Beginning in January 2008, and roughly monthly thereafter, our web site has a “Divorce Tip of the Month.” Below are prior months'
“Divorce Tip of the Month.” Additional discussion on tips can
sometimes be found in the Divorce Law Blog
of J. Mark Weiss.
A divorce or the end of a relationship can be stressful and challenging. It is difficult for the most grounded of people. It is easy to lose the perspective that divorce is a life transition and that you, your spouse, and your children will have a complete yet different future. Because of the normal emotions, most people are not at their “best” when seeking a divorce. It can be very helpful to have good professional support to help you become grounded, to help you see problems from different perspectives, and to help ensure that your decisions are in harmony with your highest long-term priorities and goals. A mental health therapist can provide that support and help keep you grounded during your divorce. There are many excellent therapists in the Greater Seattle area. More and more healthy and normal people who divorce have experienced the enormous benefits that good therapy can provide during this transition, thereby improving both the experience of their divorce and their future.
There are many
parts to a divorce. This month's divorce tip is
about the important financial part to a divorce. There are four
primary financial parts in a divorce:
property and debt division; spousal maintenance
(alimony); child support; and professional fees
(transaction costs). The components can be interdependent. The property
division may affect spousal maintenance and child support; spousal maintenance
may affect the
property division and child support; and child support
may affect spousal maintenance and even sometimes the property
division. Financial decisions that are made during a divorce may
well have tax consequences (now or later), and the tax
rules can be complicated. Different
types of property have different after-tax values. In
Washington, there is no formula for property division or
spousal maintenance amount and duration; there are
worksheets for child support, but they only yield a
presumptive amount from which there may be a
“deviation.” Generally, the goal in a divorce is to ensure that the overall outcome
will be as fair to everyone as circumstances will
permit, including the obligation to support children. The
financial part of a divorce is very important, and will affect your future and your family's future. Be
sure to get good financial and tax advice, and take your
time to carefully consider your options and the various
ways to accomplish your financial goals before making any
final decision. In a collaborative divorce, be sure that your team includes a neutral financial specialist, who can provide you and your spouse with
careful financial analysis and education.
With as many as 50% of first marriages ending in
divorce, there are many different procedures available
to get you to your divorce decree. They range from
do-it-yourself paperwork to a full-press court battle,
with many options in-between. Because a divorce represents
the end of the dream of the marriage, there is a natural grieving process
that accompanies divorce. Psychologist Elisabeth Kubler-Ross
identified 5 stages to grieving: Denial, Anger,
Bargaining, Depression, and Acceptance. Not everyone
goes through these stages in a divorce, and it is possible
to go back and forth between stages, but the general
progression is normal and natural. Usually, each spouse
goes through these grief stages of divorce at their own
time schedule. While in the middle of the grieving
process, each part can seem overwhelming. However, it
each stage is temporary and should eventually lead to
acceptance unless you allow yourself to stay stuck in
one of the stages. When thinking about your situation,
and your spouse, remember that each of you is going
through a grieving process, which is often also
accompanied by a fear of an unknown future. When
choosing the procedure that will get you to the divorce
decree, consider which stage you may be in, and which
stage your spouse may be in. The anger, denial, or
depression that you or your spouse may feel today will
likely be gone in the future. Yet, choosing the wrong
divorce procedures made in a natural but transitional
moment of grief can be long-lasting. Take your time to
choose the process that is best for you and your family.
A divorce lawyer who is familiar with this and the other
normal and expectable emotional processing which is part
of a divorce transition may be able to better guide you through
your divorce. Collaborative divorce is a process that may
allow you some more time to process the stages of grief.
One
of the inherent realities of divorce is that it is
generally necessary to separate one household into two
households. If your goal is for both spouses to own
their own separate residences after divorce, or if the
divorce settlement involves a cash-out that must be
funded by refinancing a residence, then it may be
beneficial to finalize your divorce settlement before
filing any papers with the court. Once you file a
petition for dissolution of marriage (the document that
starts the divorce), the existence of the divorce
becomes a public record. To the surprise of many
divorcing couples, that public record can interfere with
the ability to get financing. It therefore pays to take
care to structure your divorce process so it does not
interfere with your settlement plans. As a public
record, any pending divorce will appear in your credit
report. Because a pending divorce means that your future
income and assets are yet to be determined as part of
the divorce process, many mortgage lenders hesitate
lending money to divorcing couples. In other words,
mortgages may be unavailable or more expensive once your
divorce is filed with the court. In order to both
divorce and obtain refinancing or new mortgage
financing, and to avoid unnecessary disappointment, it
is usually beneficial to refinance before filing a
divorce petition, or after you have reached your final
settlement. (The final divorce settlement exists when it
is in a binding, written document that is enforceable in
your State.) By carefully managing the timing of the
filing of the divorce petition, you and/or your spouse
may both be able to qualify for financing/re-financing
to make your divorce settlement a reality. It is often
useful to consult early with a mortgage specialist to
determine what is and what is not possible in your
divorce settlement. Other considerations may affect this
decision, and it is best to consult with a qualified
divorce lawyer if you are in doubt. In the collaborative
divorce process, it is common to strategically time the
filing of the divorce petition with the court to
maximize the benefits, and to engage in careful
financial and mortgage planning, designed to maximize
the economic benefits available to both spouses after
their divorce. While the degree of planning may not
always be possible in all processes, the timing of
filing of the divorce petition is always an important
consideration.
Perhaps the last thing many people want to have to think
about when they divorce is taxes. Yet, there can be significant tax
ramifications resulting from a divorce. Good divorce planning should therefore
also include tax planning. A divorce will almost certainly affect your taxes in
several respects, including your tax bill as well as payroll withholding and/or
estimated taxes. Different tax tables apply to unmarried persons instead of
married persons, selected based on their marital status on December 31.
Additionally, persons with different incomes may be in different tax
brackets—if, after the divorce, the divorcing spouses are in different income
tax brackets, which can affect budgets and cash flow. Add to this that spousal
maintenance (alimony) is usually tax-deductible to the paying spouse and treated
as income to the recipient, so long as certain rules are followed. If the rules
are not followed as part of the divorce, the tax-effect of the alimony as part
of the divorce settlement may be different. However, child support and property
division normally have no direct income tax effect. An important consideration
is that different types of property come with different tax considerations that
may affect their economic value, and which may affect how you view your divorce
settlement. For example, property with a low cost basis (purchase price plus
allowed costs of improvements) may come with a future tax bill, which may affect
its value. Similarly, retirement plans, IRAs, and similar tax-deferred assets
come with future tax obligations that may affect how you view their values. Some
types of property, such as various types of options, can have very complicated
tax considerations that should be considered in a divorce. Finally, head of
household status and dependency exemptions may affect each spouse’s finances
following a divorce. Many of the variables can be considered and addressed in
your divorce, so that you and your spouse can take maximum benefit of the
provisions of the tax laws. Divorce tax planning can therefore be an extremely
important part—though a sometimes overlooked—part of the divorce process.
Divorce can be accompanied by financial challenges. Decisions and choices that you and your spouse make during the divorce process can make those challenges easier or more difficult. Here are three common situations where decisions can have profound impacts on future finances:
1. If purchasing or refinancing a residence for either spouse may be part of your divorce, it may be wise to delay filing the divorce with the court, which may have the unintended consequence of making mortgage financing unavailable. If possible, the better choice will often be to reach agreements before filing with the court.
2. Unnecessarily using court procedures can add enormous expense to your divorce, including “motions” and formal “discovery.” Lawyers will often advise their clients to file motions with the court; when necessary, these can be critically important and in some situations even life-saving. However, while useful tools, motions tend to be overused, can be very costly and risky in terms of immediate outcome, and can adversely affect the ability to reach a cost-effective settlement in the future. Motions and formal discovery can conspire to make a divorce even more financially challenging than it otherwise would be. Reaching agreement on interim points, and voluntarily exchanging information is nearly always less expensive than using the more formal court procedures.
3. Declining to get good financial and legal advice can be extremely costly. The financial repercussions of divorce can be significant, and good advice will more than pay for itself. In getting good advice, it may be best to seek advice from professionals whose financial interests are consistent with your own interests. For example, it may be worth hiring a financial advisor only for divorce planning with no prospect of selling financial products. While such financial advisors will charge a fee, their focus will be solely on providing you good advice, rather than selling product. Similarly, if you wish to seek a settlement instead of a litigated outcome, you may wish to consider hiring a lawyer who will not go to court and who specializes in settlements. If you need a litigated outcome, it makes sense to hire an attorney who is known to be effective at such outcomes without expensive fanfare. All attorneys are required to work in their clients' best interests, but there is a wide range of talents, skill sets, and preferences among attorneys, similar to other professionals.
Getting a divorce settlement means that you and your
spouse have reached agreement on the terms of your
divorce. Typically, the terms might include property,
debt, parenting plan, child support and spousal
maintenance (alimony) issues. There are a number of
methods by which you and your spouse may arrive at an
agreement, but every method involves at least some
negotiation of the issues in your case. Over the last
few decades, a body of scholarship, supported by
practiced, has developed on negotiations. As a starting
point, most negotiation experts recommend that you
develop your BATNA – your Best Alternative
To a Negotiated Agreement – before
seriously negotiating your divorce. Your BATNA needs to
be viable, honest, and realistic, and include all
advantages and disadvantages. Your BATNA provides you
with information against which you have the opportunity
to measure any settlement alternative. Therefore,
developing your BATNA takes some work, because it should
be based on good information, including financial
information and legal advice from your attorney. In a
divorce, your BATNA might be to go to a settlement
conference, or to seek a ruling from an arbitrator or
the court. In addition to developing your own BATNA, it
is worth spending time analyzing your spouse’s likely
BATNA. A common mistake is to overestimate how good your
BATNA may be. When developing your BATNA, keep in mind
that divorce lawyers wish to please their clients, and
can tend to be overconfident in predicting possible
outcomes, and overestimate their own litigation skills
and underestimate the other divorce lawyer's skills.
Another common mistake is to inaccurately estimate your
spouse’s BATNA. When developing a realistic BATNA in
your divorce for yourself and your spouse, be sure to
consider all the costs, including the delay, the risks,
and the impact on your relationships. If you have
children, what will the impact be on the children? If
you want to proceed through your divorce with integrity,
how will your BATNA affect your sense of integrity? In
the end, all this work will likely reap rewards. Having
a realistic and viable BATNA can provide great
confidence in your divorce negotiations, and can help
you and your spouse arrive at a good divorce settlement.
Divorce can be a very uncomfortable and anxiety-laden time in life. Because of the normal stress and discomfort that usually accompanies divorce, it can be tempting to try to reach a final decisions on important questions as quickly as possible.
Tempting as it may be, rushing into a divorce settlement
is often a mistake. Especially if your divorce follows a long-term marriage, or if there are significant income disparities or other special circumstances in your divorce, a hasty settlement will often result in a bad decisions
for your future. Worse, it is often not possible to revisit settlement decisions made during a divorce; therefore, making good decisions right up front is important. The decisions you will make during your divorce can affect you the rest of your life, yet you are asked to make these decisions during
one of the stressful periods in your life.
Most divorce lawyers advise that several steps are required to make a good decision in a divorce settlement. First, ensure that you have the information you need to make a good settlement decision. This information includes a full exchange of all factual information between you and your spouse (such as all property, income, debt, etc.), getting financial
information to help you gain clarity about your financial
circumstances from the marriage and what in fact exists
for your options for your divorce, and getting other
information that may be relevant to your divorce
settlement. Second, get legal advice from a divorce attorney, and financial advice from a financial professional. In a collaborative divorce, that type of advice is normally included as part of the structure.
The financial and legal advice will help you understand
the implications of your decisions in your divorce, and
bring information to your attention that you otherwise
will likely not have. Third, do not start negotiating your divorce settlement until you understand
both the legal and financial implications of your decisions, which means having the facts and understanding the effects of different alternatives
for your divorce.
Divorcing couples who take the time to get good information and financial and legal advice are often surprised about the many things they have not considered, and are usually pleased to have the additional information so they can make better decisions for themselves. Often, this includes
divorce settlement options they have not previously considered. Taking the extra time to consider the alternatives also give you the opportunity to better think through your decisions, rather than having
some of your most important and lasting decisions made
primarily to reduce short-term anxiety, but at long-term
cost. While going fast during your divorce may be tempting, going slower can often
lead to a faster divorce in the end, by ensuring that you have analyzed the decisions in your divorce methodically and thoroughly, have avoided legal and other missteps, and have made the best decisions for your circumstances so your future is more secure.
Getting good advice for a divorce or family law matter
can be difficult. There is no shortage of bad advice. It
seems that almost everyone has been divorced, knows
someone who has been divorced, or believes they
understand divorce. This is even so for lawyers. In the
old days, lawyers with general practices often handled
divorces, along with wills, real estate, business, and
other matters. In the last 50 years, divorce law has
become much more complicated, and new options have
become available. As a result, well-meaning people,
lawyers and non-lawyers alike, can give bad advice to
people going through divorce. Although lawyers who
handle divorces and family law matters cannot call
themselves “specialists” in Washington, divorce is truly
an area of the law where both experience and specialized
training can make a big difference. However, finding a
lawyer with experience, training, and skill in divorce
law is not enough. The divorce lawyer also should be
someone who is skilled and diligent, and who can
accurately advise you about the divorce processes that
you are considering. Divorce lawyers tend to fall into a
different categories. Some divorce lawyers prefer to
litigate cases, others prefer to settle cases after
preparing for trial (perhaps in what they may refer to
as a “mediation,” but what is more accurately described
as a settlement conference), and others prefer the
Collaborative Law process, and others prefer true
mediation (parties only). Nearly all lawyers are trained
in litigation and can provide advice about the
litigation process; however, lawyers who have experience
in litigation can provide the best advice about
litigation. Only lawyers who are trained in the
Collaborative Law process have the necessary background
to provide advice about a Collaborative Divorce; most
litigation attorneys do not have Collaborative Law
training or knowledge, and therefore cannot give more
than superficial, and often inaccurate, advice about the
Collaborative divorce process. To get the best legal
advice for your divorce, it is important to get advice
from lawyers who understand both the substantive area of
the law (divorce and family law), as well as the
process(es) that you are considering. This means a
lawyer with the education, experience, and skill in
divorce and family law and the available processes.
Most divorcing couple have the goal to negotiate a
divorce settlement (with or without attorneys), and do
not want a Judge or Arbitrator to make some of the most
important decisions in their lives. Many find that
difficult, often because divorce inherently raises
fears. To be able to successfully reach the best
possible resolution, both spouses need to work hard to
create a safe environment for divorce negotiations.
Creating that safety for divorce negotiations is an
important goal of your attorneys in the Collaborative
Divorce process. A divorce settlement is nothing more
than a negotiated divorce agreement. To reach any
agreement, all parties must be able and willing to
negotiate to a mutually acceptable outcome. Negotiation
to an optimal outcome for your divorce requires that
everyone involved in the divorce negotiations feel safe
enough to negotiate. Unlike a commercial negotiation, it
is normal to have fears in a divorce. Additionally,
divorcing couples will have a history between them. In a
divorce, two intimates become individuals again—they
become de-coupled. Safety in a divorce negotiation
includes not only physical safety, but emotional safety.
Building safety is a process that takes effort and time,
as boundaries are restored. Your Collaborative Divorce
lawyer and team members will be able to provide you with
specifics on how to build safety for your situation.
Some common ways to help build safety your divorce
include: allowing your spouse to speak without
interruption, especially during the divorce
negotiations; keeping your spouse informed about actions
during the pendency of the divorce; remembering that
each of you have your own opinions, and not trying to
convince your spouse that s/he should have the same
opinions (whether about the marriage, the divorce, or
property division, child custody, child support, etc.);
speaking courteously and respectfully during and
in-between divorce negotiations; and respecting other
boundaries with your spouse. In a Collaborative Divorce,
your attorneys will normally include agreements on these
and other behaviors during your divorce to build towards
safety so divorce settlement negotiations can proceed in
an effectively. By creating safety for your spouse in
your divorce, you can help yourself reach your goal of a
negotiated divorce settlement.
The holiday season can be stressful for families. Each
year in January, most divorce attorneys see an uptick in
the number of couples who seek a divorce. Divorce
attorneys also often get calls from clients over the
holidays, usually related to custody and visitation
(parenting plan) questions. Whether you are thinking
about getting a divorce or have divorced, try to
remember that this is a time of year where there can be
additional expectations and stressors, and this can
unintentionally spill over to children. How you behave
before, during, and after your divorce will directly
affect your children. You and your spouse may divorce
each other, but you will never divorce your children.
Research shows that exposure to acrimony between parents
and irregular contact with both parents is harmful to
children. In a divorce, it can be challenging to avoid
either acrimony or irregular contact, yet that is
important. Instead of thinking of a divorce as war,
think of divorce as a transition; you can choose a
divorce where your adult spousal relationship ends, but
your parenting relationship—your roles as “mother”
and “father” actually improves and strengthens during
and after the divorce.
Regardless of what your divorce decree says (or may say)
about custody, visitation, parenting, child support,
spousal maintenance or alimony, or other legal issues,
none of these issues are the concern of your children.
Most divorce lawyers and counselors advise their clients
to keep children away from the issues in divorce. Some
ways that divorcing and divorced parents can turn adult
concerns into children's concerns include: exhibiting
discontent with your spouse or former spouse in front of
children; speaking with children about legal matters in
your divorce; talking with children about your or your
spouse's divorce attorneys; mentioning to children that
child support or spousal maintenance is past due or is a
hardship; blaming the other parent for what is or is not
allowed. All of these behaviors tend to place the
children in the middle of the divorce and will likely be
detrimental to them. Children of divorce can also try to
exploit acrimony between their parents; for that reason,
try to avoid drawing negative inferences about your
ex-spouse solely on what children say. Instead, contact
your ex-spouse to find out his or her perspective.
Getting a divorce does not mean you and your ex-spouse
need to become bad parents. Instead, a divorce can be an
opportunity to re-commit towards your children and to
become better parents. There are many resources
available to help divorcing couples transform their
relationship from a marriage into parenting co-partners.
Divorce lawyers know firsthand the difficulty of
financially separating couples. Divorce usually involves
separating one household into two households. Even
during good economic times, it costs more to run two
households than one household. During difficult economic
times, the financial decisions during divorce can be
more difficult. Most divorce attorneys see more people
separating and seeking divorce when stress is higher,
including economic stress. Real estate, investments, and
retirement may be worth less than in the past, and debt
may seem higher. Job security may be less. When times
are tough, it is often tempting to try to “aggressively
fight” for what seems as the best economic divorce
settlement, including child support, spousal maintenance
(alimony), and property division. Being overly
aggressive during your divorce may not be the best
strategy. Paradoxically, being overly aggressive
during divorce can not only be much more expensive, but can also have an
adverse impact on your future after your divorce.
Regardless of how aggressive or passive you may be
during your divorce process (whether mediation,
negotiation, Collaborative Law, adversarial negotiation,
or litigation), there is nothing you or your spouse can
do to change the past that led to the divorce decision, and nothing you and your spouse
can do to change the facts that exist in the present
moment. All you can do is to act in ways that may have
an effect on your future during and after your divorce.
Your and your spouse's actions will have negative,
neutral, or positive effects on your post-divorce lives.
The challenge lies in choosing actions and behaviors
that are neutral and positive, and to sidestep negative
and counterproductive behaviors divorce. Examples of
negative or counterproductive behaviors in divorce,
could be to give up on yourself, or to be unnecessarily
aggressive. While there may be times when aggressive or
passive behavior is the least destructive, the better
approach during divorce is generally to become clear on
your economic and other needs and interests, and then
seek to partner with your spouse to meet your needs and
interests. Doing so in a way that is healthy for both,
so you can form separate households given the current
real economic circumstances is often the best way to
proceed. Having skilled guidance to facilitate this
divorce transition can make an enormous difference, and
getting that guidance early can be economically and
emotionally beneficial. Skilled mediation or
Collaborative Divorce law attorneys can make a great
difference in the quality of the outcome of your
divorce, even in difficult economic times such as these.
When most people decide to divorce, they know that their after-divorce future will be different. Not only will they no longer be married after their divorce, but their finances will likely be different. If they have children, their divorce attorney will inform them that parenting plan (custody and visitation) and child support decisions will need to be made as part of the divorce. At that time—and indeed through the divorce process—the unknown outcome can and will be uncertain. Except for the most unusual circumstances, no divorce lawyer will be able to accurately predict what the outcome will be. Because the future after divorce is unknown, it is important to try to determine as early as possible what your most important goals for after your divorce are going to be, because those goals will affect your decisions and conduct during your divorce. It can be a challenging task to look past the present while in the crisis of the imminent divorce, and to see goals in terms that go beyond coping or survival. Yet, as painful as divorce may be, divorce is in many ways turning to a new chapter the book of your life. The more you can picture or describe what the next chapter should look like, the more likely you are to find the chapter that you describe. You and your divorce lawyer can work together towards the future that you seek. In a divorce, it can be tempting to prove you were right or your spouse was wrong for various things; is a future of continuing to try to prove that the post-divorce chapter of your life that you want to live? Is the future life you want to live filled with divorce litigation and ongoing meetings with your divorce lawyers, or is it something else? If you cannot imagine what life after your divorce might be, perhaps the next chapter is one of inquiry, to gain clarity about what life after your divorce might be. You might seek the assistance of a trusted friend, a mental health therapist, a coach, or your divorce lawyer (preferably a lawyer trained in Collaborative Divorce) to start formulating a plan for your future. Do you want a future filled with acrimony and revenge or with peace and joy? Do you want a future of scarcity or one of abundance? Do you want a future where you are battling for short-term goals and harm to your spouse at the cost of long-term strife, or a future where your spouse and you can both work together for mutual benefit? Remember, your future is yours and yours alone. Your post-divorce future does not belong to your ex-spouse, your parents, your divorce lawyer, or your therapist. It is yours to choose and yours to have. Once you have a sense of what you would like your future to be, start acting in a manner that supports that future. Your actions today will impact your future. Tell your divorce lawyer and others about the future you want. Neither your divorce attorney nor anyone else can help you work towards the future you want without you sharing it. The more clear you can be about what future you would like for yourself, the more likely it is that you will achieve that future after divorce.
One of the frequently-missed pieces about divorce is
that divorce is unlike most other life changes. Perhaps
uniquely, divorce usually involves a change in
relationships, rather than the ending of relationships.
Most people, including most divorce lawyers, think of
divorce as a one-time event; while a divorce may be a
one-time event in terms of a change in legal
relationship from married to unmarried, most people
experience a divorce as a long-term series of events
that are actually a reconfiguration of different
relationships. Therapists will talk about the “emotional
divorce,” different from a legal divorce, that can take
years. Lawyers tend to think of divorce as a singular
event when the divorce decree is entered, and think of
the emotional divorce as separate from the legal
divorce. However, most divorce attorneys and judges have
seen many divorcing couples return for additional
services in the form of modifications of child support,
parenting (custody and visitation) and spousal
maintenance (alimony). Most divorce lawyers and judges
think of those proceedings as separate from the divorce,
because the laws legally define modifications and
adjustments differently from divorce. On reflection,
however, most divorce attorneys can see how many of the
modifications they see can be a continuation of a
divorce process where the spouses have not fully reached
resolution or the spouses' post-divorce relationship has
not normalized. The new relationships that each
divorcing spouse must forge after their divorce are
many. Not only does divorce require structuring new
relationships with children and former spouses,
generally in the form of a settlement or divorce decree,
but divorce also requires redefining relationships with
others, such as mutual friends, support networks, and
even in-laws. While divorce laws may not recognize these
relationships, and divorce attorneys cannot place
provisions about these types of relationships into
divorce decrees, the divorce proceedings can have
significant impacts on those future relationships.
Maintaining or rebuilding a working relationship with a
former spouse and maintaining other important
relationships necessarily means that it is necessary to
approach divorce in a manner that allows maintaining or
rebuilding relationships. Like it or not, the behavior
of both the divorcing couple and the divorce attorneys
will impact the post-divorce relationships of the
couples. In our experience, those who are able to
divorce in a way that honors post-divorce future
relationships will need less legal intervention after
their divorce, because they were able to reach a deeper
resolution during their divorce. Consequently,
inevitable tensions that arise in relationships after
the divorce can be more easily resolved rather than
escalate into post-divorce legal proceedings. It is
worth spending the time and effort during your divorce,
and to select divorce lawyers and other divorce
professionals, to help achieve a divorce settlement that
honors those future relationships. Doing so will likely
reduce both the emotional and economic cost of your
divorce.
What is the difference between a divorce “settlement”
and a divorce “resolution”? Most family law attorneys
are very familiar with clients who have reached a
settlement in their divorce, and yet who return time and
again for new post-divorce legal proceedings, such as
modifications. The former clients
visit their attorneys with issues relating to parenting
(child custody and visitation), child support, spousal
maintenance (alimony) or other family law matters. The
difference between a settlement and a resolution is
simply that
a settlement addresses merely the narrow legally-defined issues for divorce and separation;
a divorce resolution addresses more.
Family law attorneys generally think in terms of
addressing the issues defined by divorce law and tend to
ignore or brush off anything that cannot be addressed
through the legal lens. The problem with that approach
is that merely addressing legal issues like the property division, spousal maintenance,
parenting plan, and child support, leaves the
underlying conflict unresolved. While the legal issues
in divorce are important, when the conflict is not
resolved, it tends to create problems later. In other
words, solely addressing the legal issues in divorce can
be an incomplete approach. To arrive at a more complete divorce
resolution, both the legal
issues and the source of the conflict needs to be
addressed as part of the divorce. Doing so
creates a better divorce outcome, results in a resolution
with durability, does not unnecessarily damage
important relationships, and reduces the likelihood of
divorce lawyer involvement in the
future. Certainly, a divorce settlement is
an enormous improvement compared to not settling your
divorce. Often, a divorce settlement is all that can be
achieved. Resolution addresses the conflict.
When a couple reaches resolution in a divorce, it does
not mean they stay together; instead, it means that they
leave the marriage with integrity and with far less
damage. There is a very strong emotional component in
any conflict, especially in divorce. Reaching a
resolution in divorce is related to acceptance of self
and other in addition to addressing the legal issues. Not every divorcing spouse is interested in
resolution; those who value the possibility of deeper resolution
in their divorce may wish to consider two things. First,
do their divorce lawyers and
other professionals have the awareness and skill set to increase the
likelihood of reaching resolution in the divorce?
Second, is the chosen divorce process well-suited to
allow for resolution, and restructuring families and
relationships without inherent collateral damage? Most
people understand that divorce court and adversarial
divorce (including settlements reached after an
adversarial process including settlement conferences)
usually result in collateral damage. Conventional divorce legal representation is
highly unlikely to allow for anything more than either a
divorce settlement or an adjudicated outcome. Collaborative
divorce and divorce mediation are two processes that can
be structurally conducive for deeper resolution in
your divorce. If a durable resolution in your divorce is
consistent with your values, then you should investigate
the possibilities of a Collaborative Divorce or a
divorce mediation with divorce lawyers and other
professionals who can support you with that option.
One of the parts of divorce is separating finances.
Separating finances in divorce includes separating
incomes, bill-paying, property, and debt, and tools such
as child support and spousal maintenance (alimony) exist
to help make separating finances more feasible. One item
that is commonly overlooked by divorce lawyers and
divorcing couples alike relates to a very practical part
of marital obligations after divorce: the impact on creditworthiness.
Seattle divorce lawyer Mark Weiss says: “You can divorce your spouse, but you can't
divorce your bank.” In other words, if a divorce
decree says that only one spouse is responsible for a debt,
the lender is still not bound by the divorce decree. The
divorce decree only binds the former spouses. Even the
best divorce lawyer cannot change that both ex-spouses
remain liable on a joint debt until paid in full,
although some lenders may specifically agree (sometimes
for a fee) to remove one
spouse from the debt. This often arises with house mortgages, when one
spouse is awarded the house as part of
the divorce settlement. The divorce lawyers might write
a divorce settlement agreement or divorce decree that
says that the spouse who gets the house is
to pay the mortgage payments. A divorce decree with that
language will normally
be binding between the spouses, and it has no impact on the
bank; if the obliged spouse defaults, the bank can still
come after both spouses regardless of what the divorce
decree says. Even signing a deed that transfers title to
the house to one spouse as part of the divorce will not
change responsibility for the mortgage. A divorce simply
has no effect on the obligation of both spouses to a lender
for a joint debt. Worse, a post-divorce default on a
joint debt is likely to hurt the
credit ratings of both. Some divorce
lawyers recommend that divorcing couples review their
credit reports, and we strongly recommend it. While reviewing a credit report is
usually informative, doing so during a divorce is
particularly beneficial. During divorce, you also want
to look for some specific things. When reviewing your credit report
as part of a divorce, look for accounts that are listed
in both or joint name or with both social security numbers.
Surprisingly, there are often accounts that are issued
in one name but where both spouses are obligated to the
lender. Reviewing your credit report as part of your
divorce, preferably with your divorce attorney, will
help uncover those types of accounts. To protect the
credit rating of both, accounts that are
listed as joint accounts should be transferred into one
party's name only or, if that is not possible, closed as
part of the divorce.
Federal law allows you to get a free copy of your credit
report every year, whether or not your are getting a
divorce. You can get your free credit report at
www.annualcreditreport.com. Be sure to request
reports from all three credit reporting agencies,
because the information can differ. If you do not
purchase the options that are offered, the reports are
free, and the information could help your divorce go
much smoother. If you have questions, be sure to ask
your divorce lawyer or divorce financial specialist.
Whenever children are part of a divorce, legal separation, or dissolution of a domestic partnership, the law requires
that child support be addressed. The purpose for child support is to ensure that children's needs are met in the post-divorce
family. Child support is intended to address all the expenses associated with child-rearing after divorce, from housing
and food to clothing, education expenses, and extracurricular activity costs. Every State has its own child support laws, and
Washington's child support laws will be quite different from those in other States. In Washington
State, divorce attorneys will typically
talk about how our child support law has two separate components: the first
component is the so-called “transfer payment”
which is ordinarily a fixed dollar
amount; the second component is the sharing of
additional expenses by the parents, usually on a
percentage basis. Divorce lawyers will ordinarily
describe the shared expenses as possibly including child
care expenses, education expenses, long-distance
transportation costs, extracurricular activities, and
health care expenses (including medical insurance). For the first time since 1997, in April the Washington State
Legislature has passed a major update to the child support laws. The new law goes into effect on October 1, 2009, and divorce lawyers throughout King County and Washington
State have been studying the new law. The new child support law brings with it many changes. Unchanged is the
four-step process for determining
the child support transfer payment, which are: (1) Determining the proper numbers to be used in the child support worksheet calculation, (2) running the
worksheet calculations to arrive at the preliminary “presumed” child support figure, (3) determining whether there should be
a deviation from the presumed number, and (4) making an
allocation. It is best to consult with a divorce lawyer about this process, especially steps (1) and (3), which can be
easily misunderstood. The new child support law increases the amount of the transfer payment for many (not all) children of divorce, gives
needed guidance to lawyers and divorce courts in how to apply the law more consistently.
Both divorce lawyers and many families will welcome be the
updated higher limit for allowed retirement contributions, and also the simplified way of treating
the sharing of health care expenses between parents. Because the new law does not
go into effect until October 1, most every divorce lawyer is grappling with how to address child support prior to October 1, especially since the new law
may have a major impact. Some divorce attorneys feel that it is important to address the new child support provisions immediately, because existing child
support orders do not automatically change with the new law. In other words, divorced parents who have an existing order will need to get it changed if they
want the new law to apply to them. It is best to consult with a qualified divorce lawyer to investigate the options, including agreements that may be
appropriate in light of the new law.
Nowadays, many divorcing couples decide on a
Collaborative Divorce as their preferred divorce
process. Collaborative Divorce is especially suited for
divorcing couples who have a moderate level of conflict
between them, and are willing to commit fully to working
to resolve their conflict using a non-adversarial
process with specially trained divorce lawyers. There
are some important considerations when deciding on a
Collaborative Divorce. First, compared to a conventional
divorce, in a Collaborative Divorce far more important
decisions are made by the parties rather than the
attorneys. This means that you and your spouse need to
be willing to engage in the divorce process far more
actively than in a conventional divorce, where the
lawyers do more of the work. Second, because additional
skills are required of the attorneys and other
professionals in a Collaborative Divorce, it is usually
useful to ensure that not only that the lawyers be
trained in the process, but also be experienced in the
Collaborative Divorce process. Third, because the
professional team will need to work together closely, it
is useful to ensure that the divorce attorneys whom you
select are a good pairing to maximize efficiency. The
activity level in a Collaborative Divorce is quite
different from the activity level in a conventional
divorce. For both clients and lawyers, a conventional
divorce tends to have a flurry of activity towards the
beginning of the case, followed by a less activity, with
a very intense level of activity in the weeks or months
leading up to the trial date. With intense work by
lawyers, a conventional divorce often results in a
settlement towards the trial date, after the lawyers
have taken steps in preparing for trial and prepared
legal arguments. In a Collaborative Divorce, the pace
tends to be more steady and constant. In a Collaborative
Divorce, progress towards divorce agreements is made
incrementally by the divorcing spouses, based on
systematic education provided by the lawyers and other
professionals on the many parts of the divorce process.
The divorcing spouses have discussions that are
facilitated by the divorce lawyers or other professional
team members on the various components of their divorce.
The most efficient Collaborative Divorces are those
where the parties are willing to be honest with each
other and with their lawyers about what is most
important, while respecting that the other may find
different things to be important. Collaborative Divorce
is an efficient and cost-effective divorce process that
has a very high success rate with divorce lawyers who
are trained and experienced in the Collaborative Divorce
process and clients are are committed to engage in the
divorce process.
Many divorcing couples find dividing property and debt in a divorce to be a puzzle. How is property and debt divided in a divorce? When you consult a divorce lawyer,
you will quickly learn that there is no formula. Many divorcing couples will be surprised with their divorce lawyer tells them that their property and debt need not be divided equally. More divorcing couples will be surprised to learn from their divorce lawyers that
the characterization into community property and separate property is only a step along the way, and that separate property can also be divided in a Washington divorce. (Always consult a divorce lawyer
in your own state, because divorce laws vary substantially from state to state.) Another puzzle is how to deal with property such as houses, businesses, stock options, and retirement plans in divorce. All need to be addressed, and most divorce lawyers will recommend hiring experts to appraise
real estate and to value businesses, and the lawyers will sometimes need to prepare additional documents to address these items. Tax considerations add to the complexity of dividing property in divorce. Take this example: Say that a divorcing couple has two brokerage accounts.
Both accounts show a market value of $100,000 on the
most recent brokerage statement. If each spouse gets one
account in the divorce settlement, will each spouse have received
the same value? The answer may surprise you. Unless the investments
in each account are entirely identical (including the
price at which each investment was purchased), the
actual values of the two accounts will be different, and
the spouses will be left in different economic
situations after their divorce. The reason is because in divorce, each spouse takes the tax basis that goes along with the
property that is awarded to that spouse. In other words, the built-in capital gains or loss
taxes for the two accounts are likely different, making the values also different.
The differences can be quite substantial. Some divorcing
couples will try to offset a 401(k) against a brokerage
account, but the character of the property is vastly
different, again leaving the former spouses in vastly
different economic situations after their divorce. Divorce attorneys and financial advisors will be able to tell you that there are many ways to divide property in divorce. When a legal
standard is used, the court looks at several factors to arrive at a fair and equitable property division in the divorce.
Your divorce lawyer can advise you how a court might
look at your situation. When negotiating a divorce settlement, most divorcing spouses
will apply their own standard, with perhaps the main
consideration being that the spouses will each have a
viable financial future given the realities of the marital estate and incomes. Divorce presents financial challenges, and obtaining legal and financial advice from
qualified advisors can make a substantial difference in arriving at a good post-divorce outcome.
Most therapists and many divorce lawyers will spend time
talking about the importance of keeping children in the
forefront of your consideration when getting a divorce.
While divorce is an extremely stressful event for the
adults involved, it is also an extremely stressful event
for children. Even children who appear on the surface to
be doing fine may actually be suffering from
considerable stress resulting from the divorce.
Addressing the needs of your children involves much more
than merely arranging schedules and working with your
lawyer to create a parenting plan. The legal parenting
plan (which spells out custody, visitation, decision
making, and similar issues) can only address superficial
of aspects of post-divorce parenting. Children
of divorce know the essence of what is happening, and
have lots of fears and anxieties. It is not uncommon for children to
feel responsible for the divorce. Just as parents go
through a grieving process, your children also will be
going through a grieving process. The good news is that
divorcing parents — and the instructions they give
their divorce lawyers — can make a big difference in
reducing some of the impacts of divorce on their
children, and to transition into a healthy bi-nuclear
family. Most divorce lawyers can give many examples of
the unhealthy involvement of children in the divorce,
which include fighting in front of the children,
including children in discussions about the parents'
divorce, leaving legal papers out for children to read,
etc. These and other examples of involving the children
in the parental divorce actually harms the children.
From the child's perspective, their entire world is
turned upside down, and children know that they have
both their mom and dad inside them and they naturally
love both mom and dad. Including the
children in the acrimony of divorce rips them from the inside
out and makes it feel unsafe for them to be with the
people whom they love the most. At the same time, the children are keenly aware
that things are now very different. The best gift you
can provide your children from a divorce is a good
co-parenting relationship with the other parent. Talk
with your therapist and divorce attorney about what that
might look like. Learning (or re-learning) good
communication skills will be key. Your divorce lawyer
may be able to include provisions in your parenting plan
for regular parenting meetings, to help communications. You and your ex-spouse
will have different parenting styles. However, you can
still communicate to parent together. Instead of
responding "ask your mother/father," when a child asks
for something that you may question, you can then
respond "let me talk with dad/mom about that." You will
be sending the message that the other parent is
important, that the child does not need to keep secrets
from the other parent, and that you are both working
together as parents who love their child. Reinventing
your relationship from a marriage into a co-parenting
partnership will help ensure that the children will be
able to make a healthy transition to a normal
post-divorce life.
Divorce presents many challenges and stresses. Divorce lawyers -- especially Collaborative Divorce lawyers -- and mental health professionals are very aware of the normal
emotions that divorcing couples experience. Emotions such as grief, shame, anger, resentment, panic, sadness, and depression are very common. In fact, many of those emotions are a necessary
part of the grieving process in divorce. With all those emotions, it is no wonder that anxiety tends to run sky-high during divorce.
With all those emotions, patience during a divorce
can be very difficult to muster, yet is extremely important.
Few people enjoy being anxious and stressed for for very long.
In an attempt to reduce their anxiety, some divorcing spouses
try seek a divorce settlement as soon as possible. While it can perhaps feel tempting -- or even
feel imperative -- to push for a quick divorce settlement, that may be a major mistake. Divorce is not only a time
of enormous stress, but it is also a time when the decisions you make can have major, even life altering
impact. Divorce lawyers frequently see how the normal stresses of divorce can interfere
with good decision making. Most divorce lawyers can
point to many examples of couples who rushed to settle
their case, only to regret their decisions later. Making
good, well-informed, major decisions can be difficult in
the best of times; the decisions are not any easier
during the worst of times. Reaching a divorce settlement too quickly,
without carefully considering the long-term impact, can mean
that you reach a divorce settlement that has major flaws. For most people, it takes time to learn
and process all that must be mastered before being able
to make a good settlement decision. Neuroscience teaches
us that stress and anxiety interfere with the ability to
learn and to make good decisions. Thus, the stress of
divorce interferes with the ability to absorb
information needed to make important decisions and
interferes with the decision making itself. This is why
patience is so important. It is worth taking the to ensure that the settlement agreement
will meet your long-term needs by being carefully considered, rather than
being driven or affected by anxiety and fear. Quite often,
an expedient divorce settlement made to try to stop the stress, anxiety, and fear will
only cause regret in the future. Often, the best divorce
attorneys will not be able to help you change or correct
such a divorce settlement agreement, even if you tried
to choose that route. Even more cruel is that the pain
rarely goes away, even when a divorce settlement was
made to do just that. What can be addressed in a divorce settlement is rarely the cause of the pain, so the divorce settlement is rarely the cure.
The pain is usually caused by the emotions inherent in
the grieving and de-coupling process. Once the euphoria of the settlement wears
off, the divorce settlement has done little or nothing
to reduce the pain; and, when improvidently made, that
settlement will cause additional anxiety because of its
flaws. Again, patience, as difficult as it can be to
muster, is your friend.
Many divorcing couples wonder about what to do about
retirement plans during their divorce. Your divorce
lawyer will tell you that retirement is usually
considered an asset in divorce that needs to be divided
as part of the divorce settlement or in the divorce
decree. Retirement plans -- whether in the form of
traditional pensions, deferred compensation plans,
Individual Retirement Accounts (IRAs), or defined
contribution plans such as 401(k)s -- all must be
addressed in some fashion during divorce. The first step
is to simply catalogue all possible retirement plans
that you may have accumulated during your life. Even the
small pensions that was earned from an employer before
marriage must be addressed in some fashion. Sometimes
divorcing couples do not realize that a single employer
may have multiple plans, and it is important to
double-check with the Plan Administrator during your
divorce proceedings to ensure that all plans are
addressed. Second, a value should be established so you
can make good decisions about the plan during your
divorce. Your divorce lawyer may be able to help with
establishing the value or may recommend hiring an expert
to assist in determining the value. In any event, a good
divorce lawyer will want to review the statements and
the "Summary Plan Description" (if a private plan) in
order to understand the plan. The value depends on the
type and specifics of the plan and may not always be
obvious. Generally speaking, for an IRA or defined
contribution plan (such as a 401(k) such as a VIP, or a
403(b) plan), the value is normally the account balance.
For a defined benefit plan, such as a traditional
pension, your divorce lawyer will likely recommend
hiring an expert to assist in arriving at the value,
which is a combination of legal factors (defined by the
law and the plan) and financial consideration (such as
historical market rates of return. When looking at the
values of retirement plans during your divorce, be sure
to carefully consider which retirement assets are
before-tax assets and which are after-tax assets. Most
will likely be before-tax. While most retirement plans
can be transferred between spouses as part of the
divorce without triggering taxation, whoever receives
the plan as part of the divorce settlement will
eventually need to pay income tax when the retirement is
actually paid out. Some retirement plans are after-tax
-- the most well-known are Roth IRAs and nondeductible
portions of conventional IRAs, and the spouse receiving
those as part of the divorce will normally not need to
pay tax when the money is received. If retirement plans
are cashed out before a certain age (currently mostly
age 59-1/2), the IRS imposes an additional 10% tax on
top of ordinary income tax. If you need to cash in all
or part of your retirement as part of your divorce, be
sure to count on that extra tax. If you are receiving
all or part of your spouse's qualified defined
contribution plan as part of your divorce, there is one
technical way to avoid that additional 10% tax; the
requirements are technical, so be sure to obtain
assistance from a qualified professional if you wish to
avail yourself of that possibility during your divorce.
From experience, not all divorce lawyers or financial
professionals are familiar with the technical
requirements, so be sure to consult with a divorce
lawyer or financial professional who is. Most retirement
plans can be transferred between spouses as part of
divorce. Government plans require special language or
court orders. So-called "qualified" plans (such as most
private pensions and defined contribution plans like
401(k)s) require a special court order called a
"qualified domestic relations order." IRAs and some
other plans need only be identified in the divorce
paperwork. Because the requirements differ and can be
complex, it is best to get qualified advice from a
divorce professional when dealing with retirement plans.
There are two possible ways in which all the important legal divorce decisions
get made -- things such as parenting plans, property division, and child support. One way is by having the decisions imposed by an outsider, usually a judge and sometimes an arbitrator (essentially a “rent-a-judge.”)
The other way is by reaching a negotiated agreement. For those who reach a negotiated agreement, there are a variety of processes, each with their own advantages and disadvantages, that are available. This website has a lot of
information in its pages about various divorce processes, from “do it yourself” to divorce mediation, to collaborative divorce, to settlement conferences, to divorce litigation. Regardless of the
divorce process you may choose, there is almost always need to be communications between the spouses or ex-spouses, even if they have divorce lawyers. In recent years, email has become a popular way of communicating, and the
popularity extends to divorce. Email is a wonderful innovation that has made instantaneous written communication worldwide possible. Perhaps not surprisingly, email can be a very useful tool in divorce. For example,
email can allow for efficient communication between divorce attorneys and their clients. It also allows efficient communication about parenting
logistics and scheduling. Email allows for less direct interactions and provides a record of
what was said, making it possible to slow down and reflect
a bit before sending a message, and it provides a reference
for both parties if that is needed. Despite its ease and advantages, email also has pitfalls and distinct disadvantages -- particularly in divorce.
Most divorce lawyers are very familiar with the problems
that email can present, and therefore most divorce
lawyers usually advise their clients to exercise caution
and discretion when using email. The cautions apply particularly to divorce negotiations,
because of the strong emotions that normal divorcing
spouses experience in their divorce. A recent article in Harvard Negotiation
Journal identified three main problems when using email
for negotiating. First, studies have shown that negotiations conducted by email lead to less satisfying outcomes and
more frequent impasse than direct
negotiations. Because negotiating by email is so
inferior according to the studies, negotiating divorce
issues is likely not a good idea. Second, email has a
high potential to be more
contentious and hostile than direct communications. The authors of the Harvard article identify several reasons for this
phenomenon, including that parties feel less inhibited behind a computer screen and
are not able to gauge the other's intentions due
to lack of nonverbal communications such as eye contact and tone.
Both factors increase the likelihood of hostility, which
may already be attenuated in a divorce. Third, email
leads to misunderstandings. The ease that email creates
-- being able to quickly dash off a message -- also
tends to create greater sloppiness in writing,
increasing the likelihood of misunderstandings. Most
divorce lawyers, especially those whose practice is
focused on helping clients reach negotiated solutions,
have seen all of the problems identified in the Harvard
article in their practices. Besides the factors in the
Harvard article, studies have shown that people tend to
view emails more negatively than any other form of
communication. Especially if you are dealing with the
important matters that are part of your divorce, you
likely do not want your communications to be viewed more
negatively than you intended. Often, communications
between spouses is already strained during a divorce,
and increasing misunderstandings is usually not
beneficial, since reaching a divorce settlement means
arriving at a mutually acceptable agreement with your
spouse. All these disadvantages lead to a conclusion
that email should not be used for negotiating (including
substantive conversations) if at all possible,
especially in divorce. Email is a wonderful tool that
works very well in certain areas; negotiating a divorce
settlement is not one of the places where email works
well.
Many divorce lawyers find that January is their busiest
month. While many divorce lawyers have theories about
this, no one really knows why many people call to start
their divorces in January. When a divorce lawyer meets a new
client, and whenever some decision needs to be made, the
lawyer is generally supposed to discuss the available
options. Almost always, each option carries both
advantages and disadvantages; generally, there are
several available options. Even when a divorce lawyer or
client has a clear preference, the options need to have
been explored. The first option to be chosen with any
legal representation are the available processes to
pursue a desired objective. In the past, when "old style
divorce" was the only available alternative, there was
only one option when the couple was not in agreement.
That alternative was going to divorce court. Nowadays, there is a range of
divorce alternatives available. Because of the range of
alternatives, divorce attorneys now need to explain the
available processes, even if a particular lawyer does
not practice in each process. In this age of ever-greater specialization,
not all divorce lawyers do the same thing. If you are
getting divorced, you need to know the range of options
-- sometimes called the "dispute resolution continuum"
-- so you can select the divorce process that is right for
you. All processes have advantages and disadvantages,
and it is your choice -- not your divorce lawyer's
choice -- which process you wish to pursue. There are many
excellent divorce attorneys who practice in every
available process, and your task is first to select the
process, and then the divorce lawyer who is most suited
for you. While it is not possible to address each
divorce process in any depth here, it is possible to
briefly identify the available processes in the King
County area. At one extreme of the continuum is the "Do
It Yourself" (DIY) divorce. A DIY divorce has the least
professional fees, but also leaves you vulnerable to not
knowing what you don't know. Divorce decisions and legal
contracts will have complexities, and most lawyers
recommend at least a legal consultation to help you
identify what those might be for you. Divorce mediation
offers some more support than DIY, in that a neutral
mediator (preferably one who is trained and experienced
in mediation) helps you and your spouse talk about what
is important. Most divorce mediators will also provide
some guidance as to the items that will need to be
addressed, even though mediators cannot give legal
advice. In a Collaborative Divorce, each party has a
divorce lawyer present at all major stages whose sole
task it is to help obtain a settlement. The lawyers are
specially trained in both the Collaborative Divorce
process (with its unique procedures) and in dispute
resolution, and will typically work in an
interdisciplinary team of neutral divorce professionals
(financial, child, mental health) to be able to provide
optimal support. A Collaborative Divorce, while more
expensive that either party-only mediation or DIY,
provides legal advice and support at all points. When
the Collaborative Divorce ends, so does the work of the
Collaborative Divorce lawyer; this is so even if the
process ends without reaching an agreement. An
attorney-settlement involves conventional attorneys
using conventional legal power-based processes; rarely
are conventional attorneys formally trained in dispute
resolution other than the very limited and somewhat
ineffectual method of trying to convince others that the
law supports a particular outcome. However, in some
cases, that method may be needed to reach an agreement
that is not one-sided. A settlement conference
(sometimes referred by attorneys as mediation) is a
trial-avoidance process that usually occurs when both
sides understand their legal positions -- when the
divorce attorneys have completed much of their trial
preparation. In a settlement conference, the divorce
lawyers and clients generally sit in separate rooms,
with a neutral trying to convince both to settle based
on the law. The expense is high, but sometimes this
process is needed to reach an outcome that is not
one-sided. A trial is at the far end of the spectrum,
where a judge makes the divorce decisions. Trial is the
most expensive of the divorce processes. Each of these
divorce processes have advantages and disadvantages; for
some, you will choose a process that feels good; for
others, you will choose a process that feels least bad.
A good divorce lawyer will be able to discuss, in an
unbiased manner, the advantages and disadvantages, so
that you can make the best decision for yourself. The
important thing is that you choose the divorce process
that is best for you, rather than being guided towards a
divorce process that is less than optimal for your
situation.
Divorce is a major life change and a major decision. The impact of divorce will be life-altering for you, your spouse, your children, your family and your spouses' family, and your friends. While few would
recommend staying in an unhappy or unhealthy marriage or relationship, it is well worth
being absolutely certain about the decision to divorce.
Just thinking about it or talking with friends is
probably not enough. Additionally, consider active
participation in a marriage reconciliation process with a trained professional before making the decision to divorce. Doing so will allow you to be sure in your mind that you made the right decision. Studies show that a
large percentage of divorced couples (on the order of
45%) had second thoughts in the months and years
following their divorce. To make certain you are not part of that statistic,
isn't it better to take the time and effort to really be sure that
a divorce
is the right decision for you? Once you or your spouse visit a divorce lawyer, it is unlikely that marriage reconciliation will be on the menu of options offered. In fact, most divorce lawyers are
even not comfortable
talking about reconciliation because it is not within their training or experience. Divorce attorneys are trained as legal experts
to get the paperwork done for the legal divorce. Lawyers are not typically trained in exploring the viability of marriage
or emotions with their clients and, because a divorce
lawyer's professional life consists of working with
failed marriages, that steady diet can subtly bias the
view of even the most well-meaning lawyer.
(This phenomenon is a form of "recency bias" that in
divorce is closely connected to "emotional contagion.")
A divorce lawyer's office is therefore probably a very
poor place to explore marriage reconciliation. A much better place would be with a
qualified mental health professional. For more specific issues,
marital mediation is another option instead of divorce. Marital mediation is mediation with a mediator
who might otherwise conduct divorce mediation, but with
the objective to help couples resolve conflict and remain together
instead of divorced. Marital mediation can often be
successful. If you are considering marriage
reconciliation, do consider your goal. What we suggest
is that the goal for marriage reconciliation not be to
learn how to put up with what is an unbearable situation; instead,
we suggest that the goal be to change the relationship
into a happy and fulfilling marriage or committed relationship.
You will not know if that is possible unless you try. If reconciliation is not successful,
a divorce remains available as a next step. But if reconciliation is successful, then you will have saved yourself and your family the expense and grief that a divorce almost necessarily entails.
While a good divorce (a Collaborative divorce or
mediation) is much better than a bad divorce (a
litigated divorce), no divorce is best of all. All that
would be lost
is the time spent exploring whether or not divorce is truly the right choice for you.
Why not know the answer for sure before making a decision
to visit the divorce attorney?
When parents decide to divorce, many wonder how and when to tell their children. In fact, how and when to tell children about the divorce is one of the most common questions that divorce lawyers
get at an initial consultation. As we learn more about the impact of divorce on children,
lawyers and mental health practitioners are also learning more about how and when to let children know that their parents are divorcing.
Parents often make a valiant attempt to hide the disintegration of their marriage from the children. While certainly not so in every case, children are usually aware of the stress and difficulty
that parents are undergoing. Additionally, unlike in the past when divorces were rare, nowadays roughly one-half of all marriages end up in divorce. School-age children will therefore normally know
about something about divorce from friends and classmates. Sometimes children seem aware that a divorce is coming before their parents have recognized it.
Hence, many recommend telling the children of the
divorce decision as soon as both parents are truly
certain about the divorce; and, the decision really
needs to be certain. Ultimately, the decision as to when and how
to tell children about the divorce is a very personal parental decision,
as that type of news is likely to be highly impactful on
your children. Here are some guidelines that may be useful. First, it
is often best to get professional help from a mental health practitioner
with a focus on children. That professional will be able to help you shape your message so it is best suited for your
particular children. Second, it is frequently best when both parents tell their children about the divorce
together. The message is most effective when the parents have been able to talk and script what they are going to say. Third, most experts agree that the parents should emphasize that they are divorcing
each other, and are not divorcing their children. Children may not know what divorce means, so explaining what it will mean for them will be helpful. Fourth, both parents should assure the children that
both parents love them and will continue to active parts of their lives. Because many children start believing that they caused the divorce, be sure to emphasize that the children are not the reason
mom and dad are getting a divorce. Fifth, assure your children that you both want to make sure that you will continue to work together for your children because you both love them. It is best if both parents can
say something positive about the other parent as a parent. Sixth, do not expect children -- especially younger children -- to remember what you said unless your behavior also changes. The behavioral change might
include moving to another house or to another bedroom. While divorce is never easy, remember your commitment to your children and how children truly need both parents. You are divorcing your spouse, but your children
are not divorcing their parents. While children should need to be informed of the divorce, your child is not your confidante in your divorce. Similarly, your child should not hear or see you speak or behave in a disrespectful
way to that child's other parent. By following guidelines such as this, you will help your children immensely -- and help keep down fees you might otherwise pay to your divorce attorney.
With divorce and separation being such a major life
transition, it is normal to want to try to figure out
what the future may bring. What will happen with the
children after divorce? How will bills be paid after
finances are separated? What will things look like after
divorce? Most getting a divorce turn towards trusted
advisors. Those might include family members, friends
and acquaintances, clergy, counselors, accountants, and
lawyers, among others. Each brings his/her own divorce
perspective to the table, which may or may not be
consistent with your values after divorce. Nowadays,
divorce information is also available over the Internet,
including here. The post-divorce unknown is
uncomfortable. Divorce lawyers, and others, can help you
look for and find solutions. However, there are dangers
in accepting others' solutions uncritically or arriving
at solutions too soon. Someone else's divorce solution
may not be the best fit for you. Or, your spouse may not
agree with your solutions. Or, your solutions may have
implications that you do not realize, simply because you
are not a divorce expert. And, the solution might just
be the thing. When considering a solution, it can be
useful to consider it as just one strategy (or a few
strategies) for addressing the particular interest or
need that you have. It is a good idea to remain open to
different strategies that might better address those
interests or needs. For example, you may think that
equally splitting the residential time for your children
is the best solution. It may be, but it is also just one
strategy to deal with your and your children's needs.
Perhaps your needs include remaining connected with and
involved in your children's lives, or ensuring that your
children have the benefit of two parents, or perhaps
even to fill in a bit for a loneliness hole in your
life. Whatever your needs and interests may be, they are
unique to you. And while sharing equal custody with your
spouse may be one strategy for addressing your needs,
there may be other strategies for addressing your needs,
perhaps even ones that will serve you better in your
post-divorce life. Divorce lawyers and other
professionals, like all humans, have their own biases
and will not not know your needs and interests by
osmosis. And many divorce lawyers will not ask you about
what you are really trying to accomplish in your
divorce. You are likely to need time to consider what
your interests and needs truly are. It is well worth
spending time -- perhaps even months -- to become clear
about your needs and interests in your future. What are
the needs and interests that lie behind your
post-divorce solutions and strategies? Once you are
clear as to your needs and interests, your spouse and
you, and/or you and your divorce lawyer and other
divorce advisors, can devise strategies and solutions to
address those needs and interests. The important part is
to take your time in your divorce to discover what those
needs really are and then be honest and tough on the
possible solutions to see if they truly address those
needs best and whether there are other, mutually
acceptable, solutions that best meet those needs. Doing
so will help you arrive at the best possible future
after divorce.
It may be surprising to you, but most divorce lawyers and divorce courts do not look at divorce the same way that most divorcing couples do. To most divorce lawyers, divorce is primarily a legal matter that has an emotional aspect. By contrast, most couples going through divorce view divorce as primarily an emotional transition that has secondary legal implications. This difference between seeing divorce as primarily emotional -- a major life transition -- with legal implications instead of primarily legal is enormous. When viewed through the legal lens, the normal emotions of divorce are at best inconvenient and rarely, if ever, desired. In fact, the legal system is quite incapable of addressing emotional needs and therefore will either pretend they do not exist. That is because the law tends to reduce human conditions into dispassionate and abstract logic problems. By looking at a divorce as primarily a logical legal problem, divorce lawyers will tend fit your divorce (the "facts") into "legal theories" that are recognized by the law. What is a legal theory? A legal theory is shorthand for lawyers and judges as to how your case should be viewed under the structure of the law -- a decision tree, as it were -- under the overriding theory that similar cases should be decided similarly. The law is rigid because divorce courts do deal with some people who need rigidity -- it is a system designed for the very worst situations. Unless you happen to fall into the worst 5 or 10 percent of divorces, the rigidity of the court may not be necessary and may actually be counterproductive. While legal theories and consistency are important and necessary when it comes to courts making decisions (they would lose legitimacy if they decided otherwise identical cases differently), for most non-lawyers neither the theories nor consistency are particularly important unless a court or judge is making the decisions. When you make your own divorce decisions, and do not ask a divorce judge to decide your divorce case, you can generally disregard whether the next divorce will be consistently decided. In making private agreements, you care about yourself, not someone else. While it is a good idea to learn what may have worked for others so you have some options, the ultimate question is what will work for you in your divorce. Divorce lawyers tend to live in the world of the court system and therefore think about divorce as a legal matter with legal theories. The "solution," in the mind of most divorce lawyers, is to apply the legal theories to the facts of your case to arrive at an outcome. That logical solution may fit nicely if you believe you are a legal problem in need of a legal solution -- essentially if you can be reduced to a puzzle for which there is a right answer for someone else to figure out. However, if you see your divorce as not primarily a legal matter, but primarily as an emotional life transition that also has legal implications, then using divorce law as the standard for making your own decisions may be using the wrong tool for the job. Instead of fitting yourself into a legal theory, it may be better to focus on what is important to you and your spouse, and then try to address what you have discovered in your divorce settlement. For example, you and your spouse will likely find your future finances important. If you focus on understanding your future financial needs after divorce, and then focus on addressing those needs, you will be able to make decisions in your divorce that are based on what matters to you, and come up with a real-world solution that works for you, rather than trying to fit your life into an abstract legal theory of divorce law that is designed so judges can make consistent decisions.
Many clients who make an appointment with a divorce lawyer ask what documents they should have available. Almost every divorce will require pulling
together some documents. Unless you need to go to court immediately
(which is generally necessary only if you have an emergent situation that cannot be addressed through
discussion and negotiation), it is generally not necessary to gather documents for a first consultation with
many divorce lawyers. Individual practices differ,
however, so you may wish to check with your divorce
lawyer to make sure. It is not uncommon that new or
additional documents will be needed at different times. The exact documents needed
for divorce will
also depend on your unique situation. Generally speaking, your attorney will eventually need two types of documents
in any divorce. First, your
lawyer (or, for a Collaborative Divorce, your financial specialist) will need you to prepare a list of all property and debt you have.
Your divorce lawyer will need all property and debts to
be listed, including property and debt from before your
marriage, and including property and debt in only one
person's name. Most divorce lawyers and
financial specialists have forms to collect this information, and you may be able to save attorney's fees if you use those forms instead of providing
your own list. In Washington State, all property and debt must be listed in the final documentation, such as the divorce decree, whether community
property or separate property. In addition to this list, at a minimum you divorce lawyer will need copies of documents showing title
to real estate and property for which there are registrations,
such as cars, boats, and aircraft. If you have a business or investments, documents about those will be needed. Frequently overlooked
are documents about retirement plans -- every retirement plan must be addressed in divorce. If you have children for whom child support will be needed,
or spousal maintenance (alimony) may come up, then documents about income will normally be needed -- income tax returns, pay stubs, and similar documents.
You can get a head start in your divorce by assembling documents in advance; or, you may wish to wait until a later time when your lawyer and/or financial
specialist will provide you with a list of needed documents for your divorce.
Be sure to check with your divorce lawyer as to the
documents s/he may need, and when the documents may be
necessary.
It is a truism that divorce can at times bring
out the worst in people. The reason is because divorce
is one of the most stressful things a person can
experience, and among the normal emotions people have
when they are in a divorce are fear and anger. While
everyone has good days and bad days, you can count on
people going through any stressful event, such as
divorce, to have more worse days, often punctuated by
intense fear or anger. Feeling and allowing yourself to
move through these emotions can be healthy. And, we can
all venture to guess whether people are more likely to
call their divorce lawyer in a moment of panic on their
good days or bad days. Research has shown that intense
emotion can significantly change people's outlook;
common sense would seem to support the research.
Unfortunately, the legal response that a lawyer can
provide does little to soothe intense emotion; if
anything, the divorce lawyer's conventional tools when
things get tough -- which essentially amount to making
threats or going to court to try to achieve a result --
can have the unintended effect of exacerbating the anger
or fear of both parties. The anger or fear of the
lawyer's client gets reinforced by the conventional
divorce lawyer's response, which treats the statements
made in expressing an emotion as if they were
thought-through rational determinations, rather than as
expressions of fear or other emotions; this response
also overlooks the often-important and useful
information that emotions can contain. Moreover,
conventional lawyers have basically only one tool -- a
hammer, even though not every problem is a nail. The
unintended consequence is that clients can easily stay
stuck in emotions they would otherwise transition
through. The other divorcing spouse (the "opposing
party" in lawyer-speak) will often react to the lawyer's
actions with his or her own anger or fear in response to
feeling pushed around or facing a court proceeding. It
is easy to see how this can easily become a
self-perpetuating downward spiral which does nothing but
increase the level of conflict. There is another
response, and if you have a conventional divorce lawyer,
you may need to assert it. The other response is to
recognize that you or your spouse may just be having a
bad day. When having a bad day, or reacting to another's
bad day, it can be very difficult to maintain the
perspective that bad days are normal in divorce and
separation. Usually, nothing is lost by giving yourself
permission to take a few days or a week to try to figure
out if you or your spouse are having a bad day or time.
Perhaps, instead of seeking a legal response from your
divorce lawyer and starting the downward spiral, might
it be a better response to try to find out what might be
behind the fear, anger, or other intense emotion you are
feeling or observing? The emotion itself is healthy;
recognize that it may well be what you or your spouse
should be feeling right now and, if you can, perhaps
allow both of you time to move to a different place,
preferably with qualified professional assistance.
Most all divorce lawyers will inform clients that a divorce involves legally separating property and debt, providing for the residency of children (child custody and visitation, embodied into
a legal document called a parenting plan), providing for child support, and setting spousal maintenance (alimony). When it comes to property, information about all assets and liabilities will be needed
by your divorce lawyer to complete the paperwork. Divorce lawyers commonly see several areas where people are confused about property and debt. One area where many people do not understand legal requirements
is in the area of employment benefits. Divorce law treats some as property to be divided, some as income, and some as nothing at all. For example, most employer-provided life insurance is not considered to
have any value (assuming it is the typical "term" life insurance, while most retirement plans are considered to have value, and must be addressed in a divorce. Many working for software companies (and
other companies) receive stock options, stock awards, or deferred compensation; if so, they must be addressed in divorce. All of these have value and, in Washington, will be considered to be "property" to be
divided. While only a divorce lawyer can provide you with information as to how a court might view your particular situation, pretty much all property earned during marriage is considered to be "community
property." While, in Washington state, all property is subject to division in divorce, there is no question that community property will be most directly addressed. Divorce lawyers who deal with these types
of benefits can help determine the portion of the benefit that is community property. There are some specific rules that apply to stock options and awards, which involve an analysis of each grant important. Your divorce
lawyer will need to have copies of each grant, and information about the details of each grant, such as the vesting schedule and whether stock options have been exercised or stock awards have been sold. For stock
options, your divorce attorney will need to know the exercise price, and for awards their tax basis. The important thing is that these pieces of property be reviewed and addressed, because they can cause problems
later if they are not. Your divorce lawyer should be able to provide you guidance.
You divorce your spouse, but neither spouse divorces
their kids. For that reason, parents who divorce face the important task of planning for
raising their children within a context that was likely not
planned -- two post-divorce families instead of one
family. There are many aspects to transforming
a nuclear family into what psychologist Constance Ahrons calls a "bi-nuclear" family,
and there are excellent resources available to help
divorcing families transition into a healthy new
co-parenting arrangement. The law surrounding children in divorce has evolved over time, yet remains well behind
current
research. Previously, divorce decrees talked about which parent would have custody and which would have visitation.
Now more than twenty years ago, the Legislature enacted the Washington Parenting
Act, which tried to do away with the old language (custody and visitation) and instead substituted the term "parenting plan," recognizing that children benefit when both parents remain involved
in the parenting of their children after divorce. The term "parenting plan" is perhaps a
euphemism, a misnomer. Rather than what most people
consider to be a "plan" -- something that can be changed
when things are unexpected, a parenting plan is actually a court order
signed by a judge with mandatory provisions,
immutable once issued unless proposed changes fit within
narrow exceptions. If you consult with a divorce lawyer about changing a parenting plan through the court, you will learn that you will likely face
many hurdles and that a "substantial change in
circumstances" is usually required. This is where reality departs from divorce law.
Unlike a court order, real children, real parents, and
real relationships change over time. Children get older, more mature, more opinionated, interested in different
activities, and often more mobile. Their parents too change, from changed interests to different relationships to new ways of interacting with their ever-changing children. Most parenting plans
entered following divorce do not contain any allowance for
this type of normal change. Moreover, not trained as
child psychologists, most divorce lawyers will prepare a parenting plan that does not include much, if any, flexibility to change as the children get older.
In fact, too many divorce lawyers do not even know to
ask, because divorce law itself has a strong bias in
favor of there being no change -- hence, divorce lawyers
and judges will often also want to seek finality in the
parenting plans they prepare. Many divorce lawyers are
even reticent to including flexibility in parenting
plans. Parents who divorce are therefore wise
to think about whether they wish their parenting plan to include provisions to allow updating their parenting arrangements in the future. Those types of arrangements will need to be built into the
parenting plan by your divorce lawyers if they are desired.
Rigidity is the default. Such arrangement might include, for example: having a meeting between the parents every so often or at milestones such as graduations;
having parents check in with a parenting professional to see if tweaks are appropriate to optimize parenting; having parents meet with a mediator if they have different views; etc. Your divorce
lawyer will be able to discuss some of these and other options, and prepare your parenting plan so that it takes into account the degree of flexibility (or rigidity) that is right for your
post-divorce bi-nuclear family. However, be sure to
bring it up with your divorce lawyer to make sure that
your preferences are included.
Should your children be involved in your divorce? Until
recently, conventional wisdom -- meted out by divorce
lawyers, judges, and mental health professionals -- was
that children should be kept isolated from their
parents' divorce as much as possible. That conventional
wisdom about children of divorce is now being
challenged. In Australia, new research shows that a
"child inclusive divorce" can provide benefits for
children and parents, although such an approach requires
trained mediators and divorce lawyers. The conventional
wisdom is based on research that exposing children to
the normal conflict in divorce is harmful. Research
shows there is a strong correlation between parents who
expose their children to conflict during their divorce
and problems that their children exhibit -- from lower
grades to increased risk of drug use and even increased
risk of criminal behavior. Because most divorce lawyers
and divorce courts are heavily exposed to divorcing
parents with greater conflict, the conclusion that many
divorce lawyers draw is that the small group of people
who take most of their time are representative. The new
divorce research shows that children who have greater
involvement in their parents' divorce, most notably with
regard to parenting arrangements, can actually do better
than children who are isolated altogether from the
divorce IF certain conditions are met. The children
should still be isolated from parental conflict.
Additionally, the parenting plan (the divorce court
order that provides for custody and visitation), and
what is in the best interests of children, always
remains a decision of the adults, the parents. However,
ensuring that children's views are taken into account in
making parenting plan (custody and visitation) decisions
can help the children feel more secure and adjust better
to the after-divorce life. There is a fine line between
involving children in divorce in a manner that is
beneficial to them and involving them in a way that can
be harmful. For that reason, it is best to get guidance
from qualified professionals who are trained and have
experience in involving children in parenting plans
appropriately. Not all divorce lawyers and therapists
have that training or experience. In a Collaborative
Divorce, the guidance of a child specialist can serve
that role. If you feel that you and your spouse can work
with your children through your divorce, then a
child-inclusive parenting plan may well be worth
exploring.
When you have made the decision to divorce, you likely
are ready to get going and have some decisions made so
you can move on with your post-divorce life. For many
couples, one spouse has made the decision to divorce
before the other has accepted the divorce will happen.
It can take time for the spouse who did not first decide
to divorce to process all the emotions. For the person
who decided to divorce, giving your spouse time to
adjust can be very important. This is difficult to do,
because divorce is often a very uncomfortable and anxiety-laden time in life.
Hence, it can be tempting to try to push hard for a
divorce settlement before your spouse is ready to
address the issues. While bringing up the issue may be
useful, pushing your spouse hard is usually a mistake
that can backfire. Allow your spouse time to process,
and consider some professional help from a mental health
professional to assist. Remember your spouse is likely
to be facing many fears, and at times will not be on
his/her best behavior. What is often helpful is to
reassure your spouse that you are committed to working
with him/her towards a solution that will work for both
of you. When all are ready, provide your spouse with
information so s/he can start thinking about
possibilities. Consider hiring a collaborative divorce
lawyer, and consider mediation to help resolve divorce
issues. Most divorce lawyers advise that several steps are required to make a good decision in a divorce settlement. First, ensure that you have the information you need to make a good settlement decision. This information includes a full exchange of all factual information between you and your spouse (such as all property, income, debt, etc.), getting financial
information to help you gain clarity about your financial
circumstances from the marriage and what in fact exists
for your options for your divorce, and getting other
information that may be relevant to your divorce
settlement. Second, get legal advice from a divorce attorney, and financial advice from a financial professional. In a collaborative divorce, that type of advice is normally included as part of the structure.
The financial and legal advice will help you understand
the implications of your decisions in your divorce, and
bring information to your attention that you otherwise
will likely not have. Third, do not start negotiating your divorce settlement until you understand
both the legal and financial implications of your decisions, which means having the facts and understanding the effects of different alternatives
for your divorce. Divorcing couples who take the time to get good information and financial and legal advice are often surprised about the many things they have not considered, and are usually pleased to have the additional information so they can make better decisions for themselves. Often, this includes
divorce settlement options they have not previously considered. Taking the extra time to
allow your spouse to process the fact of getting
divorce, and then to consider the alternatives, also gives you the opportunity to better think through your decisions, rather than having
some of your most important and lasting decisions made
primarily to reduce short-term anxiety, but at long-term
cost. While going fast during your divorce may be tempting, going slower can often
lead to a faster divorce in the end, by ensuring that you have analyzed the decisions in your divorce methodically and thoroughly, have avoided legal and other missteps, and have made the best decisions for your circumstances so your future is more secure.
We all know that divorce is a major life transition that impacts the family.
Of course, divorce impacts both divorcing spouses and
their children. Most legal services, the focus of
divorce lawyers and judges, and the attention of most
couples is on the spouses and the children. When there
is a divorce, the primary focus is necessarily on the
divorcing couple and their minor children. However, the
impact on the family only starts with the divorcing
couple. While divorce laws mostly do not address other
family members or adult children, and divorce lawyers
rarely pay attention to those other family members
because the law does not focus on them, divorce can
affect the entire extended family and friends. Odds are
that after your divorce, you will continue to see family
members at events, such as graduations, weddings,
holidays, and other events. What happens in your divorce
will likely affect interactions during those events. If
you rely on grandparents or other family members to help
care for your children, is that something you wish to
maintain? While this impact may be disregarded by most
divorce lawyers, you do not have to ignore the
importance of these relationships during your divorce.
The decisions you make while going through a divorce
will impact your relationships into the future.
Regardless of what the laws might say, being a parent
does not end when a child turns 18. Regardless of how
odd it may seem to some, maintaining a working
relationship with in-laws and other family members will
usually be beneficial for you in the future. Because of
common beliefs about divorce, it can be important to
tend to these and other relationships in a divorce.
Conventional divorce lawyers are generally not equipped
to help you work with extended relationships, because
the law does not address relationships and divorce
lawyers generally lack training in this. Most divorce
lawyers self-limit their services to addressing what can
be enforced in court. In a Collaborative Divorce or in
divorce mediation, we realize that some of the most
powerful resolutions may not be legally enforceable, and
you can work on these matters. Divorce law and other law
serves a purpose, but it is not designed to help you in
your relationships. We recommend that you consider a
divorce process and engage a divorce attorney or
mediator who will help you transition in a way that
tries to address your goals for relationships.
When considering a divorce, who are you going to call?
There are many options, and choosing who will be best
able to support you through a major decision in your
life will be important. There are several areas where
support and information can be very helpful. A counselor
is a good place to start. A divorce necessarily has a
strong emotional component, and getting good
professional help can be invaluable. Most divorce
lawyers are not trained in the psychology of divorce,
nor are most of your friends. If you have children,
getting information about children in divorce is a
specialty of child development counselors. For legal
decisions, there is no substitute for a good lawyer
whose practice focuses on divorce. The old saying 'you
do not know what you do not know' applies. Over the last
half century, divorce has become a complex legal field,
and the general practitioner is less likely to be aware
of the many nuances and complexities of divorce law. How
do you know you are selecting the right divorce lawyer
for you? First, meet in person any divorce lawyer you
are considering to hire to see whether you feel the
"fit" is good and whether that lawyer will be able to
offer what you need. Expect your experience to vary
widely from lawyer to lawyer. Notice whether the divorce
lawyer is actually listening to what you are saying, or
whether the divorce lawyer is more interested in telling
you what to do. Which to you prefer? Second, do some
checking of your divorce lawyer. What is his/her
reputation in the community? What is the experience of
the divorce lawyer? Does this particular divorce lawyer
have skills that match your situation? (Not all divorces
are alike.) Is the divorce lawyer active in
organizations that might indicate a commitment to
excellence? Third, does the approach of a candidate
divorce lawyer match your preferred approach? Do his/her
recommendations and explanations make sense to you? If
not, do you feel comfortable asking for clarification,
and is the divorce lawyer then able to provide
clarification? Watch for the little hints. There is no
substitute for asking questions and being observant.
While there is no such thing as perfection, it is worth
the time and effort to find a divorce lawyer with whom
you can work, and to get divorce professionals assisting
you.
Divorce is a stressful time. In a divorce, not only
are you going through a major life transition and the
emotions that accompany the loss of relationship and an
expected future, but your are asked to make decisions
that will have a major impact on your future. Have you
paused to think about how you tend to make decisions
while under stress? In a divorce, that is what your
divorce attorney, others around you, and even yourself
will be asking you to do. Many people make decisions
differently when under stress, and usually those
decisions are not as considered as under more normal
circumstances. In a divorce, it can be useful to think
about how you are thinking. Most experienced divorce
lawyers have seen a variety of decision making styles in
their divorce clients. See if any of the sampling of
possible examples below match you or your spouse:
Are you the type of person who has a difficult time making
any decisions when under stress (such as a divorce)?
Are you the type of person who will pay attention to
anything else to avoid the stress?
Are you the type
of person who tends to blame others when under stress?
Are you the type of person who tends to blame
yourself when under stress or wants to make things okay
so others will be pleased?
Are you the type of person
who just wants to make a decision -- any decision --
just to try to make the stress go away?
Are you the
type of person who wants to take control of a situation
when under stress?
Feel free to substitute “in a divorce” for the word “stress”
in any of these examples. The examples above are an
incomplete list, and none of these (or other) styles is
bad or wrong. What is useful, especially when in a
divorce, is to notice and be aware what your “auto
pilot” tendencies might be. Then, consider how your
style might help or hurt you if that is how you make
important decisions in your divorce. During your divorce, see if you are making decisions
based on that auto pilot or based on a more logical
approach. (Be careful, because when under stress, such
as in a divorce, emotions can sometimes masquerade as if
they are logic.)
If you feel it is possible that you might not make the best
decisions while under stress, then you may want to take
steps during your divorce to try to suspend your normal
decision making style during divorce. That way, you can
help ensure that your thinking brain is making the
decisions in your divorce.
No one wants the short end of
the stick, especially in a divorce. This goes for both
you and your spouse. And while divorce can seem like a contest over who might get the short end, the reality is that
in a divorce no one is going to “win” in a
divorce – unlike the game of a wrestling match, a divorce is a life transition.
The reality of divorce is that there will need to be a future built upon what you have that will suit your situation.
From your divorce lawyer's perspective, that
would normally involve some sort of sharing of assets, debt, income, and time with the kids.
In a divorce, it can be helpful to think back on some
of your major life transitions -- perhaps school
graduation, getting married, having children, or
anything else that helped shape you. All of life's
transitions are part of what brought you to today. If divorce is
also a life transition, then how does this transition fit into the story you
will tell about your life? Even if a divorce is not what
you planned (it rarely is), how might this transition fit into
your life story now that it is happening? How will you make sense of your
divorce, and the actions you took, in the story of who you are?
Your divorce lawyer may try to tell you how he/she thinks a judge will rule; however, in Washington divorces the court has a lot of
discretion, and your divorce lawyer's opinion may be based on the law,
but may also be based on little more than anecdote or
rumor.
Most cases are settled before they get to the court room, and many settlements are
founded on attempts to create shortcuts rather than what
might actually happen in court. But even if based on the
law, the law may not fit your values. If yours is one of the rare
divorces cases goes to trial, the judge will decide not
based on what your divorce attorney might think, but based on what the judge thinks is most equitable.
Often, the judge's decision will not take into
consideration what you consider important, unless the
legal factors happen to overlap the factors that are
important to you. A court divorce may or may not fit your values or desired post-divorce lifestyles.
And, if so, you have received the short end of that
stick.
Instead, take charge of your divorce by taking the time to do a careful self-reflection of what you really want out of life and what your values are
-- not just your feelings today, but your values in
life. That way you can create a divorce process and a
divorce settlement that makes sense as part of the story
of your life. Your spouse will have
his or her own separate wants and values, but what are yours?
Then, explore ways to reach agreements in your divorce that
are consistent with you being able to tell your life
story -- including your divorce -- so that your divorce
story fits cohesively with who you really are.
In Western culture, divorce is a relatively recent
development. Prior to the late 1800s, divorce was not
available in the United States to most people.
Annulments were available through religious
institutions, and the rich and well-connected could get
a divorce by having a private law passed for them in the
state Legislature. Divorce court and divorce lawyers
were unknown until the late 1800s, when legislatures
started to make it available. Not having any institution
set up to handle divorces, divorce ended up in so-called
"courts of equity" where lawyers and judges, whose work
previously was largely limited to criminal, tort
(injury), and business matters suddenly found themselves
working in an area where they had no particular
expertise. Courts of law, by their nature, are designed
to do one thing: create a winner and a loser when
presented with two extreme sides. The premise is that
the "truth" is determinable and that it lies somewhere
in-between two extremes. When the premise of a system is
that the truth lies in-between two extremes, it is no
wonder why divorce lawyers (and parties) sometimes stake
out extreme positions, whether in court or when
negotiating. The other phenomenon is that divorce
lawyers will go to great lengths to try to obtain
evidence that demonstrates why their client's position
is really not so extreme. Judges in divorce court are
aware of this, and not knowing what to believe tend to
discount what they hear unless it is corroborated. What
can be shown on paper then becomes real, and divorce
lawyers will often go to great lengths to make sure that
the paperwork supports their story. With this being the
premise of divorce court, can it be any wonder why
divorcing parties often end up both feeling like they
lost, the legal fees are sky-high, and the parties
relationships with others end up being destroyed? Yet,
that is the reality of old-school divorce, still
practiced by the majority divorce lawyers. A slight
variant of divorce court is trying to set up things to
negotiate from a "position of strength." While perhaps
effective in some circumstances (and even this is
debatable point), trying to bargain "from a position of
strength" assumes a coercive negotiation in which there
will be a winner and a loser, in which the loser will
capitulate when confronted with the winner's strength.
The dynamic is no different than the divorce court
scenario. It almost guarantees that the divorce
settlement negotiation will be coercive, both will end
up feeling they lost when the to-be loser resists and
both end up compromising, the time and legal fees mount,
and the relationships of the parties (between themselves
and with others, such as children, in-laws, and friends)
are strained and damaged in the process. Negotiating
"from a position of strength" is fear-based, because it
assumes that if one does not negotiate from that
supposed position of strength, then the outcome of the
divorce negotiation will be unsatisfactory. This premise
is flawed. By building up positions so there is a
"right" and a "wrong," the likelihood that the outcome
in the divorce settlement will be unsatisfactory is
actually increased. Instead, an honest divorce
negotiation that focuses on the needs, interests, and
legitimacy of all (but not any puffed up positions and
not trying to perpetuate a power struggle between
"right" and "wrong"), the likelihood of a good divorce
settlement is greatly increased. Fortunately, more and
more divorce lawyers are offering such alternatives that
are focused on better outcomes, such as through divorce
mediation and Collaborative Divorce. Old-school divorce
lawyers will often advise their clients
to file motions with the court or to engage in lengthy
and expensive "discovery" (legal procedures to learn
facts) before negotiating; in those few divorce cases
where these legal procedures are necessary, they can be important. However,
these legal procedures are greatly overused, are very costly
and risky in terms of immediate outcome, and adversely affect the ability to reach a
cost-effective or satisfactory divorce settlement. Motions and formal discovery can conspire to make a
divorce even more financially challenging than it otherwise would be.
Building up a "case" before negotiating rather than
working together to gather needed information can create
a similar dynamic. Reaching agreement on
interim points, and voluntarily working together on information is nearly always less expensive,
not to mention more effective in divorce negotiations, than using the more formal court procedures
in a divorce.
Many divorcing couples start off thinking that an
equal or 50-50 property division is normal. Most
divorce lawyers (at least in Washington state) will
tell you otherwise. Many have heard that Washington is
a community property state and that means that only
community property is at stake. Again, that is a myth
in divorce. Contrary to popular belief, Washington
divorce law does not require an equal property
division in divorce, and allows so-called "separate"
property to be divided. In other words, the labels
"community property" and "separate property" can be
misleading because they connote complex legal concepts
and do not necessarily mean what they imply. How can
something other than an equal property division be
allowed in divorce? In Washington, in a divorce the
court divides up all the property (community and
separate) in a "just and equitable" manner considering
several factors. The bread-and-butter of litigating
divorce lawyers is trying to convince a court that
their client's position is "just and equitable."
Generally speaking, Washington divorce courts will
divide property disproportionately if there is a
disparity in the economic circumstances of the
parties. Let's take as an example a couple in their
late 50s who have been married for 30 years, and where
the husband has been a stay-at-home dad. In that case,
it is likely that a court would award more than half
the property to the husband. Ultimately, using a
percentages as the standard for dividing property in
divorce (any percentage) is a bit arbitrary.
Percentages are nothing more than mathematical ratios
that do not take into account the realities of
post-divorce life for the parties. A better approach
may be to review the impact of different property
division scenarios on the divorcing parties. While
this is different from the conventional divorce
lawyer's and judge's measure of "just and equitable"
as is written in Washington law, it is an approach
that can be used to help reach real-world divorce
solutions.
Everyone has life transitions from time to time. If
you are getting a divorce you are in a major life
transition that impacts not only the relationship with
your spouse, but also your finances, housing, friends,
and much more. According to William Bridges, there are
three phases to every successful transition. And,
while many people want to skip ahead, they
short-change themselves and actually do not make a
transition in fundamental ways if they do not allow
themselves to go through each of the phases. According
to Bridges, there is first an ending. In case of a
divorce, it is ending the marriage, the relationship,
and anything else that needs to be let go. The ending
is an emotional release from the past, not just a
change in housing. Then, there is a "neutral zone" to
allow exploration of the situation. The neutral zone
can be a time of bewilderment and is a time of
adjustment. Finally, there is a new beginning. One
implication for people who are divorcing is that it
can be important to truly and deeply conclude the old
relationship prior to starting a new relationship.
Without ending the first relationship, there is a
likelihood of repeating the past unfinished business
from the prior relationship. Most divorce lawyers have
had repeat clients when they entered a new marriage
with too much haste. Most mental health practitioners
recommend taking a minimum of two years after a
divorce is final before starting a new serious
relationship. It takes that much time to end the old
relationship and have the needed neutral zone.
Statistically, there is a much higher divorce rate for
second marriages that occur within that two year
period. And, while your divorce lawyer might like the
repeat business, most clients would prefer to see
their divorce lawyer for only one case.
If you have children and are getting a divorce, one
of the legal documents your lawyer will need to
prepare is a parenting plan. The "parenting plan" is
actually not a plan but a court order, like a divorce
decree, and it has legal consequences and is the order
that essentially decides child custody and visitation.
Your divorce lawyer will be able to explain that part.
Where divorce lawyers generally lack training is in
what it takes to provide an optimal post-divorce
environment for your children. Similarly, few parents
are experts on the impact of divorce on their
children, and in a divorce can be so focused on their
own challenges that it can be difficult to truly
appreciate the great impact their decisions have on
their children. With brains that are not fully
developed and limited experience and knowledge,
children experience the world differently from adults.
The age and development of children is important,
because older children can tolerate things that
younger children cannot. For example, while having
equality in residential time might feel "fair" to
divorcing parents, most implementations of those
decisions may actually be harmful to young children
and create significant problems later. Especially if
the children are very young, such parenting plans can
undermine the child's need for safety, security and
protection, all of which are paramount in raising
well-adjusted children. Young children will lack the
ability to understand what happened to mom or dad when
they are not present (this is sometimes referred to as
"object constancy"). As children get older (generally
age 3 and older absent psychological developmental
delay), they can better tolerate parenting
plans where they are apart from each parent for longer
periods of time. Prior to preparing or negotiating a
parenting plan, it is well worth getting input from a
mental health professional whose area of focus is
children and who is well-versed in the impact of
attachment. A good parenting plan will take the normal
and healthy changes of children into account, to
thereby optimize the experiences of the children and
the parents. On request, and with your directive to do
so, your divorce lawyers can prepare a parenting plan
that does just that and which also takes into account
the important legal consideration.
Here's a question: You've decided that you'd like a Collaborative Divorce. You call a
divorce lawyer, and she tells you that she is very collaborative and
she settles
most of her cases. Now the question: Have you found a
divorce lawyer who will provide you with a Collaborative Divorce?
Sadly, it is quite possible you have not. Many
confuse the term "Collaborative Divorce" with merely
acting friendly, or trying to reach an agreement.
While no one can take issue with being friendly or
trying to reach agreement, the Collaborative Divorce
process has certain attributes that make it much more
than being nice; instead, it deploys different tools
to help you reach agreement. And, there are still some
divorce lawyers who do not yet understand the
difference, so caveat emptor. The hallmark of
Collaborative Divorce is the so-called
"disqualification agreement" which ensures that 100%
of your divorce lawyer's efforts are focused on
helping you reach a divorce agreement. With the
"disqualification agreement," the divorce lawyers are
hired for the sole purpose of helping you reach
agreement. Moreover, to do so, the divorce attorneys
asked to put down their traditional legal weaponry, so
that the process becomes non-coercive. If, despite
everyone's efforts, an agreement is not reached, then
both parties need to get different divorce lawyers.
Neither party may go to court unilaterally. And, that
is put in writing. Only a divorce process with a
"disqualification agreement" is a Collaborative
Divorce. The positive impacts of the disqualification
agreement on divorce negotiations are quite
significant. The disqualification agreement is a way
for everyone to signal that they are seriously
interested in reaching a divorce settlement. If your
spouse (and his/her divorce lawyer) is willing to work
in a Collaborative Divorce with you, s/he is telling
you that s/he is serious about reaching an agreement.
To work effectively in a Collaborative Divorce, the
divorce lawyers do best if they learn and master new
and different skills. After all, the skills of legal
warfare are not likely to be effective when they
process does not allow them to be used. Collaborative
Divorce is not for everyone, and it is a highly
effective divorce process for many. If a divorce
lawyer tells you that she can provide a Collaborative
Divorce, ask if she has been trained in the process,
whether the divorce will include a disqualification
agreement, and whether the divorce lawyer is part of
any Collaborative Divorce organizations, such as the
International Academy of Collaborative Professionals.
If your divorce lawyer can say "yes" to all of these
questions, then she can offer a Collaborative Divorce.
When going through a divorce, the odds are pretty
good that your spouse has not behaved in a way you
expected or wished. Perhaps behaving differently than
you expected is new or perhaps it was typical.
Regardless, it is pretty common to feel frustrated with your spouse
when going through divorce. The way you (and your
divorce lawyer) behaves in response to your
frustration can have a profound impact on your future
and on your children. Some people want to try to force
a misbehaving spouse to behave. They can file divorce
proceedings, have their divorce lawyer prepare court
motions, and even go to trial in divorce court. The
odds are that those attempts will be resisted in
whatever way your spouse tends to resist. He or she
may file a divorce lawyer to try to undo what you are
trying to accomplish. Even if you are successful,
court orders can be viewed as pieces of paper and if
violated, it likely means more expensive attorney's
fee because it will be up to you to try to seek
enforcement. Any experienced divorce lawyer will have
tales about parties who did not comply with court
orders, and where attempts to enforce court orders
were not successful. Even if followed to the letter,
if embittered your ex may try to subtly undermine what
you tried to accomplish. While trying to force someone
to behave a certain can certainly seem tempting, often
the smarter approach is to allow the other person
enough space so that they will themselves show up
because it makes sense to them. Doing so means working
towards a mutual agreement, which can be challenging
when faced with a reluctant participant. While the
path towards agreement may feel less certain, with
skilled assistance during divorce, the vast majority
of divorcing couples are able to reach agreements.
Assistance from a skilled divorce mediator or divorce
lawyers who have been trained in mediation techniques
with the goal of reaching a mutually acceptable
divorce settlement is key. Collaborative Divorce and
divorce mediation are two processes that provide a
different approach from trying to force an outcome
only to face resistance.
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