Wednesday, January 30, 2013

What can Star Trek teach us about Collaborative Divorce?

Image from Wikipedia
Two of my favorite articles regarding leadership were written by Alex Knapp of Forbes:  Five Leadership Lessons From James T. Kirk; and Five Leadership Lessons From Jean-Luc Picard.  While both captains were very different leaders, and each definitely has their own devoted cult following, there were still similarities in how they led.  For example, Alex points out that Captain Kirk surrounded himself with advisers who had different world views, and that Captain Picard was willing to ask for help when he needed it (whether from advisers or even sometimes from his opponents).

What can these leadership qualities teach us about Collaborative Divorce?

Ultimately when we are assisting divorcing couples, whether through the court process or through negotiation, we are leading them through a complicated and emotional process.  As leaders in this role we should be considering what types of leaders we want to be.  Particularly in Collaborative Divorce where the process is designed to model better communication for the divorcing couple, we are leading these couples through each step of the divorce process as a team.  The collaborative attorney is still the leader on legal issues, but we also involve a collaborative coach to help lead the emotional discussions and guide communication, and a financial expert to help lead the financial planning and summary.

Often attorneys have difficulty letting go of some of their power in these roles, and in fact many attorneys (even those who have been Collaboratively trained) refuse to involve coaches in their cases.  But this choice assumes that we can lead a divorce case without any help.  Just like Captains Kirk and Picard, attorneys need to recognize that sometimes we need help.  In order to effectively lead divorce clients through emotional and financial issues we should make use of the right advisors for these roles.

Does good leadership require the use of advisors?

Ever since Netflix Instant watch obtained all of the Star Trek television episodes, I have been re-watching both the Original Series (TOS) and The Next Generation (TNG).  Despite the fact that my wife is still resistant to liking Star Trek, she has been watching it with me and, of course, commenting on various observations including how ridiculous both shows look today.  We also recently discussed one of the striking differences between the two series: the presence of Deanna Troi, ship's counselor, on the bridge.

While Captain Kirk had Spock and Dr. McCoy as his trusted advisors, TNG took the concept one step further by having a mental health practitioner as an advisor, and a woman no less.  While Dr. McCoy was quick to point out that his skills were mainly as a doctor, damn-it, he was still a commissioned officer and a very masculine perspective.  Captain Picard, however, constantly asks for advice from a woman who isn't an officer (at least not until  later episodes) and who is so focused specifically on the emotional side of negotiation that she literally feels the emotions of those around her.

In the same way that Star Trek evolved to recognize the importance of emotions and the female perspective in leadership decision making and negotiation, the process of getting divorced must evolve as well.  There is no negotiation that is more likely to involve strong emotions and feelings than a divorce case.  So why do lawyers think they can guide clients through that minefield without help?

In my experience, many lawyers will try to avoid the emotional issues by simply recommending that their clients also see a therapist.  That disconnects the legal process from the emotional one, and as any good negotiator will tell you, it is not possible to fully disconnect one's emotional and rational interests in a negotiation.  Indeed, having and facing the conflicts that happen in a divorce case can often be an integral part of finding solutions.  This is a concept explored in a lecture from Collaborative attorney, Neil Denny, about How to Enable Conflict.

Since lawyers aren't trained to enable conflict, or manage communication and emotions, the Collaborative process is designed to bring an expert in those fields to the table: the Coach.  Divorce will get easier for clients when more lawyers realize the value of including a coach to advise clients on dealing with the emotional portion of conflict in real time, i.e. during the negotiation.

So if you are a spouse facing divorce, or a lawyer who helps clients through their divorce, the next time someone suggests using a coach or financial planner to help, don't think of it as a negative that the lawyer can't fill all those roles.  Instead, picture yourself on the bridge of a starship, facing down a force that seems more powerful than you.  Are you alone on that bridge?  Or is your trusted advisor sitting in the chair next to you, helping you to be a better leader?

Thursday, January 24, 2013

What does a Collaborative Law Financial Neutral Do?

Guest Post Introduction: Jessie L. Foster, CFP®, CDFA™, MBA is a Collaborative Law Financial Professional who works with clients and their attorneys to fully understand the financial complexities surrounding divorce. She offers comprehensive analysis of the short-term and long-term impacts of proposed divorce settlements that may impact clients and their families well beyond divorce. Ms. Foster serves as Chair of the Massachusetts Collaborative Law Council (MCLC), Members Meeting Committee and is a member of The International Academy of Collaborative Professionals, the Divorce Center and The Massachusetts Council of Family Mediation.

What does a Collaborative Law Financial Neutral Do?
By Jessie L. Foster, CFP®, CDFA™, MBA

Financial issues in divorce are complex and the decisions a couple makes as part of the divorce process may be some of the most important fiscal decisions they will make in their lifetime. On the Collaborative Divorce Team the financial professional is a neutral who works with both spouses and their attorneys. They help to answer questions such as:

  • Can I afford to keep the marital home? 
  • Is it more tax efficient to pay/receive child support or spousal support? 
  • What is the value of a pension and can you divide it? 
  • How do we equalize our after tax income?

A Financial Neutral helps clients determine the short term and long term financial impact of any proposed divorce settlement. They will provide valuable information on financial issues that are related to the divorce, such as tax consequences, dividing retirement plans, continued health care coverage, stock option elections and much more. During negotiations, a Financial Neutral can assess the budgetary and tax impact of spousal and child support. They will prepare schedules that project cash flows, net worth, and tax effects of proposed settlements. Putting that information in language you can understand helps you take the next steps. If one spouse is less financially savvy, a Financial Neutral may be asked to educate one or both spouses to keep negotiations on an equal footing.

Often times, negotiations break down because of financial issues and can lead to litigation. A Financial Neutral can help to provide a thorough financial picture and show realistic solutions that set a positive tone for productive discussions, thus allowing the collaborative process to move forward more efficiently and cost effective.

Everyone’s financial needs and goals are different. Every divorce is unique. A Financial Neutral can help guide decision-making and problem-solving on one or more of the financial issues related to your divorce, including:

  • Tax issues Property division
  • Health care insurance
  • Retirement and pension plans
  • Social security
  • Property and business interests
  • Cash flow analysis
  • Budget analysis
  • Lifestyle/living expense analysis
  • Credits and reimbursements
  • Debt pay-off

  • Life Insurance
  • Employee benefits
  • Children’s education/special needs
  • Separate vs. marital property
  • Spousal and child support
  • Recalculate support per agreement 
  • or change in circumstances
  • Stock options
  • Separate property claims
  • Sell vs. keep personal residence

Divorce is a highly emotional process that has legal and financial ramifications that can be devastating. But with proper planning and expert help from professionals specializing in collaborative resolutions, you can increase your chances of arriving at a settlement that is financially equitable.

Tuesday, January 8, 2013

The Violence Against Women Act: What is it and why should Congress renew it?

In 1994, the United States Congress enacted the Violence Against Women Act, which was the first U.S. federal legislation criminalizing domestic violence and sexual assault, and assigned federal resources to combat violence against women on a community level.  It was reauthorized in 2000, and again in 2005 (read the text of the 2005 version).  The 2005 version which recently expired, also addressed dating violence and stalking, expanded services to include children and teenagers, and established funding for rape crisis centers.

Since this legislation was recently allowed to expire by Congress, it's important that you know what we are losing and why it was allowed to expire.  If after reading about the benefits of this Act and the reasoning for letting it expire you think Congress made a mistake by not renewing the Violence Against Women Act, then we encourage you to contact your representatives and tell them your opinion.

The Violence Against Women Act - What it Does:

The Violence Against Women Act aims to reduce violence and the impacts of violence through the funding of services and through the criminalization, on the federal level, of such acts.

The criminal provisions include strengthening federal penalties for repeat sex offenders and a number of provisions intended to reduce the impact of the criminal justice system on victims.  The provisions that favor the rights of victims include requiring recognition of protective orders across state borders, prohibiting charging victims for rape exams or the service of protective orders, and the creation of a federal "rape shield law."  Rape shield laws prevent defendants from using the sexual history of victims against them at rape trials.

Since rape is often unreported, these types of victim protections are necessary to encourage victims to participate in the prosecution of these crimes and to simultaneously reduce the continuing impact that this violence has on the life of the victims.

Part of the funding provisions also relate directly to criminal enforcement.  The Act funds training for police, prosecutors and judges so that they understand the impact and realities of domestic and sexual violence, and helps fund dedicated units for enforcement and prosecution of these crimes.  Without these additional resources many law enforcement and prosecution units will not be able to make arrests and properly prosecute these crimes in a timely manner.

In addition, the Act funds services which directly impact victims.  For example, the Act established and provides funding for the National Domestic Violence Hotline, which handles over 22,000 calls per month.

The Violence Against Women Act - How has it Helped:

In addition to the significant number of victims and potential victims served by the hotline, the Act has helped any victim who was protected by criminal justice provisions both at the federal and state level since 1994.  The Act has led to the reform of laws in all states relating to domestic and sexual violence, stalking, and criminal violations for violations of protective orders.  In Massachusetts, these laws and resources are summarized on the Massachusetts Trial Court Law Libraries page.

Statistically since the enactment of the Act, there have been lower rates of domestic violence (a 67% reduction in intimate partner violence from 1993 to 2010).  This has also resulted in a reduction in intimate partner homicides (a 35% decrease in the murder of women and 46% reduction in the murder of men from 1993 to 2007).

But statistics don't tell the whole story.  Every act of violence that didn't occur because of the training and funding provided by the Act is a victim whose life is immeasurably improved.  And every victim who experience an improved and more effective criminal justice system, is one more victim whose trauma was reduced.

The Violence Against Women Act - Why did it Expire:

So you might be asking yourself, who would be against these improvements in the life of victims and potential victims?

In April 2012, the U.S. Senate voted to reauthorize the Act.  However, the House of Representatives passed an amended version which omitted certain provisions of the Senate version.    The Senate bill included provisions that would extend the protections of the Act to include members of the LGBT community, Native Americans living on reservations, and illegal immigrants.  The House (primarily the Republican representatives) essentially forced the expiration of the Act by refusing to compromise on these provisions.

On the one hand, you might wonder why the Act couldn't be renewed without these provisions and then these portions fought out separately.  On the other hand, you might also wonder what's objectionable about adding protections for traditionally under-served groups (rates of violence amount the LGBT community, Native Americans, and illegal immigrants are all higher than the rest of the population, and all less likely to be prosecuted).

At the end of the day, the most troubling of all is Congress playing chicken with itself over such an important and impactful issue.  A Congress that was dedicated to protecting families, children, and victims would not let this Act expire.

If you're as outraged as we are, then tell your representatives that you favor protecting women and families and children, regardless of where they live, or how they got here, or who they live with. Contact your representatives and tell them that it's not okay for Congress to ignore victims.

Thursday, January 3, 2013

What should have stayed in Vegas! - Real Life Hangover

In a recent opinion, in which the Massachusetts Appeals Court affirmed the trial court's divorce judgment, a very expensive bachelor party in Las Vegas turned into an even more expensive divorce.

In a marriage as short as Frank the Tank's marriage in Old School (and 21 days shorter than Kim Kardashian's second marriage), a physician ended up paying one year of alimony for a two month marriage.

The story-line of T.E. v. A.O is right out of the movies involving a husband who went to Las Vegas five days before his wedding in October 2008 and while there charged over $20,000 at a "men's club" and met a woman who he then began an intimate relationship with.  Upon his return from Las Vegas, the parties were married on October 4, 2008 in a wedding that cost approximately $150,000.  In clear violation of the Vegas marketing campaign, soon after the wedding, the wife learned of the extravagant Las Vegas charges and of the husband's ongoing relationship with the woman he met in Las Vegas.  Ultimately this discovery led to the breakdown of their marriage and a trip to Massachusetts divorce court.

Prior to the Alimony Reform Act of 2011, alimony in Massachusetts was governed by M.G.L. c. 208 s. 34, which considered numerous factors in awarding alimony including conduct of the parties during the marriage.  Although, in the case of T.E. v. A.O. the most significant conduct in the case occurred prior to the marriage (about 5 days before in Las Vegas), the trial court gave considerable weight to the effect this conduct had on the wife and the ongoing effect of the husband's relationship with the woman he met in Las Vegas.  He eventually moved to California to be closer to her (and presumably farther away from his failed marriage).

In determining an appropriate division of assets and alimony in this very short-term marriage, the trial court judge stated that "[b]ut for the issue raised by [the] wife about her health, this would be an appropriate case to return each party to status quo ante by having them keep their separate assets and separate income."  The Judge therefore ordered the husband to make a one-time payment of $29,500 accounting for moneys lost by the wife in selling her condo and other costs of separating, and one year of alimony at $2,100 per month.

The husband appealed claiming the Judge too heavily weighed the wife's health as a factor and the wife appealed claiming the Judge should not have limited the alimony to one year.  The appeals court, not surprisingly, upheld the trial court's decision based on the great amount of discretion afforded the trial court by the property division and alimony statutes.  While durational limits were often a problem under the old alimony statute, the court found that this limit was reasonable (and in light of the new statute where limits are more common, this is not surprising either).

Both parties also appealed the property division and were denied as well in the appeals court decision which was made on October 9, 2012 (four years after the initial indiscretion).

Here are just a few lessons, to take into the new year, that we think couples can learn from T.E. v. A.O.:

1.  Even a two-month marriage can result in a four-year court battle if you choose litigation over other, better, forms of dispute resolution (such as mediation or collaborative law), and

2.  Judges have broad discretion to make far-reaching decisions about your life in divorce cases, when you fail to settle those issues yourself, and

3.  The Appeals Court often upholds that broad discretion, and

4.  Spouses who leave their divorce decisions up to a Judge are often both unhappy with the result, and

5.  Of course, What Happens in Vegas, really should Stay in Vegas.

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