Divorce Mediation & Collaborative Divorce Articles

We hope you find our articles relevant and informative. If you have questions about divorce or any other family law matter, please contact Susan Lillis for a consultation or call (978) 356-2934 ext. 12.

Collaborative divorce has emotional benefits

You have probably heard divorce referred to as an emotional roller coaster or putting you through the wringer (at least emotionally). Yet I can say with certainty that collaborative divorce has many emotional benefits, definitely more than any other type of divorce.

The collaborative divorce process involves working with a team of experts. Many times that includes a divorce coach. Typically, this is a psychologist/dispute resolution expert. The divorce coach, to varying degrees, helps couples learn how to better communicate with each other.

For example, a divorce coach will meet with each individual and review the things that their spouse does to set them off. This can include body language, facial expressions, and other triggers. Conversely, the coach will ask each spouse what it is he/she does to set off their spouse. The coach will then help each develop a way to respond to their spouse to keep the negotiation productive.

The coach will also act as an additional set of eyes and ears for the collaborative divorce attorneys. If the divorce coach sees some of those triggers or any signs that either spouse losing his/her composure, they can call for a short break. Many times that can be enough to prevent any meltdowns.

Ultimately, the divorce coach teaches the couple how to communicate with each other. The lessons learned in the negotiation lay a foundation for their future relationship, which is absolutely critical for couples with children. Most couples leave a collaborative divorce with a certain level of confidence that, going forward, they can reasonably communicate with their ex.

Uncertainty/anxiety about the future is another emotion individuals face, particularly if you are not the primary earner. You wonder if you will be able to stay in the family home. If so, can you make the monthly mortgage payment and take care of the house? What about retirement? The list of questions goes on and on. This uncertainty actually plays to one of the more beneficial elements of a collaborative divorce: finances.

A panel of financial experts is typically a part of a collaborative divorce. This can include an accountant/tax preparer, financial planner, business attorney, etc. During the process of the negotiation, both parties disclose their finances. The team can then assess what a settlement will look like. The divorcing spouses will then have a very accurate and detailed report of how much they will have in the immediate future and towards retirement.

Knowing what you can afford (and what you can’t) can have a positive effect on each spouse. Now each knows what he/she has to work with and can begin to plan the next phase of their lives for themselves and the children.

This feeling of empowerment can be even more profound for the spouse who may not have been the primary earner.  Or the spouse who was not the person in charge of the family finances. During the collaborative divorce process, that spouse is now aware of everything (or should be) and is now the only one in charge of his/her finances. This can be a very frightening and liberating feeling.

Finally, an important part of collaborative divorce is learning to be an advocate for yourself. This is a byproduct of the very nature of this type of divorce. In litigation, much of your divorce is predetermined by the court. In collaborative divorce, you have the flexibility to negotiate and determine the terms of your divorce. That requires you to advocate for yourself. For some spouses, who were the more reactive or passive of the couple, this can be new territory. Yet those are often the people who benefit most from collaborative divorce.

Yes, it is difficult to write that anybody benefits from any kind of divorce. Perhaps a better way to put it is there can be a silver lining to a collaborative divorce. Sunny days are ahead after you get through the clouds. The lessons you learn while going through the process can only help make those days even brighter.

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The many layers of divorcing your business partner/spouse

It goes without saying the sting of divorce runs deep. For couples who are also business partners, it can present an even greater challenge as parting represents a change in your professional as well as personal life. Usually.

It may sound odd, but some divorcing couples stay in business even after the divorce. Some even want to remain in business together.

Of course, the most common occurrence when couples/business partners divorce is that one party buys the other out. Typically, that’s because one spouse has a more active role in the company (e.g. one spouse runs the business while the spouse works part-time and helps with administrative tasks).

A buy-out might not always be possible. That’s when a collaborative divorce approach comes in handy.

First and foremost, it offers flexibility and negotiation for a variety of options. Second, a collaborative divorce team includes more than attorneys but experts who can offer advice and solutions (e.g. financial experts, business brokers, etc.). That could include creating a payment plan for the spouse who wants to remain in the business but can’t afford to buy their spouse out. Such an arrangement might not be possible in litigation where the judge’s priority is to separate the parties and any marital assets as quickly as possible.

There are some cases where divorcing couples/business partners actually want to keep the business relationship intact. This can be for several reasons beyond one spouse being unable to buy the other out. Perhaps as business entity couples work far better together and splitting up would cost money and mean starting from scratch. Think of Sonny & Cher’s divorce in the 1970s.

Together, Sonny & Cher had a hit TV series and chart-topping hits. Divorced and as solo acts, both of their TV shows bombed. Some couples have successful businesses because of what each brings to the table (e.g. a restaurant where one spouse runs the staff while the other makes the best-selling gourmet muffins). The prospect of starting over again, essentially from scratch, can make some couples want to remain together as a business entity. This arrangement also can benefit from a collaborative divorce approach.

For example, one of the objectives of a collaborative divorce is to provide the parties with problem-solving skills and strategies for resolving conflicts that arise after the divorce is over.  Also, working with the collaborative divorce team, couples can negotiate an agreement with specific language that addresses possible landmines. One of those could be a timetable to evaluate the relationship and offer a potential buy-out if either party wants to opt out in the future. For example, a divorce agreement with a couple as business partners could give either partner the option to buy the other out after one year, two years, or some other predetermined timetable.

The agreement could also include terms of management and operation. For example, establishing a formula for determining salaries, or making both spouses 50-50 partners, with an agreed-upon third-party acting as an arbiter in the event of a disagreement on business decisions.

There are a number of scenarios where a divorcing couple could maintain a business partnership. With the right people, it can work. Yet being in business with your ex can present an enormous amount of challenges (e.g. what happens to their ownership share when a spouse remarries). In fact, it would not be unusual for a couple to enter a collaborative divorce negotiation with the intent on staying business partners only to find out, through the discussions, that things probably won’t work in the long run.

“It’s not personal, it’s just business” is a famous line from the first Godfather movie. When you are in business with your spouse, business will always be personal. A collaborative divorce negotiation can help many couples determine if the next step of staying in business together is the right one on a business and personal level and put in safeguards should the arrangement ultimately not work.

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How to convince your spouse on a collaborative divorce?

The voice inside my head says, “quickly”. That may sound a bit cold, but much can happen between the first conversation about getting a divorce you have with your spouse and the next one. And if you would prefer collaborative divorce, getting your spouse on board as soon as possible—especially before they retain an attorney—is paramount.

Why?

For starters, not all divorce attorneys practice collaborative divorce. Collaborative divorce is not even taught in law school. It’s a specialty acquired after you pass the bar. So if your spouse finds an attorney without that training and puts down a retainer, they may not be able to represent them in a collaborative divorce. That will probably play a factor in whether or not your spouse will go along with a collaborative divorce.

“The talk” varies by couple. It can be contentious, emotional, indifferent, or any number of things. It really is an individual thing. At some point during the discussion, you or your spouse will probably ask, “what now” or “how do we proceed?” If you know you would like a collaborative divorce, you should use that discussion of the next discussion as the chance to introduce collaborative divorce.

How do you bring up the topic? Good question. Brutal honesty is probably your best option. Admit you’re scared about going through a divorce and what it will do to your relationship and, if applicable, your family. Tell him/her you want to find a way to get through so that you’re protected and he/she is protected and that you don’t become bitter enemies. That’s when you bring up collaborative divorce.

The best way to bring it up is to mention you have done some research and heard about a type of divorce where you do not have to go to court. If he/she is interested, continue on with the benefits:

  • More control over the schedule and costs.
  • You speak for yourself, rather than an attorney speaking on your behalf.
  • You can speak to each other as part of the negotiation; it’s encouraged rather than discouraged
  • A team of neutral experts—accountants, financial planners, divorce coaches—to guide you through the process.
  • Proceedings take place in the privacy of a conference room rather than in public in a courtroom.
  • You have a say as to the terms of your divorce as opposed to litigation, which relies on formulas and the discretion of the judge.
  • Learning how to communicate better with each other as part of the process and building the foundation for future communications if you have children.

If your spouse seems willing to consider collaborative divorce, be ready to offer some resources to help them learn more before committing. There are a number of wonderful resources on my website.

Before you part, set a day and time to discuss again. Perhaps a week or two for them to do some research. Do not pressure or rush your spouse. But let them know you would like to continue the discussion and come to a resolution on how to proceed.

In my years of experience, couples are more likely to drag their feet on the next step than rush into anything. Still, if it’s a collaborative divorce you want, it’s a discussion to have sooner rather than later.

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Addressing the gray areas of a gray divorce

gray-divorceIn recent years, there has been an increase in divorces for couples over 50. Many of these couples have been married for two or more decades. While reasons for the increase in divorces from this demographic vary, it does reinforce one school of thought: the longer you are married, the more complicated the divorce.

That’s not a judgment on the parties involved. Just common sense. The longer you’re married, the more wealth you accrue, the more possessions, the more responsibilities, the more intangibles. And, frankly, the more reasons you have for choosing a collaborative divorce.

In a gray divorce, things may appear pretty straightforward. You own a home. The kids are probably grown and moved out of the house. There’s probably a retirement fund and perhaps a second home. Perhaps one spouse was the primary earner of the two and the other was in more of a supporting role. A divorce should be as simple as a 50-50 split of the assets and perhaps an alimony arrangement. Pretty formulaic, right? Something that could easily be handled in litigation, right?

I think you know the answer to that.

The gray areas of a gray divorce make negotiation in a collaborative divorce with neutral experts a preferred option.

What are some of those gray areas? Those can vary, but let’s start with the grown children. Perhaps they are grown and out of college. Yet due to excessive student loans, the kids live in the family home. In litigation, the grown children would not enter the discussion. Yet as part of collaborative divorce, they can be.

For example, maybe the negotiation includes discussion of one of the spouses remaining in the family home so the grown children can continue to live there while working off their student loans. Although it is unlikely that this would be a permanent arrangement, there can be a time parameter put on it.

Another example might be one of the spouses is a caretaker of an elderly parent or relative. That responsibility may have had an impact on his/her level of income. Or perhaps that elderly relative was put in an assisted living facility or nursing home. Part of the divorce negotiation could include how the divorce would impact that person.

In 2013, the alimony law in the state of Massachusetts changed. The assumption with the new law is that spousal support ends once the spouse paying alimony reaches full Social Security retirement age (currently age 67). In a gray divorce, the parties may be closed to 67 or even older.  A financial neutral will be able to help both parties to understand how they can pay their respective expenses after the divorce.

Lifestyle also becomes part of the discussion as part of a collaborative divorce. One spouse may have been the primary bread winner while the other stayed home and raised the family, compromising their earning power in the process. Both have become accustomed to a certain lifestyle and the financial discussion as part of the collaborative divorce can take sustaining that lifestyle into consideration.

Of course, the key component to any gray divorce is retirement funding. In some marriages, one spouse may not be aware of exactly what they have for retirement funds saved and where. This can also be a tricky matter if a pension is involved as well. Where one spouse has been the primary earner and the other spouse has a reduced earning capacity, the negotiation can be a little more involved than a 50-50 split down the middle.

For all these reasons and more, a gray divorce can greatly benefit from collaborative divorce. The intricacies of the household finances are but one area where couples can benefit from the advice of neutral professionals. Older divorcing couples can also benefit from a divorce coach, who is usually part of most collaborative divorce teams.

Ending a long marriage later in life comes with a variety of emotions, some of which can be a roadblock to coming to a resolution. The collaborative divorce approach can help keep parties focused on resolving differences to reach a settlement that’s acceptable to everyone.

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Collaborative divorce can save the family house

broken-houseIf that’s really what you want. For many divorcing couples, that’s what they think they want and it can make things a bit contentious. If it’s a divorce by litigation, it can lead to the court making the decision for you—usually that is to sell the home and split the proceeds. Collaborative divorce keeps the door open if you and your spouse disagree on who gets the house.

How? A collaborative divorce is a negotiation where both sides put everything on the table and explore possibilities. With regard to the family home, each spouse would need to consider:

  • Can I afford to buy out my spouse in order to keep the family home?
  • Can I afford to maintain the home after the buy out?

By having all your financial information on the table as part of the negotiation, both parties can address the feasibility of keeping the family home. For many divorce negotiations, this ends the “I want the house” argument.

With a team of experts, often including a divorce coach and a financial neutral, the negotiation can address the financial realities of keeping the home but also why keeping the family home is important to each party. It is not unusual for it to be an emotional reaction tied to not wanting to accept that the marriage is over and things will be changing—e.g. keeping the family home means something will stay the same. In some cases, just having an impartial third-party to talk to can make a spouse see the real reason for wanting the family home isn’t even about the home.

Of course, there are some very logical reasons for wanting to remain in the family home– not wanting to uproot school-age children being tops among those. It’s not at all unusual for many divorce negotiations to include language that the custodial parent will remain in the family home for a certain period of time to ease the transition for school-age children.

Temporary arrangements can come with a host of considerations as well. Who will pay for upkeep to the home or capital improvements? Is that to be split evenly or will it fall on the spouse remaining in the home? Continued joint ownership also carries tax implications as well as the practical question “Do you and your spouse get along well enough to essentially continue a business relationship—joint ownership of a home—for years to come?”

The beauty of a collaborative divorce negotiation is that it provides the flexibility to keep all options open. For example, I have a number of cases where the parties have agreed to jointly own the marital home for a short period of time, either because the market is soft at the time of the divorce, the kids are close to finishing school or there are grown children in the house who are looking for first jobs and need a place to live. There have even been collaborative divorce agreements that call for the couple to remain in the home but living in different parts (e.g. each takes a separate portion of the home). These types of arrangements can be complex. Still, it does reveal the flexibility a collaborative divorce has to offer.

This kind of flexibility is in stark contrast to litigation. Earlier in my career, in the 1980s, a common court ordered divorce judgment was for the wife to get the house and for the husband to get the retirement funds. As the housing market and the stock market have gone through a number of ups and downs, this is no longer a common (nor necessarily equitable) practice. Still, it does emphasize how collaborative divorce offers more than a black-or-white solution but many shades of gray. Today, if the parties cannot reach an agreement about what to do with the house, a court is likely to simply order it sold.

Perhaps most importantly, the process of collaborative divorce provides the resources and counseling for couples to think about the life they want after the settlement. For some, it makes them think about the real reason they want to keep the house. Many times in those cases, through discussion with the collaborative divorce team, it helps spouses realize that a clean break—though difficult–might be the best thing for all. The most important thing, however, is that the parties are the ones making the decision, not a complete stranger who happens to be a judge.

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Three things to best prepare for your divorce

I recently stumbled across a blog that pooled 48 divorce mediation experts about suggestions to help people best prepare to go through a divorce. Specifically, the author asked each for three things.  Nobody asked me, but having done this for more than 25 years, I have a few thoughts on areas where people going through a divorce can focus to make the process easier and make it one of growth.

Managing your emotions

In going through a divorce, you will experience any number of things. Sadness, anger, frustration, desperation, depression. The list could go on and on. Perhaps that’s why a few of the experts from the article advised viewing divorce mediation as simply a business transaction. That advice reminded me of the movie The Godfather (“it’s business, not personal.”). As anyone who has seen that movie knows, business was personal. Very personal.

When going through a divorce, it’s important that you be in touch with all the emotions that come with it. But do your best to not let those emotions debilitate you. Have a support system around to help you through it. That can be a parent, a friend, a counselor, the divorce coach if you happen to be using collaborative divorce, a pet, you name it.

One of the benefits of divorce mediation is that mediators are trained to notice when negotiations are getting heated or when emotions seem to be headed in the wrong direction. Calling for a simple 10-minute break can be all that’s needed for people to gather their thoughts and emotions.

The advice here is don’t deny you have emotions regarding your divorce. You clearly will. But allow yourself to experience those emotions outside the divorce negotiations as much as you possibly can.

Educating yourself on the process

Unless you have been through a divorce before or are an attorney, you are probably unfamiliar with the process. Learning as much as you can about the process can make it a little less nerve-wracking.

In Massachusetts for example, there is a very concrete list of things that must be addressed in every divorce agreement.  Learn what they are.  If that list does not address all of your concerns, explore other things that can be added to customize your Agreement.  In a collaborative divorce you will have an agenda before every meeting.  Take the time to review the agenda in advance so that you are ready to participate.

Supporting your own research, you have some great resources, starting with your attorney and if you are involved in a collaborative divorce , your coach. In the very first meeting with clients, I walk them through the process. I also try to provide additional resources where clients can get more information. And, of course, I make myself available by phone or e-mail should they have questions.

Knowing your finances

Most married couples are not 100 percent aware of all of their finances. In many households, one spouse will pay most or all of the bills. The other may be in charge of monitoring retirement funds. It is the very rare couple where each party knows everything they have for financial assets and how to access those assets.  Divorce changes all that.

Your finances are the most critical part of the divorce negotiation. You no longer have the luxury of not knowing. If you were not the one who paid the bills or managed the retirement accounts, your job as part of the divorce negotiation is to get up to speed on all your finances—mortgage payments, insurance, credit cards, piano lessons for the kids, etc.

An added part of collecting all this information is to review the financial statement prepared by your lawyer before it’s submitted to your spouse and his/her attorney and, ultimately, the court. Your attorney should be preparing drafts of your financial statement as well as other terms of your settlement. This is the time to raise comments and concerns, not on the steps of the courthouse.

So, those are the three things yours truly would recommend to best prepare for going through a divorce. The best part of these suggestions is that you have control over two of these items—learning the process and your finances. Managing your emotions may not be as easy. There may be some difficult moments before and after a meeting or proceeding, but if you have a good support team you should be able to work through them.

For some advice from the other divorce mediation experts, click here to read the blog article.

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How to talk to your spouse during collaborative divorce

cookie-trayThis may seem like an odd headline. Yet one of the beauties of a collaborative divorce is that many couples actually do learn how to talk to each other during this process. This does not happen by osmosis. It comes from working with a divorce coach prior to and during the negotiation.

In a more traditional divorce, attorneys may not want spouses talking during negotiations. In collaborative divorce, it’s very much to the benefit of the process if spouses can communicate with each other with and without attorneys present. The divorce coach as a conduit helps couples learn how to talk during the process and essentially sets up a structure for communications post-divorce.

Prior to negotiations, the divorce coach meets individually with each spouse. This session acts as a bit of a communication primer. For example, is there something you say or the way you say things that really sets your spouse off—and vice versa? Do you react in a certain way (e.g. facial expressions, body language) that takes conversations in a negative or unproductive direction?

The coach will also work with spouses on how to reframe their words to express his/her thoughts and feelings without being accusatory or escalating the tension level. For example, instead of saying things like, “You always… ___” a coach will work with a spouse to phrase it as, “I feel like this when you ___”.  This may not seem like a big deal, but it does help keep the person on the receiving end from getting defensive or as defensive.

Having a third-party who is aware of these triggers involved in the negotiation can make it much easier to avoid confrontations that can bog down the process. A coach who notices something can interject and recommend a break so that people can collect themselves.

The coach can also set up communications ground rules outside the negotiation. For example, many divorcing couples will use e-mail and texting as a form of communication during the process. While this can be a useful tool it can also create problems (e.g. one party e-mails or texts incessantly; another party is unresponsive). The coach can set up some guidelines to sidestep possible tensions.

For example, rather than e-mailing or texting multiple times a day regarding several issues, the guideline might be one party can only send one e-mail per day and the other spouse has 24 hours to respond. If he or she doesn’t, then the party who sent the text or e-mail can call or send a second e-mail or text.

With ground rules in place and the coach in place, divorcing couples can often dramatically improve their communication during the process and outside the attorney’s office. Inside the attorney’s office, we also have a secret weapon:

Food.

In my career, I can count on one hand the number collaborative divorce negotiations that did not have cookies, candies, fruits or some type of sustenance.  While this may seem like a courtesy, something you would do for guests, it is very much part of the communication process.

How? Think about it. Food, particularly desserts, are a natural way to take the conversation down a notch and in another direction of common interest. Very few people will just sit there silently and eat.

“Isn’t this good?”

“Did you try this?”

“I shouldn’t, but why not?”

“I’m going to pay for this later.”

These types of non-sequiturs can really diffuse tension, especially when you were just knee-deep in a discussion about dividing assets, visitation schedules, etc.

And if food works for a couple, it’s probably not a bad a thing to implement in your communications going forward.

When it comes to collaborative divorce, it really becomes a matter of what works best to reach an agreeable resolution. With the support of a coach and the rest of the collaborative team, spouses can and have learned how to effectively communicate to come to agreement and have a productive relationship going forward.

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Pre-nups: The key to a successful second marriage

That may sound like a strange thing for a divorce attorney to say. Yet I feel comfortable in saying that if more couples used mediation to create a prenuptial agreement prior to getting remarried, more second marriages might last.

According to HealthResearchFunding.org, between 67 and 80 percent of second marriages will end in divorce. That’s a staggering amount and we could theorize all day long about why. In my professional opinion, many second marriages fail because of the first marriage.

That does not mean if you’re planning to remarry that you’re still in love with your ex. It means that with divorce, particularly when children and financial assets are involved, comes certain commitments and obligations. Often times, people enter into a second marriage either without knowing or seriously considering what those commitments and obligations are at the time of the second marriage and what they will or might be in the future. This can create turmoil if not addressed prior to the second marriage. And that’s why I strongly encourage people who are marrying for a second time to consider mediating a pre-nuptial agreement with their spouse before entering into the marriage.

Before getting into the reasons for mediating an agreement rather than having attorneys draft something up, let’s discuss why you would want/need a prenuptial agreement.

First, the obvious. People entering into a second marriage are older and are more likely to have accrued assets. Some of those assets you may want to leave/save for your children from the first marriage. For sake of example, let’s say a vacation home. A pre-nuptial agreement for a second marriage might state that the vacation home will belong to the person who brought it into the marriage rather than being divided in the event of a divorce.  This would preserve the vacation home for the children of the first marriage.  The same could be true for a savings account that is intended to be applied to college expenses for the children of the first marriage.

People entering into a second marriage are also more likely to have obligations for alimony, child support, life insurance, and/or college expenses.  Although these can’t be changed by a prenuptial agreement, they might impact other financial arrangements between the parties.

A common reason for entering into a prenuptial agreement before any marriage is to protect a family business of one of the spouses. Many parents are afraid that transferring ownership of a business that they began to their children will create a risk of the business being divided up in a divorce.  Often they will insist that their child and future spouse sign a prenuptial agreement to prevent the ex from making a claim to the business should the marriage end in divorce. The same would hold true for second marriages.

Why mediate a prenuptial agreement?  Similar to mediating a divorce, pre-nuptial mediation requires both parties to prepare financial statements disclosing their income, assets and liabilities. Each party will express his and her expectation about what should happen with those assets and liabilities in the event of a divorce or when either party passes away.  The parties will also discuss what should happen to any assets acquired during the marriage as well as issues around future child support and or alimony if the marriage ends in divorce.

By disclosing financial information and their respective financial expectations, the parties will have a much clearer understanding of where each of them stands before entering into a second marriage.  I believe that this kind of detailed financial disclosure and discussion will go a long way towards getting the second marriage off on a good foot.  Although it is true that it is not necessary to mediate a prenuptial agreement in order to have this kind of disclosure and discussion, in my experience it seldom happens. Much like in divorce mediation, the mediator becomes the catalyst for the discussion.

Why not just let your lawyer write something up? Also like divorce mediation, I find that a mediated prenuptial agreement can be truly customized to the unique situation of the parties.  In the case of our vacation home example, perhaps the couple negotiates that if the marriage lasts a certain length of time—let’s says 10 or more years—that the vacation home then becomes a marital asset.

In another case that I had, one of the parties was giving up a job and moving to another state in order to get married.  In that instance most of the discussion was around the issue of alimony for the moving spouse if the marriage failed.  In other cases, such as a family business, the parties might choose to not address the issue of alimony at all.

When lawyers draft prenuptial agreements their primary goal is often to make sure that everyone keeps their own assets before, during and after the marriage.  That may not be the right approach for you.  Mediation will encourage you to think about and discuss what you are trying to accomplish.  That said, just like in divorce mediation, both parties should consult with an attorney and have their own attorney review any agreements prior to signing.

The true beauty of the prenuptial mediation is the air of transparency it brings. While the nature of the mediation may be finances, it truly forces couples to look at other issues that will be involved in the second marriage—e.g. the schedule of visitation of his/her/both children; future offspring and how that fits into wills and inheritances; any debt either party brings into the marriage; how the new family plans to manage their day-to-day finances.

By having these issues front and center, it lessens the likelihood of surprises during the marriage. Mediating a prenuptial agreement also diminishes the possibility of bad feelings that might be experienced by the prospective spouse receiving a completed pre-nup from his or her fiancé because they are both part of the discussion rather than one party dictating all the terms as would be the case with a pre nuptial that was not mediated.

Does that mean all it takes for a second marriage to last is a pre-nuptial agreement? If only. Yet it can slow down the process and force couples to lay all the cards on the table, which is usually a good thing—especially if it makes for a lasting second marriage.

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What you should know before starting your divorce

photo of man with attorneyHindsight might be 20-20. After a divorce, it can be downright telescopic. And that’s why it’s not uncommon for a divorced person to lament, “If I had only known that before my divorce.”  While you will learn much about the process while it’s underway, the reality is you can and should learn as much as you can about it before you set foot in your attorney’s office for that initial consultation.

When does that education start? That’s a good question and completely subjective. Are you merely contemplating divorce or is this something you and your spouse have discussed? In other words, do you need to be discreet with your information gathering? Fortunately, there are resources available that can be accessed privately to provide you with some insight even if you are just exploring the possibility.

One resource is The Divorce Center (www.thedivorcecenter.org). In addition to helpful information and articles on its site, the Divorce Center also hosts workshops. These workshops are not only about the process of getting a divorce, but some of the issues you will face as a divorced person (e.g. parenting with your ex).

If you are considering divorce mediation as a possibility, the Massachusetts Council on Family Mediation (http://www.mcfm.org) offers a wide range of information. It also includes a Find a Mediator tool if you are not sure how to begin. It’s important to note that the Massachusetts Council on Family Mediation provides certification to mediators in the state who have more than one hundred hours of experience.

For more information on collaborative divorce, you can visit the Massachusetts Collaborative Law Council website (http://www.massclc.org). Again, this is another organization where you can acquire information about collaborative divorce and offers tools for to finding a collaborative divorce attorney.

These sites should be able to provide you the information you need before seeing an attorney for your initial consultation.

Most divorce attorneys offer a free initial consultation. Depending on the attorney, that can be no charge for the first 30 minutes or first hour. You are unlikely to have an initial consultation for a longer time period than that at no charge. If the cost of the divorce is an issue—and in almost all cases it is—you really do want to be as informed as possible BEFORE your initial consultation to get the most out of that session.

Why?

Several decisions have to be made after that initial consultation. Some of those decisions are based on information. Some are based on how you and the attorney mesh and whether or not you think you might be able to work together. Both are important.

At the end of your initial consultation, you want resolution to several questions/issues:

  • Do you have a good sense of the process?
  • Do you feel the attorney was listening to you?
  • Do you feel comfortable with the attorney?
  • Was the attorney up front about fees?
  • Did the attorney give you a ballpark figure for total cost and explain ways to reduce costs?

Clearly, the money portion is important. Yet do not underestimate your comfort level as well. Does the attorney understand what’s important to you? Did you make that clear? Did you ask for referrals or do you know somebody who used that attorney?

At the end of the consultation and after some reflection, you may still not be sure about working with that attorney. While you may not be looking to spend more than you have to, it might be worth the money to pay for a second meeting. The money will be worth it if it makes the decision to or not work with that attorney easier.

Of course, the self-education does not stop once you hire an attorney. In many ways, that’s when the real learning starts. But if you do the prep work before selecting an attorney, you will be that much better off during the divorce proceedings.

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Divorce and the self-employed

Divorce and small business owners

Divorce and small business owners

Being self-employed has many advantages. No boss to report to, tax deductions, shorter commutes (in most cases), etc. Yet when it comes to divorce, being your own boss can get complicated—whether your spouse is part of your business or not. And that’s why collaborative divorce is often the best method of divorce for self-employed and the small business owner.

In its simplest form, a business is like any other marital asset. It has a certain value just like a piece of real estate. When a marriage comes to an end, property either goes to one party or the other or is sold with the proceeds divided. The trick then becomes putting a dollar value on the business. Unfortunately, when it’s a business, there are a lot of other questions that need to be answered. Those can include:

  • Is one spouse more a part of the business than the other (e.g. one spouse runs and owns the business and the other is more of a silent partner)?
  • If it’s jointly owned, will both spouses continue in the business after the divorce?
  • If only one spouse continues, how much will it cost to buy the other out?

There could be a number of variables to consider, but the primary charge is to find out how much the business is worth. For that, the divorcing couples retain a business evaluator to assess the value of the business. Please note this step only applies to privately held companies. Publicly held companies are much easier to put a value on as it’s simply a matter of tallying the amount of stock the couple own.

An important note: This step of valuing the business can add significantly to the time it takes to start divorce proceedings and come to a conclusion. Though there certainly are exceptions, in my experience, divorces that involve a small business can take at least three months longer than ones that do not.

So, why choose collaborative divorce if it’s only going to add time to the process? The simple answer is: reliance on neutral evaluators and flexibility.

As the name implies, collaborative divorce centers on an agreement in principle—to end the marriage—and the rest is about negotiating how to make that happen. A collaborative divorce is negotiated by the divorcing parties with the support of professional, neutral experts. In a collaborative divorce the parties agree that instead of each hiring their own business evaluator, which often results in the battle of the “hired guns,” the parties will hire a neutral evaluator who will consider both spouses’ interest and concerns and  value the business following best practices for appraisers. This reduces both expert fees and disputes significantly.   This enables divorcing spouses to come up with a settlement they can live with and create a foundation for the relationship they will have after the divorce.

Collaborative divorce, whether it involves small business or not, does not follow a cookie-cutter approach to reaching a settlement. It invites creative resolutions and that flexibility is extremely valuable when it comes to dissolving a marriage that involves a small business under any number of scenarios. As an example:

  • One spouse owns a small business or is self-employed; the other spouse has minimal to zero involvement in the business. The business owner wants to continue the business after the divorce. Does that mean the business owner spouse has to pay his/her spouse 50 percent of the value of the business to keep sole ownership? In some cases, yes.  Or, the non business owner spouse may receive other marital assets that have the same value (e.g. maybe the other spouse keeps the family home).  Another option might be a buy out over time, or a partial buy out with the non owner spouse keeping a share of the company in the future.
  • Both spouses work in the business (e.g. a medical practice). While some couples have actually stayed in business together after a divorce, it is not always the best scenario. Still, if that makes the most sense given the parties past business practice, part of the negotiation can involve their working relationship going forward and guidelines that both agree to follow.
  • Both spouses work in the business but agree that it’s in their mutual interest not to work together. If a buyout is not an option, the couple can negotiate any number of alternative business arrangements (e.g. one spouse takes over the business while other spouse maintains a minority ownership share or they divide the business clients between them and create two new businesses).

Of course, these are just a few generic examples. In general, no two divorces are exactly alike and that’s even truer if ownership of a small business is involved. Still, if divorcing couples can agree in general about the dissolution of the marriage, collaborative divorce provides the best opportunity to come to a resolution both sides can live with.

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