surprising tax and legal ramifications years after you thought your divorce was put to bed.

 If you are facing separation or divorce, then consider consulting a qualified family law attorney before you finalize an agreement.  An ounce of prevention is often worth a pound of cure.

Bright Spots Are Key to Divorcing Well

Did you know that humans are psychologically predisposed to notice and dwell on problems instead of solutions? 


How does that play into divorce?

 

This phenomenon is explored in Switch:  How to Change Things When Change is Hard.    The Heath brothers wrote this book to give people a user-friendly paradigm for changing habits and dynamics between people and within organizations.

 

The book discusses research indicating that humans are more attuned to negative than positive experiences in almost every area that has been studied.  

 

They suggest that the best way to overcome this challenge is to look for the “bright spots”.  Bright spots are places or times when things went well.  The skill is to not focus on the times that things went poorly, but to focus on the times when things went well

 

It is, in essence, the difference between learning what to do, instead of what not to do.

 

Why would a divorce attorney care and what good would it do for you?

 

I spend a lot of time helping clients learn to change unhealthy dynamics with their spouse and sometimes even their kids.  We have to help them resolve issues that have likely been causing argument for years, and may have even led to the divorce itself:  Parenting differences, money differences, communication problems, etc…

 

But, even in really difficult cases, the spouses are able to have calm, respectful, productive conversations about something.  Those conversations are the bright spots for families in a divorce.

 

So, the key is to look at those good conversations and figure out what goes right in them.   Then, we can try to duplicate the things that make those conversations go well. 

 

All too often, attorneys and clients focus on the problems.  In my experience, that doesn’t get you very far.

 

It’s the focus on what’s working (no matter how small or how hard you have to look) that really helps. 

 

If you are facing a divorce, and conflict between you and your spouse is a problem, then try to find a bright spot.  Find a conversation or topic that you don’t fight about. Figure out why that conversation went well.  Then try to duplicate that in your next difficult conversation. 

 

In divorce, finding the bright spots will help pull you toward the positive changes that you both want to see in your lives.  

The Truth About Pre-Nups

The recent New York case striking down a pre-nuptial (aka “pre-marital” or “pre-nup”) agreement may scare some people who have signed or are thinking of creating pre-nups in North Carolina.

 

So, let’s get the facts out there before this story causes pandelerium (I know that is not really a word, but Jeff Foxworthy made it up and I like it):

 

North Carolina allows pre-nups and has adopted laws to specifically deal with pre-nups (NCGS 52B for the curious and/or nerdy).  In this state, a pre-nup must be written and signed by both parties. 

 

A pre-nup can deal with a wide range of legal issues in the event of divorce.  However, there are some important limits to what it can control.  A pre-nup cannot control child support in a divorce, cannot control property held as Tenants by the Entirety and cannot control a spouse’s rights in certain kinds of retirement plans. 

 

A pre-nup cannot contain provisions that are contrary to the public policy of this state.  For instance, a pre-nup probably cannot contain terms by which a couple agrees to get divorced at a date or event in the future because North Carolina’s public policy is to support marriage, and discourage divorce.

 

Pre-nups are enforceable in North Carolina.  So, it is generally difficult to get out from under a pre-nup’s terms when you get divorced.  To get out of a pre-nup, a spouse has to show that either they did not execute the agreement voluntarily (more than “I had my reservations…”), or a that the agreement is extremely unfair (not just a little) and that the other spouse failed to disclose something important in negotiating the pre-nup.  It is important to note that if everything was disclosed prior to signing the pre-nup, then it likely does not matter how unfair the pre-nup may be.  It will still be enforced. 

 

It is important for both parties to understand the uses and limitations of a pre-nup prior to signing the agreement.  If spouses understand them well going in, then they are much less likely to experience surprises like the one chronicled in the Today Show story. 

 

If you are interested in pre-nups or post-martial agreements (for people who are married and want to stay married but want to make decisions in advance about what would happen if they divorce), then Collaborative Divorce is an ideally suited process for arriving at your agreement without damaging the relationship.  

What North Korea Can Teach You About Divorce

In 1950, North Korea and South Korea got into a fight about their divorce.  North Korea’s divorce attorneys’ (their political leaders, generals and the Soviet Union) strategy for the divorce was to send 75,000 armed troops over the border to work out the divorce.

 

Feeling threatened, South Korea’s divorce attorneys (their own political leaders, generals and the United States) responded in kind.

 

After three years of fighting (and tens of thousands of deaths) that did not resolve the divorce, North Korea and South Korea figured out that their fighting had not gotten them anywhere and reached a settlement called an “armistice”.

 

Flash forward to now.  For 60 years, the divorced countries have been fighting a cold war.  There is a demilitarized zone (“DMZ”) lying between their borders that neither country occupies.  But, each country has built up a large force on their side of this zone and maintained it for 60 years. 

 

During those 60 years there have been countless insults, threats, missile tests, shots fired across the DMZ and crises in which all out war was contemplated.  It has been an uneasy peace.

 

So, you ask, what does this have to do with you? 

 

If you are looking at a divorce, one tactic available to you is the North Korea option:  Garner a massive force and launch an all out war on your spouse to try to resolve the disputes.  Like North Korea, you may find that after years of combat, you are no better off, but tired of fighting.  You may both win some battles, but nobody is winning the war. And, you may find that the best you can do after all of that fighting is to create a DMZ of your own; an area where you don’t actively fight, but you aren’t actively seeking peace.  Typically, your kids, friends and other important people live in this area. 

 

Further, it is fairly common for the North Korean option to lead to events like those of today, when one of you finally forgets what the war cost you, rejects your tenuous peace and picks another legal fight. 

 

After 60 years, North Korea is in the same position it was when it all started, and nothing has improved.  Their ex-spouse, South Korea, still occupies the vast majority of their energy, money and efforts.  They are still embroiled in the same arguments they had 60 years ago.  They have not actually resolved anything; they have just taken a break from the active fighting, while continuing to devote their time, energy and money to arguing with their ex-spouse. 

 

And, now, today, 60 years later, they are reinvigorating the fight that they got themselves into so long ago.

 

If you are considering a separation and divorce, give some long hard thought to whether you want to employ the North Korea option.  If you think that situation has worked out well for them, then by all means move forward.  But, if you see the futility in that strategy, and the destruction that got them nowhere, then give some thought to diplomacy in your divorce.  Look into Collaborative Divorce and mediation.