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.  

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.

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>

Autonomy Buckets

One frequent topic of co-parenting discussions is how much autonomy each parent will have when making decisions about the children.  How will decisions be made by the parents to benefit the children now that interaction and communication between parents is less frequent and maybe more difficult?

I like to talk to clients about “Autonomy Buckets”, a concept I learned from Cat Zavis, an attorney, mediator and expert communicator in Washington state.

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.

Authorization of Medical Care for Children

Parents, have you ever wondered how your child will get medical care when they are being watched by a babysitter, grandparents or other child care source?  Have you ever gone on a business trip or vacation (I know, dream on) without the kids and wanted to make sure that the person keeping your kids could get them medical care if something happened? 


 

Well, fortunately, if you live in North Carolina, then the following statute and form allow you to authorize someone else to consent to health care for your child in those situations.  It is important to note that your signature has to be notarized, so make sure you take care of that if you are going to rely on the form.  But, this form provides an easy and effective way to make sure your kids can get medical care when you are not around.  You’ll need to give a properly executed copy to the person caring for your child so that they can provide it to the doctor, hospital or other medical facility.

 

§ 32A‑34.  Statutory form authorization to consent to health care for minor.

The use of the following form in the creation of any authorization to consent to health care for minor is lawful and, when used, it shall meet the requirements and be construed in accordance with the provisions of this Article.

 

“Authorization to Consent

to Health Care for Minor.”

 

I, ____________, of ____________ County, ____________, am the custodial parent having legal custody of____________, a minor child, age______, born________, ____.  I authorize____________, an adult in whose care the minor child has been entrusted, and who resides at____________, to do any acts which may be necessary or proper to provide for the health care of the minor child, including, but not limited to, the power (i) to provide for such health care at any hospital or other institution, or the employing of any physician, dentist, nurse, or other person whose services may be needed for such health care, and (ii) to consent to and authorize any health care, including administration of anesthesia, X‑ray examination, performance of operations, and other procedures by physicians, dentists, and other medical personnel except the withholding or withdrawal of life sustaining procedures.

[Optional:  This consent shall be effective from the date of execution to and including____________,_____].

By signing here, I indicate that I have the understanding and capacity to communicate health care decisions and that I am fully informed as to the contents of this document and understand the full import of this grant of powers to the agent named herein.

 

            (SEAL)

Custodial Parent                                                                                           Date

 

STATE OF NORTH CAROLINA

 

COUNTY OF

 

On this ________ day of__________, ____,  personally appeared before me the named_________, to me known and known to me to be the person described in and who executed the foregoing instrument and he (or she) acknowledges that he (or she) executed the same and being duly sworn by me, made oath that the statements in the foregoing instrument are true.

 

 

 

Notary Public

 

My Commission Expires:

 

 

Kardashian Pregnancy Highlights Big Legal Issue

 

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As described in this article, Kardashian is pregnant with Kanye West’s baby (“I ain’t sayin’ she’s a gold digga”, right Kanye?). But the baby was conceived while she was still legally married to NBA semi-star Kris Humphries.  

In California, that means that the law will presume that Humphries is the biological father of the child, even though they all believe and/or know that West is the actual father. 

The law is the same in North Carolina.  In this state, the law presumes that any child born or conceived during the marriage is the biological father of the husband.  This is true regardless of whether the husband and wife are separated when the child is conceived. 

In fact, this is one of the strongest presumptions in North Carolina law and can be very difficult to overcome.  It takes both the cooperation and agreement of all parties and/or some legal wrangling to overcome this presumption.

In my experience, most people are stunned to find out that a child conceived after a separation by someone other than the mother’s husband is legally presumed to be the husband’s child.  Typically both the mother and the husband are shocked.  The biological father can be either upset or ecstatic, depending on his perspective. So, his cooperation may or may not be easy to obtain.

The reason for this law is that the public (often referred to as “the State” in legal writing) has an interest in making sure that there are as few illegitimate children as possible.  The public wants as many children as possible to be legally attached to two parents.  Historically, there was a social stigma to being an “illegitimate” child.  It seems that this stigma has greatly faded with changing social norms. 

However, there is also a strong financial purpose behind the law.  The public (i.e. taxpayers) does not want to financially support children if it can find a father to support the child.  Since every parent in this state has a legal obligation to financially support their children (unfortunately, the law does not and cannot require emotional or actual parenting support), the public tries very hard to find a father for children. 

While new laws enacted in 2012 make it a little bit easier for husbands to fight against this assumption, it remains a very powerful law. 

The bottom line is that married individuals need to be very careful about conceiving children between separation and the entry of a divorce.  Conceiving during this time period creates very serious consequences, usually of the unintended variety. 

 

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.)