My last post talked about one of the highly valuable services that I, or any skilled and experienced collaborative attorney, provide to a client; namely, helping them understand the conceptual agreements they reach at the kitchen table.
I want to cover another of the highest value services that I provide to clients in a collaborative process: Preventing old relational dynamics from undermining a settlement.
It has been said that the definition of insanity is doing the same thing over and over while expecting a different result. While it is a bit simplistic, it highlights the idea that if a dynamic has not worked in the past, then it is unlikely to work in the present or future.
Every couple has established relational dynamics. This includes the way they speak to each other, interpret each other’s statements, assumptions they make about each other, and expectations they have for each other’s behavior, among others. However, from my perspective, the most important relational dynamic in divorce is the way a couple handles conflict with each other.
Some couples simply don’t talk about conflicts. Some confront it immediately, head-on, with volume. Sometimes one person wants to confront it head-on and the other wants to avoid it and hope it goes away. There are almost as many dynamics for handling conflict as there are couples. Some are quite helpful and productive, but many are counterproductive.
It is often true that the way a couple handled conflict during the marriage played a significant role in the breakdown of the marriage. And yet, couples frequently want to conduct their divorce negotiation using the same dynamics that got them to the divorce.
It makes sense; these dynamics are deeply rooted and highly ingrained. They are very difficult to escape because they feel “natural” and even, ironically, comfortable in some ways.
And yet these dynamics can and do torpedo rational settlement conversations before they have a chance to gain traction. Even if they don’t prevent a settlement they unnecessarily prolong the negotiations and multiply the costs of the divorce if not managed effectively.
Fortunately, there are attorneys specifically trained to help clients manage these dynamics. Collaborative attorneys have unique skills to identify counterproductive dynamics and then mitigate them so clients don’t spend unnecessary time and expense getting hung up in old patterns.
These techniques start with training in how to listen to clients and their spouses. Once a pattern presents itself collaborative attorneys can help short circuit the pattern and adopt a new dynamic before frustration, deadlock, and the dreaded “Battle of Wills” set in.
This ability to identify and mitigate counterproductive dynamics between divorcing spouses is perhaps the key to the effectiveness of the Collaborative Divorce process. Having skilled attorneys who can see the dynamic objectively and short circuit it saves precious time and money for clients.
Without attorneys that can do this, the old dynamics lead to increased anger, frustration, suspicion, and mushroom-cloud conflict. That, in turn, leads to skyrocketing legal fees, animosity, and delays.
While it may be hard to see from the inside, the conflict dynamics that you and your spouse have used in the past may not serve you well in your divorce. Understanding that and hiring an attorney that is trained to identify and handle those dynamics will save you untold time and money.
My last post talked about one of the highly valuable services that I, or any skilled and experienced collaborative attorney, provide to a client; namely, helping them understand the conceptual agreements they reach at the kitchen table.
Some couples can have productive conversations at the kitchen table and agree on how they want to handle the financial and co-parenting issues of their separation and divorce. And I am all for couples having these conversations as long as they are productive. I believe that the more couples are able to sort out on their own, the better for them, their families, our court system, and society in general.
These couples understandably wonder why they need an attorney if they can figure things out on their own. It is a reasonable question.
There are many reasons, but I want to focus on one in this post: the difference between what you think you have agreed to, and what you have actually agreed to.
This came to mind while reading a blog post from a financial planner about pension divisions (I know, this sounds insanely boring).
This blog points out that “Even in amicable separations, and situations in which spouses largely agree conceptually on how assets should be divided, it’s not uncommon for there to be an innocent misunderstanding at the time that, once more thoroughly understood in the future, creates animosity or financial hardship. And, in some cases, both.”
The author frames this situation as the “We agree, but don’t really understand what we’ve just agreed upon” scenario.
This is a very real risk. Clients (both collaborative divorce clients and non-collaborative divorce clients) frequently come to me with at least a partial outline of some agreed big-picture terms. However, part of my job is to dig into the details of those agreements because I am responsible for taking these conceptual agreements and turning them into fleshed-out enforceable legal agreements. And once I start asking about details, and explaining the consequences of the conceptual agreements, clients frequently realize that they did not actually understand what they were agreeing to do.
In my mind, one of the most valuable services I provide to clients is helping them to truly understand their conceptual agreements, and to help them tweak them where necessary to reach a full and detailed agreement that is legally enforceable.
Some clients are frustrated to learn that there is more work to be done and that their conceptual agreements are not the end of the journey. I certainly understand that. After all, even the conceptual agreements take energy and those conversations can be emotionally draining. It is just one of the frustrating parts of separation and divorce.
But, without that work, the innocent misunderstandings that come with conceptual agreements become the seeds of the animosity and financial hardship that everyone is trying to avoid.
So, to answer the question “We know what we want to do. Why do we need lawyers?”: The answer is that a good lawyer is there to help you truly understand what you have agreed to conceptually and find and address the innocent misunderstandings before they create animosity and financial hardship down the road.
One of the most common points of confusion in my first conversations with clients is helping them understand what constitutes a legal separation in North Carolina.
The legal definition of what it means to be “separated” is different from state to state. So it is crucial to understand what it takes in your state, in my case, North Carolina.
The problem is that the definition is murky. It is easy to know whether someone is legally separated on the ends of the spectrum, but difficult to determine whether that is true for couples somewhere in the middle. Essentially, a couple is legally separated in North Carolina if they are living under separate roofs with the intent (only one spouse need have this intent) for that separation to be permanent. If a couple is living in the same house, then they are clearly not legally separated. If a couple is living in separate homes on different lots with the intention of beginning the 365 day waiting period, then they are physically separated. That sounds simple enough. But what about everything in between?
What is a roof? Which roofs count? How far away does that roof have to be? What if intent for things to be permanent changes over time? When does a trial separation become a permanent separation to start the 365 day clock for a divorce? Do you have to tell everybody that you’re separated? Is some announcement necessary?
And, there is another pesky little aspect that comes into play that is hard to nail down. Roughly speaking the couple can’t seem to be married in the eyes of other people. Or, as the Court of Appeals put it:
“Separation, as this word is used in the divorce statutes, implies living apart for the entire period in such manner that those who come in contact with them may see that the husband and wife are not living together. For the purpose of obtaining a divorce under . . . G.S. § 50-6, separation may not be predicated upon evidence which shows that during the period the parties have held themselves out as husband and wife living together, nor when the association between them has been of such character as to induce others who observe them to regard them as living together in the ordinary acceptation of that descriptive phrase.” Young v. Young, 225 N.C. at 344, 34 S.E.2d at 157. Tuttle v. Tuttle, 36 N.C.App. 635, 244 S.E.2d 447 (N.C. App., 1978)
That last sentence says a lot without clarifying much. But, I interpret it to mean that the separation has to give outside observers the clear indication that the spouses are no longer living together.
There are infinite permutations of a legal separation and many lie somewhere between the obvious ends of the spectrum. So, it often takes an attorney to determine whether a couple has been legally separated for the mandated period in North Carolina and are therefore eligible for a divorce.
If you’re not sure whether your plans to separate or your current separation qualify as a legal separation in North Carolina, call an experienced family law attorney to help you sort it out.
I noticed recently that one of the most common Google searches in the divorce realm is for online separation agreements. Most divorce attorneys don’t need Google to tell them that many clients are looking for faster and cheaper ways to get through the divorce process. They answer calls and emails every day telling them as much.
Online separation agreements are a seemingly obvious way to get what you need without the time and expenses of an attorney. Why pay a lawyer to write words on paper when the internet will give it to you for very little cost or even free?
Well, it turns out there are some good reasons. The online agreement forms that I have seen and have reviewed for clients typically have many holes, and frequently include terms that would not be advised by an attorney. They suffer from both over and under inclusion.
Here are three of the more common and problematic issues that I see:
- Life insurance: Many if not all of the online forms I have seen leave out any mention of life insurance. Life insurance terms are commonly used in North Carolina to secure long term payments of child custody and spousal support. These missing terms leave spouses receiving support payments vulnerable.
- Filing or recordation of the Separation Agreement: Many online agreements include language that contemplates the agreement being filed with the court or recorded with a register of deeds. However, at least in North Carolina, filing an agreement with the court and/or recording it has serious consequences that clients don’t foresee and don’t realize will have serious implications in their case. It might be appropriate in a case, but that needs to be discussed with an attorney to make sure you are making an educated decision about this issue.
- Approval by Court: Similar to the filing of an agreement issue, many of these online agreement forms contemplate a court needing to approve or review the agreement. North Carolina law is different than many other states in this regard and many online forms do not track North Carolina law.
- Overly general language: There are some issues under North Carolina law where very specific language is required. These online forms rarely focus on individual state law and therefore frequently omit the more particular language.
These issues do not necessarily make online forms unusable or worthless. These forms can be useful to help people identify many of the issues and details that they will need to figure out to reach a comprehensive separation agreement. They often serve as a useful guide for the initial framework for couples that want to begin the conversation at the kitchen table. And productive conversations between divorcing spouses are the very best way to save money with attorneys; the more clients can figure out on their own, the less they pay attorneys to figure out for them.
However, the holes and problems with many online forms make them risky for use without review by an attorney to identify and fix the problems before they are formalized.
Most of us have heard of the “fight, flight, or freeze” responses that we are pre-programmed to experience in the face of a threat. This is often attributed to the “reptilian” part of our brain or the part of our brains that evolved first and have the oldest programming.
Many people experience the news of divorce as a huge threat, if not an existential threat. So, it is only natural that an impending separation or divorce would trigger our reptilian brains and cause us to respond with a fight, flight, or freeze response.
The problem is that reptiles have really bad divorces. (If you can find one that had a reasonable divorce, I’d love to hear about it).
Engaging in a fight, flight, or freeze response upon learning that your spouse is considering ending the marriage prevents you from doing the most important thing you can do at that moment: Think.
Some people choose to fight immediately. This looks like someone seeking out the “toughest”, “meanest”, most “aggressive” divorce lawyer they can find. This move is protective in some ways, but also frequently leads to highly adversarial and needlessly expensive wars. The fight responses is often a self-fulfilling prophecy. You think there is going to be a fight, so you create one.
The flight response is no better. Some people simply avoid the situation and reality of what is happening. They refuse to engage an attorney or discuss things with their spouse. They simply try to pretend that it is not happening. This also leads to needless cost and fighting because their spouse has no choice but to ask a court to intervene when someone refuses to engage in the divorce process. The court is the only thing that can force someone to engage, or at least impose a high price for non-engagement.
Freezing is also a bad plan. Things begin to happen legally, financially, and practically when separation and divorce are on the horizon. If you cannot actively participate and shape those events then you may suffer negative consequences for a long time.
So, what is better than following our reptilian brain down one of these counterproductive paths? I believe that the best first move is to educate yourself. That does not have to mean talking to an attorney immediately. But, it should mean doing some research into your divorce process options, including negotiation, mediation, collaborative divorce, and even litigation. You can choose from many methods and processes to resolve your divorce issues. It is not a one size fits all area of the law. But, you should know which processes are a good fit for you, your spouse, your family, your resources, and your goals. A good lawyer can help you identify your goals, educate you about different methods, and help analyze what process is the best fit for you and your situation without pressuring you into the one they prefer.
Everyone will likely have some form of the fight, flight, or freeze response to the news of a divorce. It is only natural. But, that is not the part of your brain that should be making decisions in these important moments. The key to making sure the more evolved parts of your brain are in charge is to educate yourself on your options as quickly as you can.
- Closing the door to alternative, potentially better, solutions before they can be analyzed
- Truncating the information and fact gathering and therefore eliminating necessary information from consideration
- Creating dangerous blind spots
- Entrenching thought processes and creating “positional” bargaining that often leads to the creation or increase of hostility and destruction of basic trust
- Creating a dynamic in which any challenge to one spouse’s premature certainty feels like a challenge or criticism; i.e. “I’m not sure that will work” is heard as “your idea is terrible/wrong/dumb”
- Making the other spouse feel as though their input is neither wanted nor valued
I think my law school acceptance letter was probably a week old when I was given the gift of the first lawyer joke that was directed at me (no, I don’t remember it). It was an early lesson in how society perceives or misperceives lawyers.
I didn’t know any lawyers growing up. No one in my family or extended family was a lawyer. As far as I knew, lawyer jokes were completely accurate. (Although I did hear with some frequency the exasperated refrain from every parent with an argumentative child: “You should be a lawyer when you grow up.”)
But, almost two decades into a legal career, it is clear to me that while our reputation as lawyers has largely been earned, so much of what we do and why we do it is a complete mystery to the public and our clients.
That mystery is a double-edged sword for lawyers. On the one hand, it creates a sense of value for our services because only the specially trained can understand and navigate the labyrinthine legal system. On the other hand, it allows for an interpretation of our professional behavior (and therefore our profession as a whole) as unethical, abusive, dishonest, and just plain mean.
I think one of the solutions to this is for both lawyers and clients to have a better understanding of what lawyers do and why they do it. As a client, I imagine it is very difficult to understand all of the context and the subtext of the advice provided and steps taken by an attorney. And while there are certainly some attorneys that have reveled in their inglorious reputations, the vast majority of attorneys that I’ve met would prefer to not be demonized by opposing parties and the public in general.
All of this led me to a book recommended by a colleague called “Why Lawyers Behave As They Do” by Paul G. Haskell. Part of an American Bar Association book series on law, culture, and society, the University of North Carolina at Chapel Hill Law Professor explores and explains the choices that lawyers have to make every day in representing clients. It explains why the attorney behaviors that society frowns upon come to pass, the often complex analysis of what the “right” thing is in a particular situation, and the tensions created by the pressures to obtain results for clients.
I read this book and immediately bought a copy for the young law school graduate I knew. In my perfect world, every lawyer would have to read this book before beginning their practice and every few years as a refresher. It is a tremendous resource for lawyers.
But, it is also the best source of insight for a client that I have found. At only 105 pages, it is a short read. But, it explains so much of what an attorney is required to do, the choices they face, and the sometimes very thin lines they walk in pursuing the best outcomes while acting honorably and in accord with their personal values.
If you are a lawyer, this book will be a valuable, if not fascinating, exploration of what you do every day, the decisions you make, and how and why you make them.
If you are a client that regularly uses legal services or is currently working with a lawyer, taking a few hours to read this book will give you a new and revealing perspective on what your attorney is doing, and why.
Technology is making a lot of things easier these days. We have apps for almost everything, some more useful than others.
One way apps can be very useful is in helping families handle the practical challenges of co-parenting during and after a divorce.
This article lists seven apps specifically, though I’m not endorsing any of them individually. They all have pros and cons and it usually is a matter of client preference and matching what the app does to what a particular family needs from it.
But, I have seen many cases in which finding a user-friendly system for communication, scheduling, and even financial coordination goes a long way towards easing the burden and tension in a divorce.
Some clients use shared calendars, emails, phone calls, and texts. Some are overwhelmed by too much communication on too many platforms and need one app to capture it all for them. Collaborative clients are not generally worried about creating a record of communication, but other clients sometimes are and apps are a good way to do that in a way that is easier to introduce as evidence later.
These apps are also a good way to let other caretakers keep up with a busy family. These people include nannies, babysitters, step-parents, extended family, grandparents, etc… As a parent, I know that sometimes one small schedule change can generate a lot of different emails, texts, and phone calls to keep the people in the system on the same page. This usually becomes even more difficult when co-parenting from different homes.
I recommend that any parent going through a divorce investigate these apps and determine whether they can ease the burden for their family. In a transition that is never easy, and sometimes quite difficult, every little bit helps.
I expect that any experienced attorney, and especially any experienced divorce attorney, has experienced the difference between resolving the legal issues in a case and resolving the conflict in a case.
There is a big difference.
There are many family law cases in which a judge enters an order resolving the legal issues in a case, only to see that same family over and over again year after year. Each time that family appears the judge resolves the legal issue at issue and sends them away, only to have them re-appear again with some new (or not so new) legal issue. (These are the most lucrative clients for a family law attorney, by the way).
The reason for this revolving door on the courthouse is that while the legal issues in the case get resolved, the conflict does not. And in family law, it is the conflict that births the legal issues, not the other way around. However, the way the legal issues are handled often fuels the conflict, which in turn fuels more legal issues. It becomes a feedback loop.
This is perhaps the biggest limitation of the legal system when it comes to family conflict and divorce. A judge can issue orders to fill several court files, but the judge is almost powerless to resolve the underlying conflicts that fuel the legal issues. Judges can and do order family therapy in some cases to try to address the deeper dynamics at the root of the problem. But, that is not the norm, and it frequently comes so late in the game that real change is difficult.
To get to the root of the problem the conflict between parents or spouses needs to be addressed. Legal issues and problems are symptoms of the conflict. A judge can treat the symptoms, but it takes skilled lawyers and other professionals to work on a cure.
The legal profession as a whole, in my experience, has been narrowly focused on treating symptoms for family law clients instead of working on the root causes. In some ways that makes sense; lawyers are trained from law school through their early years of legal work to learn how to deal with legal problems. They are not trained to deal with anything deeper than the legal issue involved. And many lawyers have no desire to look behind the legal issues to the root of the conflict. It may come as a surprise that many lawyers, including family lawyers, are not comfortable with the emotions that are behind the curtain and don’t possess the skills to effectively handle them.
To be fair, some clients who hire a family law attorney have no interest in looking at the conflict either, and only want an attorney that will get the best legal outcome possible, regardless of collateral damage, or the feedback loop. Those attorneys don’t have the opportunity to address the conflict if their clients are not interested or able.
But, in my experience, most clients are open to addressing the actual conflict if they are shown in the early stages how that conflict is fueling the legal issues and that addressing the conflict will likely reduce or eliminate future legal problems. It is not easy or fun. It certainly takes maturity and self-discipline. But it is possible and it is possible in many more cases than it is offered.
If you are facing a divorce or family law issues, give some thought to whether you prefer to address a string of legal issues for years, or address the conflict upfront to avoid a string of legal issues for years. And find an attorney that is willing and able to help you do that.