Family Law Articles

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

Divorce mediation without the divorce

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

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

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

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

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

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

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

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

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

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

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

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

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Mediation attorney: I’m proud of my clients

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

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

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

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

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

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

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

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

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

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

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

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The call divorce lawyers dread

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

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

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

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

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

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

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

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

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

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

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

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How collaborative divorce is better

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

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

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

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

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

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

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

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

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

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

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

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

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More on why a neutral financial expert favors divorcing couples

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

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

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

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

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

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

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

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

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

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

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Having a neutral financial expert favors divorcing couples

Collaborative divorce and mediation provide couples the opportunity to customize the terms of their divorce to meet the current and immediate future needs of their family. Retaining a neutral financial expert and working with him/her offers an even better opportunity for couples to tailor an agreement that meets those needs.

What exactly is a neutral financial expert? It’s a finance professional, often a CPA or a financial planner, who has also undergone training on issues particular to divorce and dispute resolution. So while couples may work with a financial professional to prepare their taxes or help them make investment decisions,  it’s not the same as the neutral financial professional in divorce negotiations.

In most litigation cases, the financial details usually follow a formula. For the division of assets, everything is added up and then divided in two at the time of the divorce, child support follows the child support guidelines and alimony follows the alimony reform act. Sometimes, however, these formulas do not meet the needs of the family.  Working with a neutral financial expert as part a collaborative divorce process or mediation offers flexibility that is usually not be available in litigation.

An example of this occurred during one of my recent collaborative divorces.  Both spouses wanted to preserve the marital home for a period of time for the children. The spouse who was to remain in the home could not afford to pay the bills on her own, even with the child support. The other spouse had a living arrangement for the next few years with very low costs.

Working with the financial expert, the couple came up with an innovative solution that achieved their objective. The sale of the house was delayed for a period of two years. Instead of the noncustodial spouse paying child support or alimony, the parties divided up their financial responsibilities for their respective housing expenses, household expense, children’s expenses and marital debt so that at the end of every month each of them had the same amount of disposable income. The agreement factored in the taxes that each spouse would pay and the deductions that each would be entitled to claim.  It also included language with regard to unexpected expenses (those would be split between them) and the earlier sale of the property if unexpected contingencies arose, such as the noncustodial spouse losing the low-cost housing.

As you can probably gather, this type of arrangement would have been very difficult for the couple to come up with on their own. It involves complex budgets, expense analysis and tax projections, as well as exploring/creating a number of financial solutions for the couple to consider. This kind of negotiation required a specialist who not only possessed the expertise, but was working for both parties. I feel very confident in saying an agreement like this would be extremely unlikely to occur as part of litigation.

What makes use of a neutral financial expert even more desirable lies in the effect it has on the entire negotiation. The financial expert is part of the problem-solving team and he or she strives to generate options for the couple. This engages spouses to be an active part of this solution. What this really does is lay the foundation of their future relationship. By actively problem-solving together, they are learning to communicate in a collaborative and constructive fashion. Each now has a conscious and subconscious example of how to effectively communicate with each other. That can only benefit the relationship with each other and, if applicable, their children. Besides being a more pleasant situation, it has the power to eliminate future trips to court as they have learned how to communicate with each other.

In our next blog, we will explore additional scenarios where a neutral financial expert made all the difference in the world.

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Collaborative divorce has emotional benefits

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

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

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

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

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

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

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

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

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

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

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

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The many layers of divorcing your business partner/spouse

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

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

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

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

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

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

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

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

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

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

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

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How to convince your spouse on a collaborative divorce?

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

Why?

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

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

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

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

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

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

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

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

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Addressing the gray areas of a gray divorce

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

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

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

I think you know the answer to that.

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

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

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

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

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

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

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

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

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

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