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.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.Attorneys as Peacemakers; Or, Why I Do What I Do
This Tedx video by David Hoffman explains why I do what I do at least as well or better than I can. It is powerful for me and hopefully for others. And, I think it explains the intellectual, professional and emotional journey for those layers who have chosen to be peace makers. Enjoy.Shared Parenting Bill in North Carolina Senate
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>
Why Smart People Can Have Dumb Divorces
Left brain = logical thinking
Right brain = emotional thinking
Don’t Confuse Arguing for Negotiating
Does your attorney argue or negotiate? Arguing is not the same as negotiating.
Negotiation, at its root, is problem solving. It is the act of solving joint problems.
Arguing, by contrast, is at its best the act of trying to persuade someone to adopt your point of view. It is the act of trying to convince someone else that you are right, and they are wrong. At its worst it is trying to convince someone that that you are worthy and they are not; they are bad, and you are good.
Negotiating involves a consideration of the other party’s perspective, and what they need from the negotiation. It involves some degree of effort to meet the other party’s needs in a resolution, in recognition that resolution is a two way street.
By contrast, argument ignores the other party’s part in a resolution. It treats the other party as if their agreement is not required for resolution. It says to the other person “You are an obstacle to me having what I want.” That may be true, but
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.
In Divorce, Indecision is a Decision
Not making a decision is a decision. In a divorce context, not making a decision about how you want to resolve alimony, child support, equitable distribution and custody issues is a decision to let your spouse decide how that will happen. And, it is frequently a decision to go to court, whether you intended that or not.
Take this common scenario: A Wife (or Husband) tells her Husband (or Wife) that she wants a divorce, and suggests that they use the collaborative process because it will protect the kids and their finances.
In some cases, the Husband’s reaction is to do nothing, and not make a decision on how to proceed. Essentially, stonewalling.
Sometimes this happens because people think that the divorce won’t happen if they don’t participate. They think, “If I don’t pick a process, then a divorce cannot or will not happen”. The truth is that it will happen with or without them. But, it will happen in a public courtroom instead of a private conference room. And, the parties will have lost most, if not all influence over the process and outcomes for their children and their financial lives.
Other people in this situation think that agreeing to a process means that they are agreeing with the divorce. That causes them to avoid choosing a process as a means of voicing their protest of their spouse’s decision to be divorced. This is a self-defeating approach. It is possible, and very common, to both disagree with the divorce and participate in the collaborative divorce process.
Many people operate under the false belief that they have to agree to a divorce. In North Carolina, a party can obtain a divorce without their spouse’s consent. So, if your spouse tells you that they want a divorce, they can get one whether you agree or not. You might be able to delay it, but you cannot prevent it.
Further, failing to choose a divorce process forces the other spouse to go to court. A courtroom divorce process is the only process that one party can force the other into. So, if one spouse refuses to choose collaborative divorce, mediation or another process, then the other spouse has no choice but to seek the help of a court. Therefore, refusing to make a decision is often a decision to go to court. That option is typically the opposite of what both spouses wanted.
So, if your spouse has told you that they want a divorce, then you need to investigate your process options. And then you need to participate in choosing a process. If you don’t, you will be making an unintentional decision, and that may well be choosing a battle in court.
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