Collaborative Divorce: Getting Down to Business

The longer I practice collaborative divorce, the more benefits of the process I discover.

Case in point:  I recently helped a client who owned her own small business.  She had owned the business for a decade or more when the couple decided to divorce. 

The looming divorce forced her to analyze her cash flow needs for the future when she would be supporting herself.  The problem was that she had not kept a tight handle on the company’s finances in the past.  She didn’t know if the income from her business would support her in the future and help support the children.

Fortunately, she was in the multidisciplinary collaborative divorce process.  So, she and her husband hired a neutral financial specialist to help them with the financial planning of their divorce in the collaborative process. 

Thus, my client was able to spend time with the financial specialist getting a handle on her business’s finances.  And, she did not have to do it under the pressure and stress of subpoenas, discovery demands and other litigation tactics.

Once that was done, my client had good solid numbers to analyze for her business.  That enabled her to make financial decisions in the collaborative process that she did not feel comfortable making earlier. 

That ability to make decisions was of great benefit to her spouse, who had a need to make decisions and move forward. 

My client came out of the process with a separation agreement, co-parenting plan and financial plan that worked for her, her spouse and her business. 

And, as an added benefit, she came away with a much better understanding of the financial picture of her business.

This case is just one great example of the many “value-added” benefits of collaborative family law and highlights why small business owners benefit from the collaborative divorce process.

Randolph (Tré) Morgan III is an experienced family law attorney accepting cases in Raleigh, Cary, Apex, Garner, Fuquay-Varina, Clayton, Smithfield, Wake Forest, RTP, Durham, Chapel Hill, Holly Springs and surrounding areas.  He focuses his practice in divorce, child custody, alimony, child support, equitable distribution, property division, paternity, guardianship and other family related matters.  

 

$30 Million Alienation of Affection Judgment in Wake County

A Wake County judge recently handed down another huge judgment in an alienation of affection and criminal conversation case in Raleigh, North Carolina.

The award to the ex-wife against her Husband’s paramour totaled $30 million dollars.

$10 million of that amount was to compensate the ex-wife for actual losses suffered as a result of the paramour’s “stealing” her husband’s love and affection.  The other $20 million was awarded to punish the paramour for her acts.  That is some expensive lovin’.  

This story will surely draw headlines all over the country.  North Carolina has become famous (or infamous) for these kinds of cases.

However, it is important to note that the paramour apparently did not even appear to defend herself.  So, this case is not reflective of the true “value” of alienation of affection cases in North Carolina.  It appears that the judge awarded the ex-wife what she claimed she was entitled to receive, and since it was not contested, she essentially got to “pick her number.” 

I suspect that the paramour does not have $30 million sitting around.  In fact, she may have nothing (other than her apparent charms).  As is typical in these “super-verdict” cases, the ex-wife will likely not even collect one percent of that award (that would still be $300,000).  And, the husband doesn’t have to pay a penny of the judgment.  So, the amount of the award is largely irrelevant.

Nonetheless, there are two very important lessons to take away from this story:  First, don’t fool around with married people in North Carolina; second, be prepared to defend yourself if you do. 

 

Randolph (Tré) Morgan III is an experienced family law attorney accepting cases in Raleigh, Cary, Apex, Garner, Fuquay-Varina, Clayton, Smithfield, Wake Forest, RTP, Durham, Chapel Hill, Holly Springs and surrounding areas.  He focuses his practice in divorce, child custody, alimony, child support, equitable distribution, property division, paternity, guardianship and other family related matters.  

Spending Your Marriage Away

As a divorce attorney, I see a lot of marriages that suffer from financial stressors.  It has been a matter of simple observation that debt creates marital stress and sometimes lead to divorce.

In his short article “Bank on It: Thrifty Couples are the Happiest”  Professor Jeffrey Dew explores the impact that spending habits and financial issues have on marriage from a scientific perspective.  He points out that consumer debt has a negative impact on marital happiness.  According to Dew’s review, the “research indicates that consumer debt (e.g. credit card debt) plays a powerful role in eroding the quality of marital life.” In fact, he goes so far as to conclude that “…couples who are wise enough to steer clear of materialism and consumer debt are much more likely to enjoy connubial bliss.”  

While debt is may not be the main or only cause of any divorce, it is worth considering the impact of debt on your marriage.  It may be far wiser to pay off your credit cards and save your marriage than to pay a lawyer to handle your divorce.

 

Randolph (Tré) Morgan III is an experienced family law attorney accepting cases in Raleigh, Cary, Apex, Garner, Fuquay-Varina, Clayton, Smithfield, Wake Forest, RTP, Durham, Chapel Hill, Holly Springs and surrounding areas.  He focuses his practice in divorce, child custody, alimony, child support, equitable distribution, property division, paternity, guardianship and other family related matters.  

Divorce Negotiation: Maximize Your Influence

One thing that I try to convey to clients in family law or divorce matters is the difference between control and influence. 

Control is the ability to determine the outcome of a situation.  In contrast, influence is the ability to affect the outcome of a situation in some way. 

Understanding how these differ, and how they play into an issue are crucial to productively resolving family law legal matters. 

In short, there is no control over a family law matter.  So, clients need to maximize their influence.

Many clients want to control the outcome of their legal issue.  However, the reality is that no one party or attorney can control the outcome.  That is true in both negotiation and in the courtroom.  In negotiation, any resolution is by definition voluntary.  And, neither party can force the other to agree to anything.  Since neither party can control the other, neither can control the outcome of a negotiation. 

Many people and clients come to me with the belief that they can control the outcome of their case if they go to court.  This is, in fact, a myth.  In court, only the judge controls the outcome.  This is especially true in custody and spousal support cases.  In those cases, there are few established guidelines for a judge to follow.  Thus, a judge exercises wide discretion in making decisions.  (There are more structured guidelines for judges deciding property division and child support issues).

So, regardless of whether a client is negotiating or in litigation, no one party can control the outcome of their case.  Actually, many clients know this before they come to me.  And knowing that they cannot control the outcome naturally creates a lot of fear for them.  The typical response is to try to find a way to gain control.  I believe that many family related lawsuits are filed out of this desperate attempt to gain control over the outcome and reduce fear.

I have found (as have most of my clients) that the better approach is to make the most out of a client’s influence over the outcome of a dispute.  In reality, all a client (or an attorney, for that matter) can do is influence the outcome. 

Processes such as mediation and Collaborative Law maximize client influence over the outcome of a case.   Mediation and Collaborative Law give clients influence in determining what issues will be negotiated, how the issues will be negotiated, when the issues will be negotiated, whether the issues are resolved and the terms by which the issues are resolved. 

That is maximum influence. 

Allowing a court to tell you what you can talk about, when you can talk about it, how you can talk about it and ultimately what you are going to do with your life, children and worldly possessions is not maximizing your influence over your matter.  That is minimum influence.

My advice:  Before you make decisions in a family law matter, consider whether you are exercising maximum influence or operating under the myth of control.

Divorce Processes: Impact of Early Decisions

One dynamic that I see repeated in family law matters is that most families stay on the legal path that they chose at the beginning of the divorce.  For instance, most couples that pick-up the sledgehammer of litigation from the beginning stay on the litigation path for the remainder of their dispute.   Likewise, most couples that pick up the chisel of collaborative divorce or mediation resolve future issues through those same processes.

The reason for this, based on my observations, is that litigation creates, feeds and depends upon hard feelings.  Typically couples choose litigation because they are so angry or inflexible that they cannot productively negotiate with each other.  (There are exceptions to this; some couples have very complex or novel legal issues that are best handled in litigation).  The competitive win/lose nature of litigation encourages negative statements and testimony about the other party.  That creates hard feelings and anger, which in turn creates more negative statements.  This is, perhaps, the biggest reason couples are rarely able to avoid future litigation once they have chosen that path. (Some people begin litigation but end up resolving their disputes in court ordered mediation. However, even those people typically file a lawsuit again when the next issue flares up).

 On the other hand, couples that choose to avoid litigation in the beginning typically choose to avoid litigation in future disputes. In my experience, choosing non-litigation processes for conflict resolution avoids many of the hard feelings and competitive tactics of litigation.  Thus, the parties are able to maintain a problem solving focus instead of a competitive focus.  These couples often choose collaborative divorce or mediation from the outset.  They then return to these processes for future problems.

 Given this dynamic, it should be obvious that the first steps a couple takes in divorce will have a long lasting impact on their disputes and their families.  Therefore, it is imperative that couples learn about their options for resolving their disputes before picking a path.  


Randolph (Tré) Morgan III is an experienced family law attorney accepting cases in Raleigh, Cary, Apex, Garner, Fuquay-Varina, Clayton, Smithfield, Wake Forest, RTP, Durham, Chapel Hill, Holly Springs and surrounding areas.  He focuses his practice in divorce, child custody, alimony, child support, equitable distribution, property division, paternity, guardianship and other family related matters.  

Paying for College and Retirement in Divorce

Many parents make paying the expenses of their children’s college education a big priority in their divorce.  These expenses include college tuition, room and board, meal plans, books, etc…Frequently these parents have become emotionally invested in ensuring that their kids don’t have to pay for college.  Obviously, we’d all like to see our kids graduate from college without school loans.  

Unfortunately, especially in today’s economic climate, many people cannot afford to fund their retirement and pay for their kids’ college expenses (if they are fortunate enough to have the resources to do either).  That can be a very hard reality to accept. 

One fact that I (and many experienced financial professionals) constantly remind clients is this:  Kids can borrow money for college; parents cannot borrow money for retirement. 

This means that parents going through a divorce should take a very hard look at whether paying for college will allow for a proper retirement fund.   

After all, most kids would rather pay for their own education than their parents’ retirement.  

Is Marriage Outdated?

A new poll by Time Magazine and the Pew Center indicate that 40% of Americans believe that marriage is outdated.  According to the article, in 1978, when divorce rates were higher than they are today, only 25% of us believed that marriage was antiquated. 

 

We have likely all observed among our own friends and family the trend towards long term romantic partnerships, in lieu of marriage.

 

There are probably a number of reasons for this shift.  The high divorce rates of the past may make later generations tepid on the idea of marriage.   Those who have been divorced may opt out of marriage the second time around.

 

The questions from a family law perspective are these:  How does the law in North Carolina currently treat unmarried domestic partners? How are the laws going to adjust to meet the reality of long-term romantic relationships without marriage? 

 

Currently in North Carolina, there are not many protections provided to non-married domestic partners.   Issues from child custody to financial support to property rights offer little protection for long-term partners at the end of a relationship. 

 

At this time, the best way to protect unmarried domestic partners is the creation of a contract between the parties setting forth how things will be handled if and when the relationship ends.  Think of it as a pre-nup (pre-nuptial or ante-nuptial agreement in legalese) for people who do not want to get married. 

 

I will devote some future posts to explaining where the law currently stands in North Carolina and ways that unmarried couples can plan ahead to protect themselves in the event of a break-up. 

Announcing the Law Office of Randolph Morgan III, P.A.

I am happy to announce that as of Monday, November 15, 2010, I will be practicing as the Law Office of Randolph Morgan III, P.A.

 I am also excited to announce that I am now a participating member of the Separating Together collaborative practice group.

 My new office is located at 2300 Rexwood Drive, Suite 120, in Raleigh. 

 You can reach me by phone at (919) 573-4860, by fax at (919) 710-8210 or by email at tre@tremorganlaw.com.

 I will be focusing my practice on resolving family law and divorce matters, with an emphasis on negotiation, mediation, Collaborative Divorce, arbitration and other non-litigation processes. 

 I will also continue to represent clients in general civil litigation, business, guardianship and select personal injury matters.

I look forward to providing current and future clients the most modern, effective and efficient legal services possible.