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.)

New Article Explaining Collaborative Divorce

I am happy to announce that co-author Michael Kothakota and I have published our latest article on Collaborative Divorce in Resolved:  Journal of Alternative Dispute Resolution.  

Interdisciplinary Collaborative Divorce:  A Process for Effective Dispute Resolution is intended to provide a brief but thorough explanation of the interdisciplinary collaborative divorce process for both practitioners and clients.  

Each professional and prospective client must determine whether the ICD process is appropriate for their situation.  But, our hope is that this article will provide an introduction to the process and help people make more informed decisions.

If you have questions about collaborative divorce after reading the article, then please do not hesitate to contact me to discuss the process and whether it may be right for your family or your practice.  

5 Tips for Protecting Your Kids in Divorce

 

The vast majority of my clients with children share one huge concern:  My divorce will ruin my children’s chances of being happily married. 

 

Fortunately, the research does not support the idea that divorce, by itself, negatively impacts the odds of a child being happily married. 

 

The research does show that the most important factor for kids of divorce is not that their parents were divorced, but the level of ongoing conflict between the parents.

 

So, if you want to protect your child from the negative effects of divorce, follow these guidelines:

 

  1. De-escalate conflict between you and your spouse whenever possible;
  2. Address conflict as quickly as possible so that mole hills do not become mountains;
  3. Choose a divorce process that promotes peace and problem-solving, like collaborative divorce or interest based mediation;
  4. Choose lawyers that promote problem solving and non-combative tactics;
  5. Treat your spouse as the parent of your children, and not as your enemy.

 

These steps will not make your divorce easy for you or your child.  But, they will help insulate your child from the lasting negative impacts of divorce.  

Unpredictable Alimony Awards

Alimony has always been of the most unpredictable issues for spouses and attorneys.  The chair of the Family Law Section of the American Bar Association indicated in a recent article “Divorce law is one of the most discretion filled areas of the law…”

In many states, including North Carolina, judges have wide discretion in awarding alimony, both in amount and duration.  Compare this to child support awards that are largely determined by a formula in North Carolina.

A recent article in the February 2012 issue of the American Bar Association’s Journal highlights national efforts to create more predictable alimony awards. 

The article states, “Many agree that divorcing spouses deserve more predictable outcomes” and that the current alimony process in court “has been attacked as antiquated, unbalanced and unfair.”

Here are some of the proposals and efforts that have been undertaken by other states or legal groups according to the article:

  • In 2011 Massachusetts passed the Alimony Reform Act.  The new law created a formula for calculating alimony awards.  The law also ends alimony when the paying party reaches retirement.  Further there is now a 12-year limit on alimony payments in that state.
  • Oklahoma is trying to reduce a party’s ability to get military retirement pay as alimony.
  • Rhode Island generally limits alimony payments to five years.
  • In 2004, a Florida lobbying group tried to end alimony in that state forever.
  • The American Academy of Matrimonial lawyers suggests the following formula:
    • 30% of the paying party’s gross income minus 20% of the receiving party’s gross income
    • The receiving party should not receive more than 40% of the couples’ total combined gross income
    • For example: If one spouse makes $100,000 and the other makes $50,000, the numbers look like this:  $100,000 x 30% = $30,0000; $30,000 minus $50,000 x 20% ($10,000) = $20,000.  So, the receiving spouse would get $20,000 a year in alimony.
    • And, the duration would be calculated by multiplying the length of the marriage by a fraction.

These efforts clearly indicate that there is a big problem for divorcing couples using the courts to determine alimony awards.  

Their outcomes are highly discretionary and therefore very difficult to predict. Of course, couples always have the option to opt out of the unpredictable alimony system currently in place. They are free to resolve alimony issues in whatever way they choose in processes such as collaborative divorce and mediation. 

As the current alimony system comes under further attack, wise couples may elect to do just that. 

 

 

Opportunity Costs in Divorce

One issue that people frequently ignore in their divorce is opportunity cost

Opportunity cost is defined by my computer as “the loss of potential gain from other alternatives when one alternative is chosen.”

That’s a fancy way of saying that when you are doing one thing you are giving up the potential benefits of another.   It means that if you go west, then you give up whatever good things you would have found by going north, south or east.

So, what does that have to do with divorce? 

In divorce, people make choices from the day someone says that they want out until the divorce, and frequently far past that point.  They make choices about what to do with their energy, peace of mind, money, kids and stuff. The choose how to behave towards the soon to be ex-spouse.

In most cases, clients give some thought to the impact of their choice; i.e. “when I do this, the result will be ‘x’.” They think about the effect that will be brought about by their decision. 

What they generally fail to consider is the how that compares to the other possible decisions that they could make.  That is, they spend a lot of time thinking about what they’ll find if they go one direction, but very little time thinking about what they give up by not going another. 

For instance, when people choose to use an adversarial process for their divorce, they don’t give much thought to the benefits of non-adversarial processes that they are giving up.  They see what they hope to gain by duking it out, but they fail to see what the have given up. 

In many cases, people fail to see that choosing to fight about something is also a choice to forgo the peace of mind, free time or money that they could enjoy if they were to choose another way to handle their divorce. 

I frequently ask clients to consider what they could do with their time, energy and money if they resolved their case quickly and did not have to deal with their divorce anymore.  That gets them to think about the opportunity costs of the decision they are considering. 

Sometimes, it makes sense to continue the tough work of negotiation or a court battle.  But, that decision should only be made once the client considers the opportunity cost of that decision.

If you are considering a divorce, you may want to spend some time considering what you would do with the time, money, peace of mind and energy you can save by choosing to resolve your case through collaborative divorce, mediation or other non-adversarial processes.