Sunday, April 30, 2017

How does a Divorce end? 😡, ☹️, or 🙂

There are three typical ways a divorce process can end: Reconciliation, Judgment, or Settlement.  Very few cases reconcile once a divorce process is started, and very few cases go all the way to Judgment.  In other words, most divorce cases settle, either before going to court, or at some time during the court process.  But settlement takes lots of different forms, and those different forms can have a significant impact on whether people feel good about their settlement or not.

Many clients and potential clients have asked me if there is any statistical research on outcomes for different processes, or even whether there is any data on whether a particular process is considered more "successful" than other options.  Unfortunately, I am not aware of any large scale study comparing Mediation, Collaborative Law, Arbitration, Self-Help Negotiation and Litigation, or even anything close to comprehensive.  There is some research comparing mediation and litigation, but not much else.

In the absence of analytical data, all I can share with clients and potential clients is my own experience working with divorcing clients.  I have helped people divorce through litigation, through negotiated settlement, through mediation, and through the collaborative law process.   I can state with certainty that in my experience clients who settled via mediation and collaborative law were more satisfied with their outcomes than my litigation clients, and it is the primary reason we have transitioned our primary practice areas to these dispute resolution processes.

I think one recent story about a Collaborative Divorce case I was involved in, highlights this difference:

I recently attended an uncontested divorce hearing with my client to present to the court a settlement agreement reached through the collaborative process, and something amazing happened after the hearing.  This was a very complicated case and the client had first entered my office three years before.  He knew from the start that he wanted to work outside of court to reach a settlement with his wife, but that doesn't mean it was easy.

The case involved very complicated assets, legally and financially complicated issues over inheritance, and many emotional ups-and-downs between the clients.  We had over 30 different revision versions of a separation agreement.  Despite all of that, we did reach a final settlement, and all this history made what happened after the hearing all the more surprising.

The Collaborative team involved numerous people throughout the process, including a financial adviser, a separation therapist, a collaborative business attorney, and two different divorce attorneys for the wife.  While it is typical to use other professionals to help throughout the Collaborative process, for over two years much of the work in this case was done with just the two attorneys and the spouses.  We had many settlement meetings and shared numerous lunches together.  We were adversaries but working towards a common goal, and all of that led up to the postscript to our hearing.

The hearing itself was uneventful and the Judge approved the agreement with a minimal amount of questions about its content.  She commended the parties on reaching agreement with such complicated issues involved.  Outside the courtroom we shook hands as is typical after reaching a settlement, and then something else happened.  My client reached out and hugged his wife's attorney.  She smiled, and surprised, she said "I don't think I've ever been hugged by an opposing party in a case before."  At the same time, her client did the same, reaching out and hugging me.  This wasn't my first time.

Though it is unusual, I have had other collaborative cases where the counsel and/or the clients ended the case with a hug.  This is the what can happen when you pay attention to how you divorce, and how you resolve conflict, as much or more than what you get or give in the divorce.  I can feel good (and so can my clients) about choosing to resolve conflict in a process that recognizes the humanity and dignity of every person involved.    I don't expect (or even want) a hug in all of my cases, but I can feel good about participating in a process where that is even a possibility.

Friday, April 7, 2017

7 Reasons to Consider a Prenup

Guest Post from Julie Tolek*

That magical moment that you have been waiting for has finally happened. Your significant other proposed and YOU SAID YES! Or you proposed and YOUR SIGNIFICANT OTHER SAID YES! You both have your wedding goggles on and all you can see are hearts and rainbows and as you start to plan the wedding, romance is in the air and the love is palpable. You set the date. Your friends and family then save the date. The flowers have been ordered. The wedding planner is pulling everything together.

And then one of you dares utter the “P” word.




The record stops and the world goes silent and time stops and you wonder if you really heard what you thought you heard.

PRE Nope. 

Or if you are the one who brought it up, you wonder if it’s too late to slur your words so they sound like something else.

“Honey, I said we need to CLEAN UP. I can’t BELIEVE you thought I said PRENUP!” 

And then you avoid eye contact. Everything is awkward and weird and you might both feel the romance of the entire process has been ruined.

It doesn’t have to be that way.

If you are getting married and one of you has brought up the dreaded “P” word (or you secretly want to but are afraid of being unromantic, or are afraid your partner will leave you, or don’t want to sound like a total scumbag) don’t panic just yet.

Before you freak out, consider the following seven things about prenups you probably hadn’t thought of:

1. There is a good time to talk about it, but it’s not the week before the wedding! Waiting until the last minute to talk about it is not a good idea. Generally, the sooner you bring it up, the better. Maybe a friend suggested a prenup when you told her you’re engaged. Maybe a family member has drilled it into your head ever since you can remember. Whenever the idea may have come up, the sooner it is discussed the better. A prenup will have greater legal validity if it was negotiated and signed a reasonable amount of time before the wedding. Springing a prenup with only a week before the wedding won’t allow either party to take time to process the request. Give yourselves enough time to think and go through the process together.

2. Think of it as part of planning your future together. As stereotypically unromantic as it sounds, when you strip the word “prenup” of the emotion associated with it, the prenup itself is just another tool to help you plan your future. Consider how valuable it is to be able to do this together. Humor me here – but discussing your prenup together might even bring you closer together as a team.  Like planning where you’ll live together, or discussing how you might raise children, the prenup discussion is about planning a life together thoughtfully.

3. Think of it like your other insurance policies you have – you probably won’t need it, but it’s nice to have just in case. Another positive side of prenups is that you get to plan your worst case scenario before you are in the middle of your worst case scenario. It is much easier to discuss planning for a possible separation while you are coming from a place of love, than it is to attempt discussion when you are coming from a place of anger or sadness during an actual separation process.  People don’t expect the worst-case scenarios to actually happen, but responsible people have a plan for a “just in case” moment. It is so much better to have a plan now, when you are in a good place together, just in case you need to discuss these topics later.

4. It protects your inheritance and business assets that you may not be focused on now, but may be important later on. Do you have your own business? A prenup can help protect against the liquidation of the business to pay for divorce or protect your ex-spouse from claiming the business in the divorce.  Non-monetary contributions during marriage or investments you’ve made using your own decision making skills are often overlooked. An attorney experienced in drafting prenups will help you brainstorm about these types of things – the things you might not think of as a big deal in the moment but which could become a big deal during a divorce.  This also includes things like retirement assets, licenses, and other things with sentimental value. If you put some thought into this before the unlikely situation where the you-know-what hits the fan, you don’t have to worry about ruminating over it later.

5. Set aside your own savings to use as you please. Typically, any money accumulated during the marriage is considered a marital asset, which means it belongs to both of you, no matter who made or saved the money. Marital assets are included in property division in the divorce. A prenup can give you the ability to set aside your own savings and have it not be considered marital property, so it is all yours!  At the very least, it’s a good idea to have a conversation about how you both intend to share money and what will be considered separate or joint before you get married.  People often have very different ideas about the handling of money and it can be a major stressor on a marriage.

6. Remarriage issues and other children. If this is a second marriage for either of you, a prenup can help allocate college expenses for children from a previous marriage and also make sure your inheritance is distributed according to your wishes.

7. Keeps you both in control. It is true that a majority of divorces settle without going to trial. However sometimes there are still many court hearings and the possibility of litigation. By having a prenup in place, you remain in control of what you want to happen if you get divorced, instead of a crap-shoot with the court. A prenup also gives your mediator or attorneys a framework from which to start the documents that will be submitted to the court for your divorce.

The bottom line is that there is a delicate balance between being true to yourself and to your partner, and nobody knows the two of you better than the two of you! By separating the emotional connotation of a prenup from the benefits of having one, both of you can plan together now to avoid future conflict later. And once it’s done you can focus on your special day and move forward knowing that if you can do a prenup together, you can probably tackle anything life will throw at you, together.

*Julie Tolek is an Associate at Skylark Law & Mediation, PC and runs her own practice, Think Pink Law.  Julie's practice includes family law & divorce representation, prenuptial agreements, mediation, firearms licensing & NFA trusts, estate planning & probate, and adoptions.
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