RECONCILIATION POSSIBILITIES Through collaborative law - DIVORCE OPTIONS AND ALTERNATIVES

Can collaborative law help me reconcile with my partner?

It can give you a chance.  collaborative law gives you a “peace tent” and therefore an opportunity to discuss reconciliation as well as divorce.  Texas Law allows for a “discernment counselor”-that is, a counselor can be used by the parties to help them determine whether reconciliation makes sense for them.  Although this Texas Family Code Statute has been around for a while, training for reconciliation counselors is limited.  Currently there is a “Reconciliation Project” in Minnesota experimenting with this training.  In Texas, there is no formal project but there are efforts being made by individual attorneys such as Steve Campos in Austin and myself.  I am exploring training with Houston therapists at this time.

What are the major differences between reconciliation in collaborative law and in a traditional court case? In collaborative law, you don’t have the fear of a hearing coming down the pike or a judge not granting the counseling.  You and your spouse can also take your time to decide, because you have two years to keep your case alive before it must be tried or dismissed.  You don’t have the pressure of a quick trial setting, which will come in four to eight months in most divorce court cases.  That can put a lot of heat on a marriage that is considering staying together.

Does my spouse have to want to reconcile too? Yes. Although some experts say it only takes one person to save a marriage, in collaborative law, each of you has equal bargaining power.  At the beginning of almost all divorces, one partner wants the divorce and one does not or at least wants the divorce less.  It may be that your spouse doesn’t want reconciliation now, but may be open to “discernment counseling” to see if an objective person thinks your marriage can be saved.  But ultimately, it will take both of you to keep your marriage together.

Will all collaborative lawyers be familiar with these reconciliation techniques?  No.  This effort is new.  If you or your spouse is interested, discuss this desire with your collaborative lawyer and have her contact Bill Doherty in Minnesota or me in Houston.  But all collaborative lawyers should be willing to be open to the possibility.  If there’s a multidisciplinary team, including a mental heath professional, have your lawyer discuss it with the full team. There is no ìone-size fits allî reconciliation, and these highly trained communication and financial coaches can be helpful.

There’s been an affair. Can I reconcile through collaborative law? Yes. Affairs are not death sentences to successful reconciliation. Affairs, although very hard on a marriage, are often a symptom not a cause. If you as a couple are willing to work though this difficult situation, your marriage can become the envy of your friends’ marriages.  But it will not be easy.  And if one of you is a sex addict, or has some other mental health problem, then that person will have their own therapy to do for perhaps a year before the marriage counseling can begin.

What if we find a reconciliation counselor or coach who says our relationship has a chance.  Then what?  If both of you are willing, a reconciliation counselor, or traditional marriage therapist can help.  If only one of you wants to try to salvage the marriage, then you will likely end up pursuing a divorce. But if you are part of a community such as a church, mosque, or synagogue then that community may end up contacting the unwilling spouse to encourage marriage counseling itself. They may say “We heard that the discernment counselor said your marriage is retrievable; why don't you work on your marriage now?”

What if financial issues are our biggest problem?  Will collaborative law give us a better chance than the courtroom for learning the skills to handle our financial disputes better?  Why? Courts provide you virtually no opportunity to learn financial skills and the communication required to make those skills work. Some couples create a marital, or “post-nuptial” agreement that includes not only  financial matters, but also agreements on how to work on and maintain the marriage.  The collaborative process provides an excellent opportunity to negotiate such an agreement.  See previous blogs on this site for more information on “interest-based negotiation” used in collaborative law.

Can family violence be looked at in the reconciliation/collaborative model? Perhaps. Family violence varies greatly from one family to another.  But keep in mind that family violence, especially physical or sex abuse can be very serious and you should proceed very cautiously if you want to stay together.  The victim of family violence has every right to pursue the divorce and should never be talked out of it.

If I am interested in reconciling with my partner. . .Why is collaborative law better for me? Because if you have come this far your partner probably wants the divorce.  If you go to court, you will likely lose almost all chance of keeping the marriage together.  Most judges know almost nothing about reconciliation, and once the cycle of poor communication and conflict management is made worse by litigation, there will likely be no way back. Unless the Texas legislature enacts legislation requiring marriage education in almost all divorces, collaborative law will probably give you the best chance to make your marriage work.  And most importantly, collaborative law gives you an excellent opportunity to create a "marriage contract" or even a temporary order that sets out what work you will do on the marriage.  For example that contract can say that you will go to a particular marriage counselor for 90 days, for a total of 10 times.  You can then return to your collaborative law setting to discuss how your reconciliation effort is going.

What if I just want a divorce, Collaborative Style? Then by all means, get one.  Reconciliation is a very personal matter, as is divorce, and no one should make you stay with your spouse if you do not want to.  collaborative law was developed to give you a more dignified way to get divorced, not stay together, and let’s not forget that.  Working on your marriage is just an alternative to divorce, not a requirement.

Why do new parents need wills?  For one thing, with a child, without a trust within the will, if either parent dies and leaves property to a child, a gaurdian will have to file a report with the court every year until the child reaches 18.  Secondly, the new parents need to communicate through their estate planning how they want their propery distributed.  Thirdly, if both parents die, their wills can state whom they want to raise their children. Fourthly, if the parents want their estate to be confidential, then they need a revocable living trust.  Finally, if together their joint estates are valued at $1 million total, then they either need a marital deduction clause or a life insurance trust.  That is because as of Jan. 1, 2011, all esates > $1 mill. are subject to the estate tax.  The cost and time to file reports every year is high, and estate taxes are very high - as high as 55%.

I also recommend a "couple checkup" for all new or expectant parents.  Everyone knows while children always bring joy, they also bring changes to new parents' relationship as a couple.  www.couplecheckup.com is a great couples' checkup and for a limited time, Hiller and Associates is offering this checkup free if the new parents have at least a simple will package done with Hiller and Associates.

While it may seem strange that a law firm is offering a couples' checkup, Hiller & Associates are full service family and estate lawyers and marriage coaches and want to be sure all couples are given the best opportunity to succeed in their marriage and financially.

1. Consider filing for a divorce without a lawyer

You can file for a divorce without a lawyer in Texas.  There are websites and books

that can show you how to do that.  If you have no kids and no property, maybe

it’s a good idea.  But if you have kids or property – one, two, or three children, car,

or bank account, or retirement, or home – you may want to think about hiring a

lawyer.  Look, lawyers can be expensive, but they don’t have to be.  The first way

to keep your lawyer’s cost down is to come to an agreement with your spouse.

Before that, I recommend a consultation – whether free or $300.00, that consult

is worth it.  You will learn what to include in your agreement and what not to

include.  Then you and your lawyer can agree on an uncontested “case fee.”

2. Know when to need divorce help from a lawyer

You want your divorce to be less of a negative impact on your children.  Your kids

may not get the right amount of child support.  For example, the child support

payor may be paid twice a month or bi-weekly, may have bonuses, may have a

new job.  A lawyer can help you figure this out – you may be paying too much or

receiving too little.    Your lawyer will know how to calculate child support.  Being

off by just $20.00 a week can cost you thousands over the child’s life.

Your visitation schedule may not be enforceable.  If your visitation, possession,

or parenting schedule is not specific enough, you and your ex may fight for years

and the judge won’t be able to help you.  Your lawyer will know how to write up

the decree.  In Texas it needs to be very specific.

Your home or other property may not be transferred properly.  With real estate,

your decree or deed between you and your husband/wife will need to be recorded

at the courthouse.  If you divide a company retirement plan, it will need to be

done by a QDRO, that is acceptable by the company’s retirement department.

These are just some of the reasons why you should seek a lawyer’s help if you have

kids or property.  There are many others, including – getting help with moving

your kids to another state without your ex’s permission.  Your decree has to be

written properly to protect you and your children so you can move or so your ex-

spouse can’t move your kids.  So please consider a lawyer.  The cost now will be

worth it later.

(Full Disclaimer - See Report’s Last Page)

3. Have your lawyer do a marriage contract and work on the

marriage for 90 days

Clients are often looking for a quickie divorce.  Many of you want to know if you

can file your own divorce.  But before you file at all – ask yourself – can my spouse

and I learn to get along?  If your problems are mostly caused by one person’s bad

behavior – drugs, cheating, beating, you either need to end the marriage or THEY

need help.  You can’t work on the marriage until that spouse solves that problem.

But if you have one of the usual 5 “hot button” problems – sex, family of origin,

work, money, and kids – then you need to learn skills-conflict management,

communication, and other healthy relationship skills – sign a contract with a

marriage educator to learn and practice these skills for 90-120 days.  If your lawyer

can’t help you with this, then he or she is behind the times – for more information

contact Michael Hiller – “Reconciliation Law” creator.   Your lawyer can be your

mediator to help keep the marriage stay together – he or she needs to be trained

in marriage mediation – they will sit with you and your spouse and become your

marriage coach and help you resolve your conflict and learn communication

skills.  After a 10 hour session, or 5 two hour sessions, they will write up your plan

that can be followed up for 90-120 days.  If your marriage doesn’t work out, have

them mediate the divorce.  Your lawyer has now become your mediator and can

mediate the divorce if the marriage can’t be saved.  He or she can help you come

to terms on all issues – and you don’t have to both have attorneys.  When it’s over,

you can take your agreement to court for the judge’s signature.  You want your

decision to be less of a negative impact on your children.

4. If you file for divorce, get to court quickly.

Too many people drag their cases out once the decision to divorce or go for custody

or child support is made, you want to get in and out of the courthouse quickly.

An uncontested divorce can happen in 60 days.  Contested cases take longer.

But if you need a hearing, get to court quickly.  Many cases require mediation,

especially in Texas.  Get the mediation done ASAP, don’t let “discovery” bog you

down.  (That’s why it’s called the “discovery money pit” – lots of documents and

requests go back and forth between the lawyers and not much gets done usually).

5. Try collaborative divorce.

If you own anything at all or have kids, consider collaborative divorce.  Collaborative

law is when you, your spouse, and your lawyers agree that y’all will work together

to resolve your case.  Your lawyers are committed to that concept.  The case

doesn’t settle, the lawyers are out of a job – you have to get new lawyers – so they

won’t give up so easily.  You and your spouse will have several sessions where

you decide on a temporary arrangement, a parenting plan, evaluate and divide

property.  You may even have coaches that keep the peace and help you with

finances.  These coaches can actually reduce the cost emotionally and financially

– they are less expensive than lawyers and are trained in communication skills

and finances.  Complete disclosure and respectful behavior are required, so not

all parties can do collaborative law.  Both clients must be reasonably honest to do

collaborative law.

6. If you have a custody case, have your lawyer set a hearing ASAP,

and get your case heard.

Again, cases tend to drag on and on.  Judges go on vacation and clients wind

up in the hospital.  You do need investigations and to discover things, but get to

the court as quickly as possible.  If you can’t be heard that day, have your lawyer

reset the case.  In Texas, the first hearing is really important, especially in divorces.

It often determines the final outcome.  Custody cases can be very expensive.

Consider how bad your spouse is as a parent before fighting hard.  Compromise

wherever you can, either through collaborative law or mediation.  We even have

jury cases for custody in Texas, but they are expensive and time consuming, so be

sure you can afford them.

7. If you’re going to negotiate, set a time limit for the hours your

lawyer spends

Most clients want to resolve their family cases without going to court – but there

is a cost to the time your lawyer negotiates.  Please be sure that you set a limit

on how many hours your family law lawyer negotiates.  In all court cases, you

have the right to have your case tried, at least in Texas.  You may have to go to

mediation, but even that can be half a day.   Whatever you do, be efficient and

prepared.

8. divorce, child support, and custody are major purchases.  Decide

what you can afford and give your lawyer your budget.

Your retainer can be $1,500.00 to $15,000.00 or more.  Some lawyers take a low

retainer then send you a huge bill.  If all you can spend is $1,000, tell your lawyer.

If you want a big fight, be prepared to pay for it.  Most divorce lawyers take credit

cards.  Ask – “what is the most efficient way to get my case resolved?” – and insist

upon an answer.  Communicate regularly about your case expectations and

budget.  Try for a flat fee, or series of flat fees for different aspects of the case.

Be clear and have your lawyer be clear – and remember the better you and your

partner get along, even in a divorce, the lower your bill.

9. If you have tons of money, get a prenup, do whatever you want,

and and remember your kids.

Many wealthy people want good relationships, but are too busy to have them.

Money becomes the focus.  There are romantic prenups, but your lawyer has to

know how to do them (you add “marriage booster” clauses).  First, protect your

assets then provide for the non-married spouse – the longer the marriage, the

greater the provision.  If you are very wealthy and live in Houston, TX, or any wealthy

city, you will likely go to a handful of powerful attorneys.  But do they really have

your best interest at heart?  Your kids’ interest?  Do they do collaborative law?  Do

they try your case for their fame and your fortune, or for your best interest?  They

might be needed sometimes, but I fully recommend collaborative law for wealthy

folks and anyone who has kids, property, and is reasonably honest.

Disclaimer:

This Report does not establish an attorney-client    relationship, but instead provides general education and

information.  Hiller and Associates only practices law in Texas.  Any information provided may or may not apply

in your state or situation.  To establish an attormey-client relationship with Hiller and Assoc., P.C., please contact

them directly through their website for a consultation and signed retainer agreement - www.hillerlaw.com