Want to Be Happy After Your Divorce? Learn How to Communicate with Your Ex!

In my experience, probably the single most important predictor of how happy a client will be after divorce is how well they get along with their ex. If they can’t communicate well, then every conversation makes both of them miserable. If they communicate well, then these conversations are at worst neutral, and at best strengthen the co-parenting relationship. So, I advise clients to do whatever they can to communicate effectively after their divorce. Fortunately, there are many great professionals that can help after the divorce. Dr. Katrina Kuzyszyn-Jones is one of them, and she holds workshops throughout the year. You still have time to catch the November and December sessions! Find out more at http://kkjpsych.com/.

iPad and iPhone Dangers in Family Law

Technology is great.  Information sharing and syncing across your devices is great. But, more than one problem has arisen when kids, spouses or ex-spouses see texts, emails or photos that were not intended for them due to technology. Sometimes, this happens when kids have physical access to a parent’s device. That is easy enough to prevent.  What is trickier is when the kids have their own device (iPad, iPhone, iTouch) that is synced to the parents iCloud or Apple ID.  In that case, texts, messages, photos and other things that are intended for the parent can show up on the kid’s device. In order to avoid that problem in your life, here’s an article that helps explain how to avoid your private messages ending up in front of other people:  http://www.iphonejd.com/iphone_jd/2015/02/ipad-tip-turn-off-messages.html. When it comes to this problem, an ounce of prevention is worth a pound of cure.

Shared Parenting Bill in North Carolina Senate

Children quoteCustody disputes have been highly problematic for clients, attorneys and the courts for a long time.  They are emotionally charged trials with often little evidence that points clearly towards one parent or the other as being  a better option.  So, judges are left to decide a child’s fate based on a noble, but nebulous standard of “the best interests of the child”. And, due to the repetitive nature of these cases, a court frequently has to decide these cases multiple times for just one child. The most common issue in these trials is the schedule of overnights. That is, how many nights will a child spend with each parent, and how will those nights be structured?  While this answer has financial implications due to the child support guidelines, it is largely an emotional issue for clients.  Parents often see the distribution of overnight visits as a proxy for their relative parenting value, a symbolic judgment by the court that one of them is “better” for the kids than the other.  If there has been conflict over parenting during the relationship, then the court’s divvying up of overnights frequently takes on an emotional meaning for parents that goes far beyond the practical impacts. For these emotional reasons, parents litigate custody actions far more than the legal and practical realities would otherwise dictate.  The irony of course being that the court fight itself runs contrary to the best interest of the child. And these often needless lawsuits serve as a severe drain on the court system, preventing the courts from addressing cases where children are in actual need of court protection and intervention. To try to address this dynamic two North Carolina Senators have proposed Senate Bill 711.  This bill’s short title is the Presumption of Shared Parenting Act .  The bill would rewrite the primary child custody statute in North Carolina. The first section of the proposed law sets forth a statement of North Carolina’s public policy regarding parenting of children whose custody is in question.  The first listed policy is  to “Encourage child-centered joint parenting agreement [sic] to reduce litigation over child custody matters.” The remaining policy statements collectively state that North Carolina’s policy is to encourage maximum contact between a child and each parent, that the courts should PRESUME that both parents are fit parents and that the parents’ inability to get along with each other should not be used to overcome this presumption. The statute then creates a legal presumption that “each parent will share as close to an equal amount of time with the child, but not less than thirty-five percent (35%) of the amount of time with the child as research currently suggests.” First, it is important to note that this law would make official North Carolina’s policy of encouraging parents to agree to a co-parenting plan on their own and not bring these issues to the courts.  This is a policy that I would certainly encourage.  When the very government that will be making the decision about your kids is telling you that they don’t want to make decisions about your kids, then maybe we should listen…This policy really is an admonishment to parents to act like adults and handle their co-parenting issues in a reasonable way outside of court. Secondly, the law would create a new legal presumption in custody cases. In reality, this presumption probably just makes explicit the assumption that many judges make at the beginning of a case.  That assumption is that both parents in a case are valuable and capable of parenting their children in an acceptable manner, unless somebody proves otherwise.  But, those judges that do harbor conscious or subconscious biases towards one parent role or the other would have to start from a different starting point if this law is passed. This presumption would probably function much like the current legal presumptions of a 50/50 split of marital property in equitable distribution or the presumption that the child support guidelines will be used in a child support case.  That is, somebody will have to present a fairly compelling reason (some of which are mentioned in the bill) as to why a child would not benefit from roughly equal time with each parent before a judge could legally stray from the presumption. Further, the presumption is given some clear(ish) lines by creating a floor of 35% of the time with each parent.  The bill as currently written is not clear enough on this point, however.  It does not state what “time” means.  Does it mean 35% of the overnights?  Is that 35% of the overnights in a month, a year?  Or, is it 35% of the hours in a day, week, month or year? Regardless of the exact eventual meaning, the number gives a clear indication of what is considered roughly equal time with each parent under this bill.  Anything outside of that range and the court would have some explaining to do, literally.  The trial court would have to include sufficient findings in its custody order to justify altering the 35% floor. The practical effect would, most likely, be that attorneys would have a stronger basis upon which to predict the outcomes of potential custody suits for their clients.  Much like the 50/50 property distribution presumption and child support guidelines in place now, the 35% presumption would narrow the range of predicted outcomes such that the resolution of cases would be easier.   A narrow range of predicted outcomes facilitates settlement (as can a very wide range for risk reasons, but the current situation creates a range of outcomes that is neither predictable enough to force settlement nor risky enough to scare everybody into settlement). The bill is currently sitting on the desk of the rules committee, which, to my understanding, means that it is probably dead for now.  But, given the constant and unsustainable burden on the courts created by custody cases, and family law cases in general, this bill or a future iteration will probably make its way to a vote in the not too distant future.  It will be fascinating to see what policies are delineated in that version. (P.S. If the Legislature really wants to lower the number of cases in family court, an alimony formula or presumption would perhaps go even further than a child custody presumption.) photo credit: <a href=”http://www.flickr.com/photos/85608594@N00/15300693940″>Carl Jung Children are educated by what the grown-up is and not by his talk</a> via <a href=”http://photopin.com”>photopin</a> <a href=”https://creativecommons.org/licenses/by/2.0/”>(license)</a>

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.

Don’t Confuse Arguing for Negotiating

Arm WrestlingDoes your attorney argue or negotiate? Arguing is not the same as negotiating. Negotiation, at its root, is problem solving.  It is the act of solving joint problems. Arguing, by contrast, is at its best the act of trying to persuade someone to adopt your point of view. It is the act of trying to convince someone else that you are right, and they are wrong. At its worst it is trying to convince someone that that you are worthy and they are not; they are bad, and you are good. Negotiating involves a consideration of the other party’s perspective, and what they need from the negotiation.  It involves some degree of effort to meet the other party’s needs in a resolution, in recognition that resolution is a two way street. By contrast, argument ignores the other party’s part in a resolution.  It treats the other party as if their agreement is not required for resolution.  It says to the other person “You are an obstacle to me having what I want.”  That may be true, but

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.

In Divorce, Indecision is a Decision

Not making a decision is a decision.  In a divorce context, not making a decision about how you want to resolve alimony, child support, equitable distribution and custody issues is a decision to let your spouse decide how that will happen.  And, it is frequently a decision to go to court, whether you intended that or not.

Take this common scenario:  A Wife (or Husband) tells her Husband (or Wife) that she wants a divorce, and suggests that they use the collaborative process because it will protect the kids and their finances.

In some cases, the Husband’s reaction is to do nothing, and not make a decision on how to proceed.  Essentially, stonewalling. 

Sometimes this happens because people think that the divorce won’t happen if they don’t participate. They think, “If I don’t pick a process, then a divorce cannot or will not happen”.  The truth is that it will happen with or without them. But, it will happen in a public courtroom instead of a private conference room.   And, the parties will have lost most, if not all influence over the process and outcomes for their children and their financial lives. 

Other people in this situation think that agreeing to a process means that they are agreeing with the divorce.  That causes them to avoid choosing a process as a means of voicing their protest of their spouse’s decision to be divorced.  This is a self-defeating approach.  It is possible, and very common, to both disagree with the divorce and participate in the collaborative divorce process. 

Many people operate under the false belief that they have to agree to a divorce.  In North Carolina, a party can obtain a divorce without their spouse’s consent.    So, if your spouse tells you that they want a divorce, they can get one whether you agree or not.  You might be able to delay it, but you cannot prevent it. 

Further, failing to choose a divorce process forces the other spouse to go to court.  A courtroom divorce process is the only process that one party can force the other into.  So, if one spouse refuses to choose collaborative divorce, mediation or another process, then the other spouse has no choice but to seek the help of a court.  Therefore, refusing to make a decision is often a decision to go to court.  That option is typically the opposite of what both spouses wanted. 

So, if your spouse has told you that they want a divorce, then you need to investigate your process options.  And then you need to participate in choosing a process.  If you don’t, you will be making an unintentional decision, and that may well be choosing a battle in court.  

Collaborative Divorce: How Do You Define the Enemy?

Many divorce clients want their attorney to fight for them.  That can mean a lot of things.  In my experience what most people really want is an attorney that will help them obtain the best possible outcome.  “Fight” is just an easy one-word way of saying that.

But, if your attorney is fighting for you, they have to fight against something.  The question then becomes:  What are you fighting against?  How do you define your “enemy”?

In the traditional, adversarial, litigation based divorce process the enemy is typically defined as your spouse.  Therefore, you fight your spouse.  Your time, money, energy and emotion are spent fighting your spouse.  And, your spouse’s time, money, energy and emotion are spent fighting you. (And what happens to the kids in the midst of all that fighting?)

The adversarial way of handling a divorce assumes that dumping all of these resources into fighting each other will produce a “fair” result.  And, fair generally means equally bad for both of you. In fact, divorce attorneys love to say, “A good result is one that everybody is equally unhappy with.”

In contrast, the Collaborative Divorce Process does not make your spouse the enemy.  Instead, for each spouse, the enemy is the set of challenges and practical issues that can make divorce so difficult for you and your family. 

Instead of using your resources to fight against the mother or father of your children, collaborative divorces use the combined resources of both spouses to fight against the practical problems that frequently come with divorce.  These issues (and others) are most often the real enemies to a divorcing couple: 

  • Insufficient money to support two households
  • Emotions that derail effective decision making
  • Practical difficulties in co-parenting children from two households
  • Differing parenting styles in two households
  • Complicated valuation issues for assets or debts
  • Overwhelming debt that cripples each party financially
  • Blending new relationships into the family
  • Paying for college and meeting financial needs of family
  • Planning for retirement while meeting financial needs of family

The adversarial process most often produces a result that is equally bad for each party without solving any of these problems.  

The Collaborative Process most often produces a result that is beneficial for both parties (and their kids) and solves many, if not all, of the issues in that list. 

In divorce, the reality is that the enemy is not really your spouse; the enemy is the set of problems that come with divorcing your spouse.  So, it makes sense to choose a process that recognizes the real enemy and focuses your resources on defeating those issues, instead of trying to defeat each other.  Collaborative Divorce is that process.

(Special thanks to Michael Kothakota of Wolfbridge Financial, a combat veteran, for introducing the concept of “defining the enemy” to me.)

Toddlers & Tiaras: A Cautionary Tale of Child Custody and Privacy

Most lawyers will tell you that there are many hidden perils of taking your family law matters to court. 

One of those hidden perils is the loss of your privacy.

Privacy has many forms.  One form that people frequently don’t consider is the loss of privacy in child custody actions.

This loss of privacy takes the form of the government interfering in parenting decisions that it would have no right to inquire about if you were not in court.  In court, everything you do as a parent and every decision you make regarding your children becomes a matter for public scrutiny.

This recent story about Lindsay Jackson, a “Toddlers & Tiaras” mom, is a cautionary tale:  Jackson lost custody of her daughter, Maddy Verst, at least partially because of her decision to put her daughter in pageants. 

If the case were not in court, then it is hard to imagine that a governmental agency would have grounds to inquire into this kind of issue in a family.  No one has the power to tell a parent not to put their child in pageants; unless you are in court.

But, once the matter goes to court, parenting decisions and behaviors that have been sheltered by your privacy are open to judgment and review by a court, and the public.  And like Bill Verst, Maddy’s father, most parents in court are only too willing to bring up these kinds of issues in front of a judge.

Clearly, Lindsay Jackson believed her daughter’s participation in pageants was good for her daughter, a positive experience and an unquestionable parenting decision.  Turns out, the father, the court and the court’s psychologist did not agree. 

Before you run to court to open up your family’s life and your parenting decisions to judgment by a court and the public, you may want to ask whether you want to sit in the crucible of explaining your parenting decisions to a judge.  Your privacy may be more important than your need to fight.  And, while you may consider the decisions you’ve made for your kids to be above reproach, the people in power may not agree.

Fortunately, you can resolve your child custody issues without sacrificing your privacy and without opening your family and your decisions up to public scrutiny.

Collaborative law and mediation allow you to work out the issues while maintaining your privacy and your family’s privacy.