Great Expectations

Clients frequently ask me in a first consult how long a collaborative divorce process takes. And I spend a lot of time thinking about what makes cases so different and why some move faster than others. One of the biggest variables I’ve found is the set of expectations that clients bring into a case. Some clients bring in very few expectations about the end result. Some bring in great expectations about the ultimate outcome. In my experience, clients have more efficient, faster, and less expensive processes when neither party brings unrealistic or rigid expectations to a divorce process. The reason is that an attorney has to spend a lot of time managing these expectations and working to create the flexibility and open-mindedness that produce the best and most efficient results.  I can’t tell you how many times I’ve heard the phrase “managing client expectations” in seminars for family law attorneys. The truth is that in all but the most extreme cases neither party can impose results or outcomes on the other, even (and maybe especially) in court. The vast majority of divorce and family law matters are resolved by mutual agreement. And mutual agreement obviously does not involve imposing outcomes on one another. To be clear, expectations are different than hopes, concerns, and goals. Hopes, concerns, and goals are helpful and necessary for identifying what is important to a client. Rigid expectations are counterproductive because they reduce the ability to think creatively, brainstorm possible solutions, and work collaboratively to find the best solutions. Expectations often cause people to “anchor” on a particular strategy or outcome and develop tunnel vision. That causes people to miss important, beneficial, and helpful alternatives. So, if you are seeking the most efficient, productive, and beneficial divorce negotiation process, then challenge yourself to avoid overly rigid or unrealistic expectations in the beginning. It will save you time, money, and stress in finding your family’s new path.

Divorcing Without Losing Your Communities

One of the saddest, but most common losses in divorce occurs when one or both spouses lose their communities as a result of the divorce (perhaps even sadder is when divorce causes children to lose their communities, but that is another story for another day).  

These communities are diverse and take many forms.  They are neighborhoods, social friendships, church families, extended families, work families, and in-laws among others.  These communities can even be clients, referral sources, and other networks that are foundational to your livelihood.

We are all familiar with this, having either been the divorcing spouse feeling shunned or anxious about how those communities will receive us. Or, as the community member unsure of what to say, whether to reach out or how to navigate the waters of someone else’s divorce. 

The question is how to prevent it.  The answer lies largely in how the spouses handle their divorce.

In general, the less conflict involved in a divorce, the fewer community relationships suffer. Just as children are highly sensitive to the conflict in their family, communities are highly sensitive to conflict among its members.

Every divorce has conflict.  For that matter, every happy marriage has conflict.  The difference is that in cases where communities are lost, the conflict has spilled over to community members. A spouse is sharing negative information about the other with the community.  Conflict erupts into arguments in front of friends or family.  In seeking support from their communities, spouses sometimes “poison the well” for the other spouse, intentionally or not.  

When conflict spills over to the community, the community rarely knows how to react appropriately.  Most communities are not trained to manage that conflict.  They don’t know how to support both spouses without shunning either of them. 

The best way that I know to get through a divorce without losing your communities is to adopt a divorce process that can contain the conflict so that it does not spill over into other areas of your life.  

While all divorce processes have pros and cons, some are designed to contain conflict, while others are designed (intentionally or not) to intensify conflict. For example, court processes are designed to contain conflict in the sense that it substitutes for vigilante justice. But an adversarial court process is not designed to avoid collateral damage to your communities.  In fact, your communities are often dragged into court as witnesses. Mediation is designed to contain conflict before it spills over to trial. But mediation is most often highly leveraged based on strong-arm tactics, increasing the odds that the conflict spills over into communities, even if it avoids more courtroom time. 

The best process for containing conflict, and preventing it from costing you your communities in divorce is the Collaborative Process.  There are many reasons, but they all come back to the fact that experienced collaborative attorneys are extensively trained and committed to handle conflict, even highly emotional conflict, productively, by de-escalating it and channeling that energy it into problem-solving without becoming adversarial with each other or the clients.

If you are facing a divorce, then give some thought to preserving your communities, and how to do that.  Give some thought to the collaborative process.

 

Ugly Divorces Affect Us All

Ugly divorces hurt us all.  Resolving divorce and family law matters in a non-adversarial process benefits us all.

The destructive effects of an ugly divorce almost always reverberate throughout a community.  They can destroy friendships, parent and child relationships, extended family relationships, and even church affiliations.  Ugly divorces can destroy families forever.  Teachers, therapists, clergy, co-workers, friends, and family can become involved whether they asked to or not.  They can be required to miss days of work and pay when they are hauled into court or a lawyer’s office to testify.  They can spend hours on the phone helping someone through the latest crisis or battle. None of these people want to be involved in someone else’s ugly divorce. 

The kids, the couples’ creditors, and family members who may be called on to foot the legal bills feel the financial devastation of expensive divorce.  Some couples never recover financially.  The costs of adversarial divorces consume retirement accounts, home equity, and college funds. Ugly divorces have pushed more than one couple into bankruptcy. 

Further, our courts are greatly overburdened by needless lawsuits.  The system simply cannot keep up.  The Wake County Family Court is drowning in cases filed by people who have already been to court multiple times.  These people are filing “show-cause” actions to continue their fight well after a judge has decided their legal issues.  It has become so bad that that Wake County Family Court has instituted a mandatory mediation program for show-cause actions in an effort to reduce the backlog.  Because the court system is financially stretched to the limit, these mediators work for free.  Cases that can be resolved in other avenues clog the system and consume the court’s resources.

If more of the resolvable cases were settled prior to a lawsuit, the court would require less personnel and fewer resources.  Given that our tax dollars largely pay for our courts, that would help us all.   If nothing else, the court would use the same personnel and resources to process cases faster and more effectively.

Further, we would all enjoy a better court system if we reserved the courts for the matters that truly needed the enormous resources that the court system burns.  If the resolvable cases were removed from the courts, then the truly unresolvable matters could be heard and decided much faster than they are today.  Due to the backlog of cases, it can take years for a case to be heard.  Court calendars on any given day are usually filled with two to ten times the number of cases that the court can hear in a day.  It is typical for a Wake County Family Court Calendar to have 50 hours of cases scheduled for 6.5 hours of actual “on the record” time per day.

Removing cases that do not actually need to be addressed by a judge allows a court to swiftly and efficiently decide the rare but important unresolvable cases for the rest of us. 

Plus, wouldn’t we all be happier if there was less jury duty to go around?

The bottom line is that it is up to us (the public and attorneys), not the government, to exercise better judgment about how we use our courts.  There are so many excellent processes for resolving disputes without the courts that only the rare dispute truly needs to be brought in court.  Whether through Collaborative Law, mediation, arbitration, neutral evaluation or some other dispute resolution process, we would all benefit from resolving our family law disputes, as well as other disputes, outside of the courtroom.

Real Life Recipe for Co-Parenting Success

Recipe BoxYears ago, we had a friend and neighbor that had the best co-parenting relationship with an ex-spouse that I’d ever seen.  Her husband frequently spent the night at her house to watch their daughter when she had to be out of town.  I never heard a cross word between them, and they had nothing but good things to say about each other in the presence of others.

After observing how well they co-parented for a year or so, I finally asked her how they did it.  How did they create such an incredible relationship to co-parent their daughter after a (not rainbows and unicorns) divorce?

Here is what she said:

There were actually a few rules we put into place early on that we both agreed to:

1) [Our daughter] comes first.  We came to realize eventually that it wasn’t about us anymore, it was about her.  Our feelings about each other were irrelevant; her feelings about us and herself were the most important thing.

2) Don’t talk about the other to [our daughter] and don’t allow family members to do so either.  We didn’t want her to have to figure out whether it was OK for her to love one of us if we hated each other.

3) We talked to each other almost every day after the separation and subsequent divorce because one of us would call [our daughter] to say goodnight.  I actually believe we worked through a great deal of the anger and the emotions by talking every day.  Even if it mainly consisted of conversations like ‘[our daughter] was sick today and stayed home from school.  When you pick her up later, she may need Motrin.’ We actually inadvertently worked through our own issues by focusing on [our daughter’s] well being.

I hated talking to him every day, oh by the way, that was one of the hardest things I did that first year, but [our daughter] was [young] and she needed us both, just like she does now.

I could talk about how impressive and healthy this is forever.  But, to me, the most important thing was that she hated talking to her ex, but did it every day for the benefit of her daughter.  She and her ex made it about their child, not because they didn’t have hard feelings, but despite those hard feelings.

Surely, their journey was more complex and more challenging that can be reflected in her few paragraphs of wisdom. But, hopefully, their blueprint helps you in your efforts to co-parent your children through a separation and divorce.

Why You Shouldn’t Let Your Attorney Take Over Your Divorce

“I hear and I forget.  I see and I remember.  I do and I understand.” – Confucius Divorce is often a confusing, anxious time.  People often report feeling as if they are the mercy of “the system”,  the law, their spouse, the attorneys, or the courts in their divorce.  This feeling of helplessness and loss of control only exacerbates the already difficult feelings of loss, grief, and worry that come with any divorce. Ironically, people frequently respond to these feelings by relinquishing more control and letting their attorneys and the courts take over their divorce process.  They are consulted periodically, but the attorneys handle the financial analysis, the negotiation, the strategic decision making and the other important parts of a divorce case.  The courts dictate the what, when and where. In my view, this is counterproductive because it only adds to the feelings of anxiety and loss of control.  It provides a short-term feeling of relief because it takes some things off of your plate in the short term. But, long-term, it leads to less satisfactory outcomes for clients.  First, when you are not involved in the details of your divorce process, then you are far less likely to like your outcome over time.  You will not remember the decision-making process that led you to your outcome.  That may cause you to look back on your process and your outcome with confusion and doubt.  Second, when you are intimately involved in your divorce process, you will have far more understanding of the financial, legal and personal dynamics at play in your divorce.  You will not have to take your attorney’s word for what is going on and the possible solutions.  Instead, you will be processing it as it happens and be involved in generating the solutions to the issues.  That typically means that you will have a fuller understanding of how and why you reached the solutions that will shape your post-divorce life.  In my experience that leads to clients feeling more in control, more satisfied, and less victimized after their divorce. Third, many clients grow frustrated because so much of the work an attorney does is outside of the presence of the client.  A client will get a bill, but not have actually seen the work performed because they are largely detached from the work itself. In a collaborative process, the client is sitting beside their attorney for much of the time and has immediate knowledge of what their attorney is doing and how they are doing it.  There is much less “mystery time” involved in your legal fees when you are an active participant in your case. Certainly, some cases require you to involve the courts and litigation attorneys.  And no one gets to dictate the terms of their divorce just as they would like. But, there are enormous benefits to being an active participant in, and having a thorough understanding of the decisions and the decision-making process of your divorce.  The only way that I know to do that is to participate in a divorce process that involves you not delegating the analysis, problem-solving and decision making, but rather taking an active role with your attorney in those facets.  You do, and you understand.  

Being Divorced, But Not Broken

I received a message from a former client recently that reinforced and clarified for me why I focus my practice on helping people handle their divorce outside of an adversarial model. She indicated that now a year after their divorce her ex-husband comes to her home and brings dinner and sits down with her and their son to have dinner on a weekly basis.  (For context, this was not a couple that was trying to destroy each other, but there was plenty of difficult issues, hard feelings, hurt, and disagreements to make this a difficult case.) Hearing that struck a very important chord for me. That got me to thinking about why that outcome meant so much to me.  I realized that what meant the most to me in these outcomes is that people are not broken as a result of their divorce.  It is hard to define what broken is, but we’ve all seen it.  Some people are never the same after a divorce, they never get past it, they never find peace or love or satisfaction in life again.  They cannot fully commit to their new life or next relationship because their thoughts are dominated by ruminations on their divorce.  They cannot relate to their children (including adult children and even grandchildren) without mentioning their divorce.  Their divorce becomes the central event in their life and they never get past it.  It is that brokenness that I and my brethren work so hard to avoid. This is not to blame these people.  No one can blame someone for being devastated by a difficult event in their life. But, a difficult life event does not have to be traumatic.  Divorce is without question one of life’s most difficult events.  But what I seek to do, and what others who are truly committed to collaborative divorce and non-adversarial divorce processes seek to do, is to prevent a difficult divorce from becoming a traumatic divorce. Anyone who has litigated divorces for any real period of time knows that even the “winners” in court are often traumatized and broken by the experience.  “Winning” takes its own toll.  So, winning a divorce war is no protection from the trauma of the war.  There are plenty of broken winners walking out of family courts. And, importantly, my client’s son was not broken by his parents’ divorce.  His life changed, but it was not broken. The point is that is that while divorce will always be difficult, the reason that I do what I do, and the reason that you should look into handling your divorce in a non-adversarial process, is that you can be divorced without being broken.      

Saving Your Communities in Divorce

In a previous post I discussed that while there is loss in a divorce, many of the best things in your life can be saved in divorce if it is handled well. One of the most common, but unnecessary, losses that I see resulting from divorce is the loss of community.  Communities can be many things, church communities, neighborhood communities, co-worker communities, extended family communities, social group communities, etc… These communities serve one of our most fundamental needs, the need to belong.  As a result, they are crucial to our well being. Therefore, the loss of these communities can sometimes be the hardest losses to endure in divorce.  The good news is that losing these communities is almost always unnecessary. Sometimes a community is highly judgmental of divorcing couples, or one of the spouses in particular, and the community chooses to end a relationship on its own.  There is very little that a person can do about that. After all, we can only control our own behavior, not others’ reactions to our behavior. But, frequently these communities are lost due to the perceived level of conflict between the spouses and the group member’s discomfort with that conflict.  People often feel like they have to “choose sides” because they don’t think that they can manage a relationship with both spouses due to the conflict.  The discomfort of being around seething or embittered former spouses who are insulting each other or making ugly comments cause people to just avoid one or both spouses. While we as people who make up these communities can stand to find ways to be more comfortable with conflict, the reality is that saving your communities in divorce is largely up to the spouses. The best way that I know to save these community ties is to reduce the animosity and emotional behaviors in divorce.  While no process can eliminate all of the difficult emotions and social awkwardness of divorce, some divorce processes are designed to manage and reduce these dynamics while others either intentionally or unintentionally increase the animosity. The less conflict and anger you and your spouse display the less discomfort your social communities will experience around you.  And the more comfortable these communities are around you and your spouse, the less likely you are to lose these communities and the relationships that mean so much in your life and even the lives of your children. While no divorce process is perfect, give some thought to how important your communities are to you and your family and how you can preserve them as you move through your divorce.

Getting Your Divorce Ship to Shore

I am sometimes asked by prospective clients “Why do we need lawyers when we basically agree on everything already?”  It is a fair, logical and reasonable question. One analogy that I use (with some poetic license) to explain this is that divorce is akin to a sea voyage.  You have to get from where you are, which is knowing that you are separating, to where you want to be (want is a relative term here), which is having the legal and other issues of your divorce resolved so everyone can begin healing and building new futures.  And you have to do that while protecting the precious cargo of your children, your life savings, and your mental health. Like a voyage, the divorce process often feels long, difficult, dangerous, and harrowing.  It frequently feels like you are subject to forces outside your control and you wonder how and whether the experience will ever end. You know your ship and cargo, but you don’t know the waters.  You know yourself, your spouse, your children, your finances, your goals, and your worries.  But, you don’t know divorce law, you’re not a trained expert at negotiation, and you’ve never sailed into this particular port. The real value of a divorce attorney is that they know what you don’t know.  They know the waters, currents, shoals, and the shifting sandbars of the law and tax code.  They are your harbor pilot.  They get you the last but hardest bit of the way to your resolution. If you are lucky, then you and your spouse can safely sail the ship a good bit of the way yourselves, agreeing to the basic terms of how you will co-parent your children, provide for their financial support, divide your property and debts, and meet the financial needs of two households. But even in that case, you will need good harbor pilots to get the ship safely to the dock and avoid the unknown, unforeseen, and hidden dangers that lurk beneath the surface of this unfamiliar harbor.  There are many hidden details to be sorted out in any divorce, traps that can wreck your agreements, and channels that you may not have seen that may better suit your case. In truth, in most cases, divorce attorneys are needed for the entire voyage.  But even in cases where you can handle most of the journey yourself, you will need a good harbor pilot to get you safely to the dock.  Most lawyers who have practiced long enough have seen a case break apart on a rock that the parties never saw coming.  A good lawyer can help you avoid that rock and safely reach the end of your divorce journey.  

The Losses Avoided

Divorce involves loss.  That is an inescapable reality of the changes that come with the end of a marriage. Human nature is to weigh losses heavier than gains.  We have a natural psychological tendency to focus on what we may lose, as opposed to what we stand to gain. But, when assessing your divorce options, it makes sense to not just think about losses that may be realized, but also think about losses that may be avoided. When weighing and considering the outcome of your divorce, in addition to whatever you feel you may have gained or lost, the losses avoided must be given significant weight as well.  The amount of loss in your divorce is largely up to you and your spouse.  Some loss is unavoidable:  the cost of two homes is higher than for one, future plans may change, a parent may have less overall time to spend with children when parents live in two homes.  But, there are many losses that can be avoided if a divorce is handled well.  Legal fees can be held in check, the familial relationships can be salvaged, disruptions to children’s lives can be minimized, time lost at work and the impact on careers can be minimized, church and community families can be maintained, homes can be saved, traditions maintained; the list goes on. Another way of saying this is that whatever may be lost in a divorce, things are also saved.  The question for anyone facing a divorce is what do you want to save and how can you save it?  How can you save as many of the good things as possible? If you find yourself facing the prospect of a separation and divorce, you will automatically think of the losses that you fear coming.  But it is also wise to think of the losses that can be avoided, and how you can best avoid them. In my experience, perhaps the biggest difference between a “good” divorce and a “bad” divorce is that the good divorces avoid far more losses, and save more of the good things than the bad ones. The best way that I know to avoid unnecessary losses in divorce is to manage conflict instead of fueling it, to refrain from emotional behaviors instead of giving in to the urge, to jointly problem solve instead of blaming, threatening and manipulating, to retain your decision making authority instead of handing it over to the government, and to jointly work to insulate and nurture your children instead of fighting over them like property. That is not easy, and it may not be for every client and family. But it is possible, and in my practice, it is the rule instead of the exception. All it takes are two clients who are committed to avoiding unnecessary losses,  attorneys who know how to help them, and a well-designed process.  

What You Need to Know About the Divorce Industry

If you are facing a separation and divorce, and looking for legal counsel, then you need to be an educated consumer of legal services.  That means doing your research, meeting someone before you hire them, and understanding what kind of lawyer you are hiring and the processes by which that attorney is going to help you. This helps protect you from a dynamic within the legal profession described by a colleague in a recent article as follows:
What does this mean? It means that more and more lawyers are competing for the same clients. This encourages lawyers in consults to bad mouth other lawyers and convince clients that they are superior and should be hired. It also encourages the starving lawyer to “churn” the case or to lead their clients down the more expensive and painful path of litigation rather than the often times superior (but less lucrative) choice to attempt to resolve a case. Finally, it encourages the lawyer to “show off” for their client in Court and in nasty emails and letters. (Whether it helps the case or not.)
Contrary to popular opinion, the majority of family law and divorce attorney are dignified, mature professionals who would not sacrifice their integrity to gain or keep a client, to make more money or to “win” a case.  But, all of those lawyers (and the judges) know colleagues that employ the tactics described above and ruin the reputation of the entire profession. The problem is that you can’t know whether any particular attorney is going to lead you down this path without doing your homework.  So, be mindful of the dynamic described above and hire an attorney that you are confident is not going to drag you into it with them. If you are considering an attorney and hear them badmouth other lawyers or your spouse, or they aren’t willing to truly help you avoid litigation when appropriate, then give some thought to whether that attorney is right for you. The reality is that many, if not most, expensive divorces feed off of anger and clients that cannot reign in their emotional behavior.  Certainly, complex legal questions and difficult situations play a part as well.  But, as a consumer of legal services, you need to be very intentional about whether you are hiring an attorney that will fan the flames of conflict and thereby increase the time and cost of your divorce or reduce the time and cost by dampening strong client emotions and focusing on problem-solving.