Blame is a big dynamic in both marriage and divorce. And yet, it almost never moves clients towards their goals. Brené Brown (yes, I am a special fan of hers simply for the use of the accent in her name) does a great job of breaking blame down into what it is at it’s heart: an expression of pain or frustration:
Reading a recent blog post from the UNC School of Government reminded me that people frequently have misconceptions about what their day in family court will accomplish for them.
What does it mean to be tough? In divorce, most people (including many lawyers) believe that it means “sticking to your guns”, never compromising, issuing the bigger threats, puffing more, “big talk”, using intimidation. In the name of toughness, people are frequently encouraged to be uncaring, to deny any empathy for their spouse, and to turn off all humane or positive feelings about their marriage and their spouse.
That’s one way to do it.
At least in North Carolina, alimony (including post-separation support (PSS)) is one of the least predictable outcomes in family law. There are 15 factors listed in the alimony statute that must be considered, plus a catch all factor. Once those factors have been considered, a family court judge must make an award (or not) that she finds to be “equitable”. “Equitable” is legalese for “fair”.
In family law cases, money is an issue. Whether a couple is wealthy or struggling, very few divorcing couples feel that there is plenty to go around when negotiating their divorce solution. There is almost always a sense of scarcity. Sometimes that feeling of scarcity is supported by the numbers, but sometimes it is a reflexive fear reaction.
That sense of scarcity and anxiety leads people to try to get as much money as they can, and therefore, not share any more than necessary. That leads to zero sum thinking and shuts down thinking about solutions that lie outside of money, or have nothing to do with money.
In my experience, many people in divorce cases are looking to meet at least some needs that cannot be met by money.
One situation that comes up with some regularity for a divorce attorney is when a client puts an offer on a house before their divorce issues are resolved. These clients unwittingly place themselves in a very difficult position.
Custody 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>
One of the most value added benefits of collaborative divorce is the use of divorce coaches.
But, it is also the least understood of the professional roles in the Collaborative Divorce process. Clients typically see the value that the financial neutral and child specialist bring to their process. But, folks seem to have a harder time seeing the benefits of a divorce coach before we begin the process.
Divorce coaches are licensed therapists that work with each spouse in a collaborative divorce to help them move through the process as focused, and therefore efficiently, as possible.
There are many significant benefits of having divorce coaches in your case:
1. They save you money. This part is not intuitive. Many clients initially react to the idea of a divorce coach by seeing only an additional expense; one more person they have to pay to be divorced. But, the reality is that divorce coaches save clients money. How? First, many of the hours that clients pay me for are spent discussing non-legal issues that would be more effectively addressed by a divorce coach. And, a divorce coach charges about half of the hourly rate of an experienced collaborative divorce attorney. So, by using the divorce coach as the right tool for the right issues, clients can save hundreds, if not thousands of dollars during their process. And, while spending less money, they also get help from human emotion and behavior experts (instead of lawyers) for the non-legal aspects of their divorce.
2. They are the right tool for non-legal and non-financial issues. Every divorce has three components: Legal, financial and emotional. Lawyers are best at handling the legal issues. Financial neutrals are best at handling the financial issues. Divorce coaches are best at helping people shape their emotions, communication and interactions with their spouses and children through the divorce process. You wouldn’t ask a therapist for legal advice; why ask a lawyer for coaching?
3. They know the Collaborative Process. Unlike your therapist, your friends or your family, a collaborative divorce coach is highly trained in the Collaborative Process. They know how it works, what you will experience, and where the tough spots will be. They understand how and why collaborative divorce is different than an adversarial process, and how those differences work for you. Unlike your therapist, they will be privy to information from the other professionals in the process, including your spouse’s coach and your child specialist. Unlike your therapist, they can assimilate information from you, lawyers, financial neutrals, and child specialists to help you through your specific collaborative divorce. Unlike your therapist, they are not there to do therapy! They are there to help you recognize and address roadblocks to expressing yourself effectively and reaching a resolution.
4. They speed things up. In a divorce negotiation, an indelicate word or tense conversation can create emotional distractions that take days or weeks to dissolve. A coach helps you process that anger, frustration, or hurt so you can re-focus and move on with the resolution process. A conversation with a skilled collaborative divorce coach can be worth weeks or months of time; time you could be devoting to building the next stage of your life, attending to your kids’ adjustment or fostering your new relationship.
There are many more benefits to having someone in your corner that is trained to understand the emotional ride of divorce and apply that knowledge to help you through the Collaborative Process.
It is impossible to know exactly how you will benefit from a divorce coach in your specific divorce ahead of time. But, its is a rare case that is not more efficient, effective and focused with divorce coaches.
I’m now in my 14th year of practicing law. While I’m not yet a planning any retirement parties, I’ve got a fair bit of my life invested in this profession. Over that time, I have noticed an evolution in the way I think about the law and my role in it.
Fresh out of law school, I, like most new lawyers, saw getting the “right” legal answer as the goal of practicing law. Each client and case was an exam question that I wanted to get right.
Then, it evolved into a need to “win.” You realize that the “right” answer doesn’t always win the day (and may not even exist); you want to win. Even if the legal basis is dubious or makes poor policy, you want to win for your client, and yourself.
Analytics has confirmed what family law attorneys have known anecdotally for a long time: There are not many clear cut winners in divorce cases in court.
Analytics has taken root in almost every industry in the world. Now it’s even made it’s way to the notoriously mushy world of family law.
As described in this article in the Miami Herald, an analytics firm recently dug into data from litigated (i.e. outcome decided by a judge) family law cases in Miami. The results paint a pretty ugly picture for anyone considering asking a court to determine their divorce and related legal outcomes.
According to the researchers, the results of the analysis revealed three important dynamics:
1. Favoritism exists: Judges appear to have favorite lawyers and those favorites fare better with those judges.
2. Big firms offer a 7% outcome benefit, but for a significantly higher cost.
3. More expensive attorneys do not win more than less expensive attorneys.
There are some caveats to be mentioned here in my mind: First, it could be that good lawyers choose their battles more effectively, settle their weaker cases or prepare more effectively; and that could be why they have higher win rates with particular judges. Favoritism is one possible explanation, but it may not be the correct one. The numbers are curious nonetheless.
Another caveat is given by the authors, but it is even more alarming than the results! The researchers admit that “determining win rates is highly problematic.” Why? Because, “there really aren’t many clear ‘winners’ in domestic proceedings.”
The researchers go so far as to claim that “Family law is the Wild West of the Legal profession.” (Que the Gunsmoke theme music)
Given all of this, it seems that a savvy consumer would steer clear of court when getting divorced. Choosing a process that allows them to determine their own outcome and allows both parties to define their own “win” seems to me to be a far better choice than “the Wild West.”
The good news is that in North Carolina, there are great alternatives to the Wild West. Collaborative Law allows a divorcing couple to keep their divorce out of high noon duels in the courtroom. It allows a couple to sit down and negotiate a resolution face to face with the help of their attorneys, and other professionals. There are no bullets to dodge, no posses to round up (and pay), and no hired guns to fear.
The objective evidence against getting a positive divorce outcome in court continues to mount. It’s a good thing alternatives exist.