Divorce Mediation & Collaborative Divorce Articles

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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.


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.


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.


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.


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.


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:


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.


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.


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.


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.


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.


Stay away from friendly divorce advice

photo of divorce advice

Divorce advice from a friend can do more harm than good.

The decision to divorce is not one you make in a vacuum. Most people who make the decision to seek a divorce have some sort of confidant—be it family member or friend—as a sounding board and source of support. It’s when that support turns into advice, particularly if that friend or family member has gone through a divorce, that things can get dicey.

Why? For starters, no two divorces are the same.

Let me repeat that. No two divorces are the same.

So when you have a friend or loved one who starts a sentence with“I went through  this in my divorce” you have to take it with a grain of salt. Even in a scenario where you have two couples who make the exact same amount of money, live in a house with the same approximate value, have the same net worth and even the same number of kids and pets, the two divorces will be different.

People are individuals and will view things differently than you do. For example, your divorced friend/family member may have cherished his/her house and felt very strongly about not uprooting the kids. You may feel taking care of the house by yourself to be more than you can manage and are open to a scenario where your spouse gets the house.

Of course, much of the advice you receive from divorce family or friends will center on the outcome of their divorce and regrets they have:

“We alternate years with the kids on (this holiday), I wish we had done ___.”

“We sold the house. I wish I had held onto it.”

“Don’t let him/her short change you on ____.”

You get the idea. And as supportive as these friends and family members are trying to be—they genuinely don’t want what happened to them to happen to you—they are truly doing you a disservice and, frankly, interfering with the negotiation of a settlement by filling your head with their issues instead of focusing on your own.

Divorce is not pleasant but it does force you to decide what is important to you so that you can proceed to negotiate. The process makes you do something that many people don’t do often enough—look into the future to try and really see the life you imagine. As much as you may have in common with the divorced friend/family member, it’s probably a safe assumption that you have a different vision of your life.

Of course, you may have some of the same concerns brought up by your support circle. That’s fine. If it concerns you, run it by your attorney. Once you have the information from the professional who does this day and day out, you might have a different perspective on the issue.

In some cases, the friend/family member acts as more of a decision-maker (e.g. a parent). It’s not an ideal scenario for a divorce negotiation but if one of the divorcing spouses bases his/her decisions on what the decision-maker thinks, it’s not unheard of to have that person meet with his or her child’s attorney. Professionally speaking it’s one thing to give the decision maker some time to voice his or her concerns but the client will have to make and live with any decision reached.

Your support circle does play an important part in your decision to divorce and the aftermath in putting the pieces back together. The attorney you choose is the bridge from the initial decision to your life afterwards. That’s why finding an attorney who has strong credentials and you are comfortable with is paramount.

Your attorney should be part of your support circle along with your family and friends. This provides you with not only somebody who has your best interest at heart, but someone with the experience and capabilities to ensure your best interests are met.


Communication and divorce mediation

image for divorce mediationMany marriages break down because of a lack of communication or poor communication. So if a marriage can’t last due to bad communication, how can you expect those same two people to sit in a room and come to an agreement in divorce mediation? Does a neutral third-party mediator make that big of a difference?

Yes, it does.

How a divorce mediator makes a difference

Think of any argument you may have had. Would a third person in the room have changed the dynamic, perhaps making the discussion less volatile? Probably. With a divorce mediator, you have a neutral third-party who is a trained negotiator with specific credentials. Add to those variables the fact that both you and your spouse are there with a shared goal in mind—to reach a fair settlement to end the marriage—and many of the communication obstacles experienced during your marriage are neutralized.

Those elements lay the foundation for negotiation, yet the potential to fall back into bad communication patterns exists. That’s where the skill of the mediator comes in. It’s his/her job to direct the negotiation from positional—e.g. “I want the children 50 percent of the time—to interest-based—e.g. “I want to be a good parent. If I spend less time with the kids, I’m worried they won’t like me as much and eventually won’t want to come to my house at all.”

The difference in positional versus interest-based dictates the tone of the negotiation. Positional essentially paints one party into the corner—e.g. I will only be happy/agree if I have the children exactly 50 percent of the time. Interest based—e.g. I want to have a quality relationship with my children and to be part of their lives on a regular and consistent basis—opens the door to numerous possibilities during the negotiation. For example, if exactly 50 percent does not make sense either because of the children’s or the parent’s schedules, perhaps the settlement could include additional parenting time during the week or a different schedule during summer break or during winter vacations. Or both.

That’s just one example. But the mediator can refocus the negotiation by finding out what’s important to both parties and using that as the basis of the discussion and coming up with solutions.

Besides the focus, the mediator seeks to diffuse old communication habits that circumvent discussion. For example, the parties may trigger reactions from each other just by their body language.  One person may roll his or her eyes when their spouse says something not to their liking. The mediator, as the quasi communication coach, can acknowledge the eye roll but try to convert it into a meaningful discussion.  For example, “You don’t seem to be receptive to that suggestion, can you explain why?”

Another way the mediator reads body language is to assess when a heated conversation is productive and when it is not. In a one-on-one discussion/argument during their marriage, a couple might continue to go at it even when the body language of one person is clearly not responsive. The neutral, third-party mediator can read the body language and call for a break if necessary. In 20-plus years as a mediator, it’s amazing to see how stepping away from the negotiating table and collecting your thoughts can refocus the discussion.

Another common communication trigger is when discussion sounds more like accusation.  For example:

“You never listen to what I say.”

While that may or may not be true, the accusatory nature of the statement is likely to put the other person on the defensive. A mediator might guide the spouse who made the statement to instead say something like this:

“I feel like you never listen to me.”

Rephrasing that statement gives ownership to the person who said it instead of putting it on the lap of their spouse to refute. It then becomes the feelings of the spouse who said it. It may seem like a small thing, but it can prevent stalls in communication and a “he said/she said” argument.

The mediator is the main reason why couples who could not communicate during their marriage find a way to do so during a divorce negotiation. Yet the intent of the couple divorcing is a factor as well. After all, most divorcing spouses enter into mediation because they are looking for a less contentious and cost- effective way to get divorced. By starting essentially on the same page, it creates a better platform to begin the negotiation.

So, not only is it possible for couples who could not communicate well during their marriage to do so in negotiating a divorce, but many couples leave mediation with a better understanding of how to communicate with each other going forward. Frankly, the tools and the communication skills divorcing couples develop during this process could save thousands of dollars in future legal fees as exes can now work things out without a trip to court.