Divorce Mediation & Collaborative Divorce Articles

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3 don’ts for your divorce

photo of courtroomPeople turn to divorce attorneys for guidance on reaching a divorce settlement. In more than 30 years in practice–whether for collaborative divorce, divorce mediation or litigation–the advice I offer often deals with what NOT to do. The top three in the what NOT to do while negotiating a divorce settlement includes:

Dating during the negotiation:

This may be the least heeded advice offered. Anecdotally speaking, I’d say that with at least 50 percent of the couples we work with that there is at least one person who has begun dating. This is not unlawful and does not legally impact the negotiation. It can, and often does, emotionally impact your spouse and this can and does impact the tenor of the negotiations. And that can add to the stress level of the negotiation and, potentially, the amount of time it takes to come to an agreement.

People are human. While it may not be in the best interest of the negotiation to date, it does happen. If you are dating, proceed with caution and heed the following advice:

Be discreet – Going to places where people you know might be seen you with your new love interest is probably not a good idea. Be selective in where you go. While the actions of two consenting adults should be your own business, if word gets back to your spouse and you think it could be upsetting, behave with that in mind.

Social media – Do not post photos of you and your new love interest on social media. As logical as this might seem, people still do this and word gets back to the spouse. Make sure to alert your new love interest of this as well. The same goes for sharing photos by text. You just never know in whose hands these things might end up.

No contact with the children – Divorce is confusing for everybody involved. Even more so for the children. You may be happier now that you are with somebody new. That doesn’t mean your children will be as well. And you can rest assured if you introduce your new s.o., it will get back to your ex. Take it from somebody who has worked with divorcing couples for a very long time—just don’t do it.

Be impatient

Collaborative divorce and divorce mediation can and usually does proceed faster than litigation, which can take between 18 months to several years. Yet expecting your divorce negotiation to conclude within two or three months is completely unrealistic. You can safely presume your collaborative divorce or divorce mediation will probably take between six months and a year.

I’ve had clients who entered the negotiation with a certain deadline in mind. When that deadline approached, he and his spouse grew frustrated and opted out of collaborative divorce for litigation. I recall running into that same individual a year later at the courthouse and the divorce still had not concluded.

Your divorce is like a recovery from surgery. Your best chance at the best result depends on the path you set in the early stages and staying the course. Impatience can and often does lead to setbacks, which only delays the end result.

Make unilateral decisions

This piece of advice mostly concerns couples with children, though it also has relevance to people who own property together. Simply put, don’t make any big decisions without your spouse’s knowledge.

If you’re the custodial parent, don’t change the children’s school, doctors, daycare, etc. without consulting your spouse.  Also, important decisions like putting your children in counseling should be done as a joint effort with your spouse.

Some other obvious-but-not-always-to-some things you should not do without consulting your spouse include: selling the family home; making large capital improvements (e.g. bathroom remodel); or make any large purchases (e.g. buying a jet ski, new furniture, etc.). These types of purchases and decisions have a bearing on financial statements and can certainly make for frostier negotiations.

No matter what your method divorce—collaborative divorce, divorce mediation or litigation–reaching a divorce agreement is never easy or simple and requires the focus of both parties. While these three things might seem like common sense, you would be amazed how often it can occur—with almost always negative repercussions.


Who gets the cat?

Divorce mediation and collaborative divorce offer a flexibility you don’t find in litigation. It’s designed that way so that both sides can negotiate, compromise and resolve issues to reach a settlement. The structure of both formats and the willingness of both parties to compromise typically cuts a path to resolution. Until you run into an issue that creates a roadblock. One common one is custody of the family pet.

Of course, there are other issues that can create a stalemate: The family home or a vacation home. An inheritance. A jointly owned businesses or investment. It could really be anything that a couple just can’t seem to come to a consensus on—even with the resources available as part of either divorce mediation or collaborative divorce.

So short of applying Solomon’s wisdom and cutting the family cat in two, how do we resolve issues where both parties can’t compromise?

First, we resolve the negotiation points that can be resolved first. If we know there’s a contentious issue, we set it aside and address things that the couple can come to an agreement on. This keeps the process moving forward. Just as importantly, it helps the couple acclimate to the negotiating process.

Acclimate to the negotiating process? What does that mean? Negotiating is about give and take. As an individual, you know what you really want but probably can’t get, you know what you would be willing to settle for, and then there’s the category slightly below that of what you can live with. As part of the negotiation, couples are constantly going through the process of conceding points here and there to get through the process and reach a livable settlement. Reaching a consensus on the easier issues first builds trust and an understanding of how negotiations work so by the time you reach the difficult issue, couples are better able to come to an agreement.

Unfortunately, roadblock issues—like who gets the family pet or what a marital asset is worth– can remain a roadblock issue even after going through the process. That’s when we provide a few other options to come to a resolution.

An arbiter provides one solution. An arbiter is a neutral party like a retired judge or an attorney working outside the courtroom. He/she will hear arguments from both parties and then come up with a decision. In choosing this path, both spouses agree to accept the decision of the arbiter in advance, which is binding. It is like having a mini trial on only one issue without jeopardizing the compromises that the parties have already made.

A neutral appraiser can provide another solution. When the dispute involves money—e.g. one spouse thinks an asset to worth more than the other—we can hire an appraiser to conduct a valuation. Typically, this is done with real estate or a business where one ex wants to be bought out. Based on the neutral valuation, we can return to the negotiating table with something more concrete than simply what one party thinks their share is worth. If the party who is getting bought out is still afraid that the asset will be sold after the divorce for an amount greater than the valuation, we can build in language for an additional payment if this actually occurs.

Another option involves hiring a third-party conciliator. Like the arbiter, he/she will talk to both parties but not together. Instead, the conciliator will shuttle back and forth between each of the parties. This can work because each of the parties may be willing to share their thoughts and feelings with the conciliator when they might not be willing to share those thoughts with their spouse. Using the information obtained in the separate conversations, the third-party conciliator may be able to facilitate a resolution that both parties sign off on.

In terms of the family pet, it’s a little more complicated because it’s not really a dividable asset. And there are many laws against even suggesting splitting the pet in two to see which person would be more upset. Generally, the hope is through the application of some creative negotiations or the use of a neutral third party, the couple can agree on an ownership/visitation agreement.

Thankfully, these issues do not come up in every divorce. But couples entering into divorce mediation or collaborative divorce do have the assurance that all their issues can and will be resolved even if it means finding creative dispute resolution options.


The new tax law and divorce

How will the new tax reform law impact divorce? While most of the focus has been on the lowering of the tax rate for corporations, the new law will also have a significant impact on divorces as of January 1, 2019. The most notable of those changes concerns alimony.

Previously, spouses paying alimony could declare those payments as a deduction. Conversely, spouses receiving alimony had to declare it as income. The new law takes both of those things away and that will influence how some divorce settlements are negotiated, particularly collaborative divorces and mediation.

In litigation, child support and alimony follow a formula without any room for negotiation. One of the many things that make collaborative divorce and divorce mediation an attractive option is that there can be some flexibility with alimony.

For example, let’s say a spouse is paying child support and alimony. Perhaps under the previous set of rules, the alimony payment pushed the ex receiving the alimony into a higher tax bracket. So, even though he/she was receiving the alimony payment, it was costing him/her money. As part of the negotiation, we could increase the child support payments, which are not considered income, so that the spouse would remain in the same tax bracket.

This is but one example. It’s also not uncommon for a spouse to actually want to pay MORE alimony to take advantage of the deduction. Alas, as of January 1, 2019, that option will not exist.  Alimony will remain deductible/income for divorces finalized prior to January 1, 2019.

What are some of the other impacts of the new tax reform law? There will certainly be an impact on owners of corporations going through a divorce as the tax rate has been dramatically reduced. Similarly, the small business owner who filed as a sole proprietor now may opt to become an LLC or incorporate to take advantage of the new law and that may have to be factored into a divorce.

With many divorcing couples with children, the custodial parent will often desire to stay in the family home to mitigate the emotional impact of the divorce on the children. With the new tax law, the deduction allowed on state and local income taxes, and property taxes is now capped at $10,000.  This might make staying in the family home less feasible financially for the custodial parent.

There are any number of other scenarios where the new law could have an impact on divorce settlements. The flexibility provided by divorce mediation and collaborative divorce is still a great benefit to divorcing couples as everyone tries to get their arms around the new law.

The new tax law shines a light on something that’s long been true of divorce mediation and collaborative divorce: the use of professionals. Specifically, I’m talking about CPAs and financial planners.

In litigation, divorcing parties will hire their own attorneys and retain the services of an accountant or financial planner to review assets. As an expense-saving move, many divorcing couples will opt not to bring in one of these financial professionals. That cost-saving move can be extremely costly if you’re not fully aware of all your finances or financially savvy.

A CPA and/or a financial planner is typically part of the team of professionals involved in a collaborative divorce–with the cost split by both parties. In divorce mediation, it’s not uncommon for divorcing couples to do the same, again while splitting the fees. With the new tax law being so new to all of us—CPAs included—it simply makes sense to have a financial professional in your corner during your divorce. That’s why if you and your spouse can agree on a less adversarial approach, divorce mediation or collaborative divorce makes more sense than ever.


Post-divorce mediation

A marriage may end legally. If children are involved, the marriage continues in many ways long after the divorce is final.

Issues will arise. You and your ex may not agree on an issue or be able to come up with a compromise on your own. If you effectively ended your marriage through mediation, it can also be an effective means of resolving parenting and other issues that arise down the road.

As much as possible, a divorce settlement tries to provide as much permanency to as many issues as possible. The division of financial assets is a good example. When the marriage ends that issue is typically put to bed. The same is not true when children are involved. There are many issues that can arise post-divorce. Most have to do with parenting schedules.

In coming up with a parenting schedule, some couples decide to leave many things open—who goes where on holidays, summer vacations, extra-curricular activities, etc. While you may think you want that flexibility and you can work things as out as you go, the reality can end up being quite different.

For example, one spouse might be able to play more of a role with transportation to and from extracurricular activities in the first year after the divorce. But perhaps after a while, he/she meets and marries somebody else. Suddenly the logistical arrangements include another person.  The old arrangements might have to change.

Holidays are another area where after a year or two of one schedule it might be time to reassess.  Children get older and may want more input.  This can be even further complicated when you or your ex remarries (e.g. your new spouse wants to see his/her parents during the holidays but you it’s your year to be at home and have Christmas with your children).

Other things will also come up during your children’s lives that will require alterations to the parenting schedule. Maybe your child will need psychological counseling or special tutoring. Perhaps your child wants to attend a private school. There are any number of changes with your children that would necessitate revisiting this part of your divorce agreement.

In addition to the parenting schedule there are other issues that might be disputed after a divorce.  For example, if a divorcing couple agrees to not sell the family home for a period of time to let the children adjust, there are many potential areas of disagreement while both parties jointly own the home and when they finally decide to sell. For example:

  • The custodial parent might want to make some cosmetic repairs to the house but the ex disagrees or does not want to pay for those repairs.
  • The ex not living in the house has remarried and wants to buy his/her own home and needs the cash from the sale of the previous home.
  • The parties have different opinions about what the house should sell for.

Again, these are a few of many scenarios that could occur.

Appearing before a judge in court takes away the control of the outcome from you and your ex. You will each make an argument and then the judge will rule. One of you will be unhappy at the end of the day and that can have negative overtones which can impact the children.

Mediation for post-divorce situations like the above put the control of your destiny in the hands of you and your ex. With a mediator, you can negotiate an agreement between you and your ex that will best reflect the wishes of you and your ex. Will it be exactly what you want? No, but when you walk into court to present the agreement to the judge, there will be no surprises and the decision will be on the terms of you and your ex, not the judge.

When couples divorce through mediation, it hopefully sets up a pattern of communication that helps them develop the skills to resolve conflict going forward. As with many situations in life, there are some issues where it can be difficult for two people to come to an agreement. For times like this, a third-party, like a mediator, can be a huge benefit—much like it was in coming to your divorce agreement.

By utilizing mediation for post-divorce disputes, you can hopefully prevent resolvable issues from festering and jeopardizing a working relationship with your ex. A working relationship between parents with an open line of communications will always benefit your children.


A way to get closure out of your divorce

Many people go through the divorce process and instead of gaining a sense of closure, they harbor bitterness and resentment. For some, the bitterness never goes away. Now, that could stem from the circumstances of the break-up and certainly every case is different. Yet the type of divorce you choose—-litigation, mediation or collaborative—can be a contributor or a healer, and that should be something you consider.

It’s easy to see how bitterness could happen with the litigation process. You meet with an attorney. You fill out some paperwork, provide your financials and share your story from your own perspective. Your spouse does the same. Typically, any conversations going on during this period are conducted between the attorneys who are one hundred percent in their client’s camp with little or no interest in the other party’s perspective.

Your day in court finally comes. You are standing in front of the judge and next to your attorney. He or she is saying wonderful things about you and not so wonderful things about your spouse. And you may be fine with that until you hear from your spouse’s attorney. He/she is doing the same thing: saying things about you that you don’t agree with or find uncomplimentary at best and downright insulting at worst. During this process, you and your spouse say very little or nothing at all. Then, the judge makes his/her ruling based largely on pre-existing formulas. The disparaging remarks are left hanging and unresolved.

With collaborative divorce, it’s an entirely different process. Your voice and participation are mandatory. The process requires you to meet regularly with your spouse and team and to have an actual dialogue–and, more importantly, to listen. You actually have a civil discussion about the things that divide you. Then you try to find a resolution that factors in both of your concerns. This is where your closure begins.

Now, many couples, even ones that agree about most things in the dissolution of the marriage, have difficulty in communicating. That’s why many collaborative divorce teams include a divorce coach.

The divorce coach is trained to help the parties express themselves in both truthful and respectful ways. He/she will talk to you to get a sense of how you and your spouse communicate. Often, the divorce coach is interested in trigger points for you and your spouse. You know, the things he/she does that set you off. By identifying these things, the two of you can develop a strategy on the best way for you to react if you hit a trigger point. The divorce coach will work with your spouse in a similar fashion.

Finally, the entire goal of a collaborative team (the attorneys, the parties and the coach) is to find a resolution that everyone can live with. This changes the tone of the discussion. The divorce coach will be in the room and keeping the conversation/negotiation productive. Part of his/her job is to monitor the discussion and to gauge the emotions of both you and your spouse to see if anybody is losing their composure. By simply recognizing the triggers, identifying communications designed to get a reaction, and sometimes calling for a short break, the divorce coach can help keep a meeting from deteriorating. You would be amazed how a discussion with the divorce coach can get you or your spouse through the rough patch and the meeting back on track.

By going through the collaborative divorce process, many couples lay the foundation of how they will communicate with each other going forward. In many cases, couples learn to communicate far better as exes than they did as a married couple.

At the end of a collaborative divorce negotiation, you will have had ample opportunity to be heard. Metaphorically speaking, you will have had your day in court and the words and feelings will come directly from you, not your attorney.

Does that mean anybody who goes through a collaborative divorce has no resentment or bitterness? No. In a lot of divorces, there’s typically one person who didn’t want it. Collaborative divorce won’t change that. But there’s just something about laying all your cards on the table and making your feelings known that minimizes feelings of resentment. You walk away with that sense of closure you might not have had otherwise.


Divorce mediation without the divorce

There’s a misconception that a couple must be divorcing to engage in mediation. In an age where second and third marriages are commonplace, it’s not unusual for couples to enter into mediation to sort out an agreement prior to marriage (Prenuptial Agreement), when marriage is not in the plans (Cohabitation Agreement) or when the parties are trying to save a troubled marriage (Marital Agreement).

Today, I would like to talk about mediation of a Cohabitation Agreement.

Cohabitation Agreements are particularly popular with older couples who have decided for a variety of reasons to live together without getting married. These couples often have children, homes, any number of financial assets and many responsibilities and commitments (e.g. care for elderly parents). Because no marriage is contemplated, many of them want to clarify the ground rules while they are living together and who will get what if one of them dies or becomes incapacitated after they move in together.

This type of agreement can take on many shapes and forms. Perhaps the couple buys a home together. The mediation could state that, in the event of death, the house remains available to the survivor until his or her death. At that time, the property can be sold with proceeds being distributed to the heirs of both parties as dictated in the mediation and estate plans.

Now, the above example might sound like a reasonable course of action for an unmarried older couple. Yet a child of one of the couple might feel entitled to a share of the house after his/her parent’s death rather than waiting for the death of the survivor. And, in fact, without a specific agreement to the contrary, they might be entitled to just that.

While this is but one example, there are numerous other issues that could be included in a mediation of this type. It could cover healthcare issues, elder care issues and more.

Disposition of assets purchased by an unmarried couple is another area where clearly stated language in a Cohabitation Agreement could head off conflict between heirs and one member of the couple after the death of the other.

Another scenario could be if one of the couple has a relative, child or parent who requires assistance—financial, medical or some other kind. The Cohabitation Agreement might include language about how that person’s expenses will be paid both during the cohabitation and in the event of the death of the caretaker. For example, the agreement could state there are funds segregated for the dependent. Conversely, there could be language where the survivor spouse does take on that responsibility. It really depends on the couple and the situation.

Part of the reason couples choose divorce mediation is to have control over the terms of the final Divorce Agreement. The same is true of mediation prior to cohabitation.

Older couples choosing to enter into a serious relationship the second, third time—even more—have the wisdom of previous experience. They hope that their family members and heirs are happy for their new situation, but have a decent idea of who is not or who might not be. They enter their new life with the realization they want to minimize the problems between their own family members and their new partner in the future. One of the best ways to do this is to put their objectives and intentions in a legally binding written document.

In last month’s blog, I talked about how I was proud of my clients for the growth they demonstrate from the first meeting to the end of the negotiation. I can honestly say the mediation for a Cohabitation Agreement, for all intents and purposes a lifetime commitment, is also a memorable part of my job.

It’s touching that a couple cares enough about each other to want to leave the other in a good place after one of them is gone even if they are not married. It makes a similar statement to children, grandchildren and other relations. By taking care of the decision-making at the beginning, the relationship can really be about the couple and their remaining years together.


Mediation attorney: I’m proud of my clients

photo of mediation attorney with clientsThat’s not a sentiment mediation attorneys will commonly express and I can’t say it’s true with every case. Yet there are some cases where couples go from barely being in the same room with their ex to proactively negotiating and compromising to reach an agreement that puts their children first. It’s difficult not to feel some level of pride if you played even a small part in that evolution.

How does a transformation in two people occur during a divorce negotiation? It varies but at some point, one or both parties make a dramatic realization:

Yes, I’m angry and disappointed with my spouse for how things have gone with our marriage. I don’t want to be here and I want this to be over with. My current attitude is not getting us closer to an agreement. It’s definitely not helping our children. How can I make this better?

Many couples go into a divorce negotiation knowing exactly what they DON’T want. This can be based on previous experience or seeing others they know go through a bad divorce. You know the pact you make that you will never be that couple. Until you become that couple. Many divorcing couples have that watershed moment during the process and it changes everything.

Most couples will start a mediation with the best of intentions. While both parties may not have wanted the divorce, each realizes it’s the direction they are going. So, they agree to negotiate in good faith. Then we start to delve into the specifics of the divorce and it gets real. Things like:

  • Who stays in the family home? Or do we have to sell the family home?
  • Where do the kids go for holidays? Does that mean just the holiday itself? What about the night before?
  • What about summer vacations? Who goes where and when? Does it stay the same every year?
  • What about extracurricular activities? Who pays for what? What about transportation to and from those?

It’s a long list and the new reality is a lot of details need to be worked out. Where the growth and maturity comes in is when one of the spouses makes a concession that helps the other out. For example:

A divorcing couple has two children, both have an activity on Wednesday afternoons in different parts of town. The custodial parent can’t pick up both children without one of the kids having to wait for a long period of time. Doing so would require him/her to leave work early, something that’s frowned upon at his/her place of work. The ex volunteers to pick up one of the kids after that activity so his/her ex doesn’t have to leave work early. The ex agrees to do this for up to one year or until other arrangements are made.

Another example might a spouse wanting to stay in the family home even though he or she cannot afford to buy their ex out. This is not an unusual request for the custodial parent to make to lessen the impact on the children during this time of adjustment. The ex, wanting to minimize the impact on the kids, would like to work something out but needs the money from the sale of the house to get on with his/her life and find a place to live.

A solution for the above scenario is not always obvious. But it requires two people committed to compromise and flexibility to trade ideas and work something out because it will be best for the children.

I think what makes me feel most proud about these types of situations, aside from couples getting along well enough to talk, is their realization that they need each other. That sentiment goes beyond reaching an agreement. It’s a realization that they need each other to continue to co-parent their children for now and the foreseeable future. And that’s a powerful thing.


The call divorce lawyers dread

“___ introduced their new boy/girlfriend to the kids.”

Introducing a new significant other before a divorce is final can derail even the smoothest negotiation, whether litigation, mediation or collaborative. Fortunately, collaborative divorce negotiations and the team approach it employs have built-in mechanisms to address these kinds of situations. Namely, a divorce coach.

This video put out by the Massachusetts Collaborative Law Council illustrates how the divorce coach can act as a key intermediary and resolve disputes that seem beyond repair. In this case, what happens when one spouse introduces a new significant other to the children before the settlement is complete.

In the video, both spouses contact the divorce coach after the meeting to essentially tell their side of the story. The divorce coach sets up a meeting to listen to the concerns of both. At this juncture, being able to come to a settlement via collaborative divorce is very much up in the air.

The initial phone call and individual meetings with both spouses give both parties a chance to vent. Additionally, when the divorce coach says she will meet with the attorneys on this matter, it offers each some consolation that their side will be heard and action is being taken. This feeling alone starts the cooling down process for each as their initial anger is out of their system and the professionals will address the situation.

In the video, however, that’s not a clear-cut solution. Attorneys are professionals, but we are also people, too, who have had life experiences that have impacted our views. The video demonstrates how one attorney had her own view on this matter and it was based on personal experience. Much like the divorce coach did with the couple, she also talks it out with the attorney alone and then with the other attorney, then the three got together as a group. It was then the group came up with an approach to bring back to the couple.

In the video, both spouses have had a chance to cool down and are able to have a rational discussion. Though neither is thrilled about the other’s actions and reactions, the couple agrees to continue with the collaborative divorce negotiation.

Much of what’s involved in a divorce case of any kind is financial. Litigation generally follows formulas that have little or no room for negotiation. Collaborative divorce does offer flexibility with the financials. While each spouse may not get exactly what he/she wants, typically we can come up with a solution that both can live with. The real stumbling blocks for any type of divorce are often not of a financial nature but an emotional one.

Collaborative divorce attorneys receive special training to handle cases like the one in the video. Even with that training, the inclusion of a divorce coach is an incredibly valuable asset. For this example, there’s a chance that the result could have gone in another direction. The one attorney had a personal experience that had impacted her opinion. Would she have been able to get past that and help resolve this couple’s dispute? Maybe, maybe not. Yet having the neutral third-party professional, the divorce coach, as the central figure in all the discussions shined a light on the emotional element that was central to the discussions. Ultimately, it saved this divorce negotiation from going to court for litigation where things might have gotten very ugly.

Another important lesson divorcing spouses can glean from this video is how this interaction can set the tone for future communications between divorcing spouses about the children. Granted, they will probably not have the benefit of the divorce coach going forward. Yet they will have gone through an experience of disagreeing with their ex and being able to resolve it. That can be a building block for future issues that are bound to arise as they co-parent their children.

Do all cases go like this in real life? If only, but more than you might think. And it’s a very big reason why I chose to be a collaborative divorce attorney.


How collaborative divorce is better

The pretext to any collaborative divorce is that both parties basically agree and make a pledge to negotiate in good faith to reach a settlement that works for both parties. Integral to a collaborative divorce is a team approach, using a neutral coach and experts. When explaining the approach to a client recently, he asked, “couldn’t my attorney just figure it out with the other lawyer and then submit the agreement to the judge?”

The question surprised me since people usually come to my office for a collaborative divorce or mediation. Similarly, my response surprised him as well when I said, “yes”.

That’s right. The court model for divorce or litigation can be used in a similar fashion as a collaborative divorce. Both attorneys can negotiate on behalf of their clients and hammer out an agreement that is then submitted to the judge. And there are couples who might consider this approach, especially if they are not sure that they can or want to work directly with their spouse or that they want to put the effort into working with a team of experts that can be involved in a collaborative divorce. Yet it’s not a recommended path for a variety of reasons.

First, collaborative divorce attorneys and the team of experts involved have special training for the types of disputes that arise during a domestic settlement negotiation. This empowers them to diffuse sometimes contentious situations. As somebody who has been a divorce attorney for more than 30 years, even couples who agree on virtually everything and get along great run into bumps during the negotiation. Without trained experts, these bumps can escalate into impasses in the negotiation unless handled skillfully.  This can drag out the negotiation or, worse, put all the decision-making in the court’s hands. The collaborative team is specifically trained to expect and to diffuse these impasses.

Another key difference is flexibility. In the court model, matters that need resolution are in many ways part of a math formula: division of assets; child support; alimony; parenting schedules; etc. There’s little room for a negotiation that strays away from these formulas because everything is analyzed in comparison with “What do we think the judge will do?” Collaborative divorce is much different in this regard.

For example, let’s say one spouse wants to stay in the family home for the sake of the children and adjusting to the divorce. If that spouse cannot afford to buy the house from the ex, there is very little that can be done in the court model. The judge will order the family home sold with the profits divided equally by the couple. Collaborative divorce can offer negotiation options for special circumstances like these.

One possibility is that the couple comes to an agreement that allows said spouse to remain in the family for a certain period of time after the divorce and then either buys out her ex or sells the home. In a collaborative divorce, with the help of the financial experts as part of the collaborative team, the negotiation can provide financial scenarios/solutions where the spouse could remain in the home even though he/she can’t afford to (e.g. reduced alimony payments; greater share of the retirement assets to the spouse moving out of the family home, etc.).

Helping couples learn to communicate with each other as a divorced couple is another difference. This is a critical part of a collaborative divorce as it often helps eliminate return trips to court to settle disputes that may arise as ex-spouses co-parent. As much as couples want to reduce the cost of the divorce, if they don’t learn how to communicate with each other constructively chances are whatever savings are realized will probably be given back in attorney fees for future court dates to settle issues rather than talks things out without lawyers and outside the courtroom.

Perhaps the biggest difference between a collaborative divorce and a litigated divorce lies in the emotional part of a process. The parties to a collaborative divorce are assisted in understanding and articulating their positions and interests. The negotiation will be focused on the parties themselves creating a satisfactory resolution in the context of all of their needs and concerns. This is a radical departure from the litigation model where the lawyers do all of the talking and negotiating and the parties are passive (and sometimes absent) participants. In my experience, it can be empowering for a party to be an integral part in crafting the terms of their divorce.

A collaborative divorce team includes a divorce coach. Many coaches are mental health professionals who have undergone specialized training for clients’ emotional wellbeing both during the divorce negotiation and after the divorce. Not only does the coach notice trigger points during a divorce negotiation when a spouse might be losing their composure or worse, but they also help the team understand that an obstacle to settlement might be more about an emotional issue than a numbers issue.  Armed with that additional insight, the collaborative team can try to address that emotional issue as part of the negotiation.

Even in a collaborative divorce, the desire to divorce is not always mutual. Often the spouse who is reluctantly going along with the divorce feels a hurt they believe their soon-to-be ex does not. A collaborative divorce can provide the mechanism for his/her feelings to be heard and recognized. Often times this kind of sharing helps foster a conversation where both can share their feelings of hurt at the dissolution of the marriage. Such a scenario would be very difficult to come by in a litigation utilizing the courtroom model even with the most compassionate attorneys.

Does that mean collaborative divorce is better than litigation? It depends on who you ask. But if you’re looking for a divorce that doesn’t reduce several years of a marriage and the circumstances that are distinct to your family into a standard formula, collaborative divorce does offer choices and solutions.


More on why a neutral financial expert favors divorcing couples

Last month’s blog covered how working with a neutral financial expert as part of a collaborative divorce or mediation provides couples with the flexibility to craft an agreement to meet the current and immediate future needs of their family. This month’s blog offers a few more examples of why divorcing couples might want to go this route.

As a quick review, a neutral financial expert is a finance professional, often a CPA or a financial planner, who has also undergone training on issues particular to divorce and dispute resolution. So even for couples who have worked with a financial professional to prepare their taxes or help them make investment decisions during the marriage, it’s not the same as the neutral financial professional in divorce negotiations.

The benefit of the neutral financial expert really is one of the advantages of opting for collaborative divorce or mediation rather than litigation. In most litigation cases, the financial details usually follow a formula with essentially no room for negotiation. Working with a neutral financial expert as part of a collaborative divorce process or mediation offers flexibility that is often not available in litigation.

An example of this occurred during one of my recent collaborative divorces.  The issue at hand was taxes as it pertained to child support and alimony.

During the marriage, one spouse was the primary earner while the other stayed home with their child. In a traditional litigation, the earnings of the one spouse would have been entered in a standard formula for alimony and child support. Since child support is not tax deductible, the primary wage earner would have ended up in the 40 percent tax bracket.  That tax burden would then make it difficult for him to make ends meet after paying both child support and alimony.

Working with a neutral financial expert as part of a collaborative divorce, the couple had some flexibility on how to ease the tax burden. After much analysis and examining several options, the expert devised a strategy where the primary wage earner would pay more in alimony—which is tax deductible for him and earnings his spouse would have to declare—and less in child support. It was a “win-win.” The amount paid to the spouse was more than the child support and alimony formulas would have provided (even after taxes) but the cost to the wage earner was less after considering the tax benefits.   This provided more money for the care of the children and also freed up money for the wage earner for living expenses, retirement, etc.

While this description may sound fairly straightforward, the analysis required to make this work took the skills of a finance professional with specific training in this area. Yet I think you can see the benefit.

I’ve had many other cases where a neutral financial expert has been the reason for a successful outcome. One comes to mind regarding a divorcing couple that had an enormous amount of credit card debt. While the couple had several 401 (k) and IRA accounts for retirement, none of these accounts individually could pay off the credit card debt. Collectively, it was possible but would result in a 10 percent penalty for early withdrawal.

The financial expert assessed the situation. Noting that one of the spouses was over 59 years old and eligible to withdraw funds from the IRA without penalty, the financial expert devised a strategy where the older spouse withdrew funds to pay off the high-interest credit card debt without penalty and the younger spouse transferred funds from his IRA to the older spouse’s IRA after the divorce, without incurring taxes or penalties.  As a result, the financial expert was able to equitably allocate the retirement funds so that both had 50 percent of the total retirement funds after the credit card debt was paid. Most important of all, both could then enter their new lives without paying high interest on credit cards that would greatly impede their being able to cover basic living expenses.

As mentioned before, these types of arrangements would have been very difficult for the aforementioned couples to come up with on their own. Both involve complex budgets, expense analysis and tax projections, as well as exploring/creating a number of financial solutions for the couple to consider. This kind of negotiation required a specialist who not only possessed the expertise, but was a neutral expert working for both of the parties. And like the example cited in the previous blog, I feel confident in saying an agreement like this would be unlikely to occur without a neutral financial expert to run the tax analysis.