Anticipating Divorce

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vicki-volper.pngvicki-volper.pngWhen anticipating divorce, many questions arise. Divorce is a process rife with many interrelated legal, financial and emotional issues. After first thinking very carefully about whether to divorce, you should then think carefully about how to divorce. To begin with, you should decide what issues are most important to you about how to divorce. While you may not be the one who has chosen to divorce, you can take control over the method of divorce.

Is it important to you to maintain an amicable relationship with your spouse after divorce?

You may wish to keep your relationship with your spouse amicable for a variety of reasons, not the least of which is your children. When you imagine your future, do you hope to sit at your children’s sporting events, theatrical productions and graduations comfortably? Would you like to be able to dance with your former spouse at your children’s weddings? If so, you would benefit from a non-adversarial divorce method such as collaborative divorce or mediation.  Both collaborative divorce and mediation are geared toward resolving the issues of your divorce in a way that enhances, or at least does not undermine, your ability to communicate with your former spouse.

What kind of professionals would you like to work with in the divorce process?

Do you want an aggressive litigator controlling the process? Or would you prefer a person who will consider your values and include you in the process? Are you willing to risk having decisions about your future made by a judge you have never met before? Or do you want to maintain control of your future and your children’s future? Collaborative lawyers and mediators will help you examine your values and will help guide you through the divorce process respectfully. In addition, the collaborative divorce process offers you the option of mental health professionals acting as divorce coaches to support you through the divorce process.

Is saving money important to you?

An adversarial divorce, one with aggressive attorneys involved, is generally much more costly than mediation or collaborative divorce.  The adversarial process involves court appearances where you will await your lawyer’s chance to argue motions before a judge.  There will be many discussions between your attorney and your spouse’s attorney that are communicated to you after the fact.  You are paying for each of these procedures by the hour. There is no need to spend your children’s college fund or your retirement savings on your divorce. If you are comfortable mediating, you can generally divorce quite economically.  If you need the support of an attorney by your side through the process, collaborative divorce will save you a significant amount of money as compared with litigation because you and your spouse meet with your two attorneys together in 4-way meetings. You avoid the game of telephone that would otherwise occur where your attorney conveys your thoughts to the other attorney who then conveys them to your spouse, and so on.

Do you value your privacy?

The traditional divorce process entails court appearances where your financial and personal matters are discussed in a public forum. Collaborative divorce and mediation are done in the privacy of an attorney’s office. 

Who will you be after divorce?

The prospect of divorce may take up all of your emotional energy at the moment. It may loom in your future and seem never-ending.   Fortunately, you will one day complete the process. Who do you want to be when you are done with the divorce? Will the benefit of “winning” by using the most aggressive lawyer in town outweigh the loss of your ability to communicate with your spouse and effectively co-parent your children?

Please call me if you would like to discuss these issues further.vicki-volper.png

Vicki Volper

Collaborative Attorney and Mediator

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Why Add Additional Members to your Collaborative Divorce Team?

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You and your spouse have hired Collaborative Divorce attorneys. You are ready to begin the process. You need to ask yourself these questions to determine whether to add other Collaborative Divorce team members.

Do we need a Financial Specialist as part of our Collaborative Divorce team?

A Financial Specialist can help parse through your financial information and present it in an understandable manner. This is important when parties have complex financial assets or variable sources of income. A Financial Specialist can also prepare financial projections. This can be especially helpful in making you and your spouse comfortable that the income and assets you will have after the divorce will be sufficient for your lifestyle. A single Financial Specialist will review the finances for you and your spouse and report to both attorneys.

Do we need a Collaborative Divorce Coach as part of our Collaborative Divorce team?

A Collaborative Divorce Coach is a mental health professional who has trained as a divorce coach.  He or she does not act as a therapist, but rather as a coach to guide you and your spouse through the emotional issues that sometimes interfere with successful divorce negotiations. Sometimes each of you will have your own coach. Alternatively, one coach may be sufficient for both of you. The coach may attend the 4-way collaborative meetings, or may meet with you separately before or after such meetings. A Collaborative Divorce coach can facilitate negotiations and enhance the Collaborative Divorce experience.

Do we need a Child Specialist as part of our Collaborative Divorce team?

A Child Specialist is a mental health professional who is especially trained in the needs of children in a family undergoing divorce.  The Child Specialist may meet with your children to assess their needs and advise you about the best parenting plan for your children. If you have concerns about how your children are reacting to the divorce, you may want the advice of a Child Specialist in deciding upon an appropriate parenting plan.

Will Additional Collaborative Divorce team members increase the cost of our divorce?

The answer is not necessarily. The Financial Specialist can work with the financial information on behalf of both you and your spouse and report to your attorney. This is less costly than having each attorney review the numbers separately. The Collaborative Divorce Coach and the Child Specialist can enhance your ability to resolve issues, saving time and money in the long run.

Navigating your Collaborative Divorce

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You have decided to embark on a Collaborative Divorce. You would like to make the most of it.  Here are some tips for how to successfully navigate the process

           Establish goals for your Collaborative Divorce.

Think about your goals for the Collaborative Divorce process.  Consider the big picture as well as particular goals you might have.

    Permit each person to speak without interruption.

Basic civility will go a long way to further fruitful negotiations.  The Collaborative Divorce attorneys will make sure that each of you has an opportunity to be heard.

3  Listen respectfully with an open mind.

Your anger and frustration may make it hard for you to really hear what your spouse is saying.  Take the time to listen and you may be surprised to hear helpful ideas.

4  State facts, not accusations.  Ask for what you want and need.  State your   reasons.

Feel free to ask for what you need without accusing your spouse of not giving it to you.  Explain your needs as clearly as you can. 

5  Focus on the future, not the past.

You and your spouse disagree. That is why you are getting divorced.  Move on.

6  Speak only for yourself, not for the other person.

One of the advantages of Collaborative Divorce is that you will do most of your negotiations in 4-way meetings with your spouse and your two attorneys.  You do not have to speak for your spouse.  He or she is in the room and keep speak for himself or herself.

7  Consider one issue in your Collaborative Divorce at a time.

There are many things to be decided in divorce.  The multitude of issues can seem overwhelming. Take them one at a time.  Your Collaborative Divorce attorneys will make certain that you do not overlook important questions.  Take notes to ease any concerns about missing issues of importance. Focus on the matter at hand.

8  Agree to think about all possible solutions to resolve each issue.

It is tempting to come to a 4-way meeting with your own ideas about how many divorce issues should be settled.  Keep an open mind.  Brainstorm and leave all ideas on the table for consideration. Do not reject ideas without thinking them through.

9  Treat all decisions as temporary until all issues are resolved.

You are not bound by any decisions made in your negotiations until all of the issues have been handled.  For example, you might want to reconsider the division of assets in light of decisions about spousal support. All of these issues will together make up your divorce agreement.  Feel comfortable making tentative agreements that can be re-evaluated as negotiations proceed.

How Do I Begin My Collaborative Divorce?

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You have read the literature and thought about your options. You have considered your desire to maintain an amicable relationship with your spouse after your divorce. You want to protect your children from the detrimental effects of an adversarial divorce. You prefer not to waste your valuable assets fighting about how to divide them. You have decided that you would like to use Collaborative Divorce. How do you proceed?

1. Talk to your spouse about Collaborative Divorce.

Collaborative Divorce only works if both parties agree to use it and are willing to participate in the process. Discuss your reasons for choosing Collaborative Divorce and explain them to your spouse. It is likely that your spouse will agree with your goal of maintaining your dignity, preserving your assets and protecting your children.

2. Find a Collaborative Divorce attorney.

Interview your attorney to be sure that he or she is truly a practitioner of the Collaborative Divorce model. Some litigation attorneys will tell you that they practice cooperatively or work collaboratively. That is not the same thing as a true Collaborative Divorce. Ask your prospective attorney if he or she is willing to sign the Collaborative Divorce agreement that (i) prohibits the filing of any motions in court during the divorce process (other than the summons and complaint to initiate the action), and (ii) requires the parties to hire new attorneys if the Collaborative Divorce process terminates. Only attorneys agreeing to sign such an agreement are truly committed to the Collaborative Divorce model. For an interesting discussion about why you should not hire a “gorilla” as your divorce lawyer, click here: http://www.westchesterfamilylaw.com/blog/2014/05/gorillas-dont-make-good-lawyers.shtmlGo

3. Find a Collaborative Divorce Attorney for your spouse.

Ask your Collaborative Divorce attorney for a list of attorneys he or she has worked with successfully. While certainly not mandatory, it is helpful for the two Collaborative Divorce attorneys to have a good working relationship.

4. Think about how best to use the Collaborative Divorce process.

Collaborative Divorce attorneys will often incorporate other Collaborative Divorce professionals into the process. You may find it beneficial to work with a divorce coach, who are mental health professional. A Collaborative Divorce Coach will help you and your spouse overcome emotional obstacles to reaching your goal of an amicable divorce. A Financial Specialist, who is trained in divorce financial management, can help you and your spouse to organize and understand your assets, liabilities and living expenses. When there are minor children of the marriage, a Child Specialist may be appropriate. A Child Specialist

5. Get Organized.

You can facilitate the Collaborative Divorce process by being organized. Start collecting your most recent statements for bank accounts, brokerage accounts, mortgages and other debts. Read my article on Financial Information to Collect in Preparing for Divorce. http://vickivolper.com/financial-information-to-collect-in-preparing-for-divorce/

6. Think about your goals for your divorce.

Your Collaborative Divorce attorney will ask you about your goals for the process. While you might have some concrete desires, like keeping your house or staying in your current school district for your children, think about your larger goals. Take some time. Make some notes. Referring back to your goals will help you through the challenges of the divorce process.

Financial Information to Collect in Preparing for Divorce

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Choosing a non-adversarial divorce method like Collaborative Divorce or Divorce Mediation is a good idea for many reasons.  One reason is that it will save you time and money. You can further keep costs down by being organized and gathering the financial information you will need to collect in the divorce process.  Don’t worry if you are not able to collect all of the information right away.  Your collaborative attorney or mediator will guide you through the process.

Documents you will need for your divorce:

         TAX RETURNS filed within last 3 years

Include IRS Forms W-2, 1099 and K-1 for last 3 years

.   PAY STUBS for your most recent pay period, if typical

Make a note of your pay period is.  Is it every other week? Twice per month?

        BANK STATEMENTS – most recent for each account

a.       Also note any cash located elsewhere

b.      Note who owns each account.  Is the account joint or in the name of one spouse or the other?

        BROKERAGE STATEMENTS for most recent period

a.       What is the current value

b.      Note who owns the account. Is it joint or in the name of one spouse or the other?

        CREDIT CARD STATEMENTS for most recent period if there is a balance not paid in full monthly.

a.       If you pay the full balance each month the current balance is not important.

b.      Who is the named borrower on the card? Is the other spouse an authorized user?

        STATEMENTS FROM PENSION, PROFIT SHARING, RETIREMENT PLANS, 401Ks

a.       Benefits statement describing plan

b.      Most recent statement of amount vested

         DEEDS TO ALL REAL ESTATE OWNED

a.       Note who owns the property

b.      Do you have a recent appraisal?

        MORTGAGE STATEMENTS including home equity loans or other secondary mortgages

a.       How much is owed?

b.      What is the monthly payment of principal and interest?

c.       Does the bank escrow for real estate taxes? For homeowner’s insurance? What portion of each monthly payment is for each of these?

d.      Who is the borrower? One spouse or both?

         INSURANCE-Health

a.       What insurance company provides the insurance?

b.      Who is covered by the plan?

c.       What is the monthly premium?

d.      What is the annual deductible?

e.      Do you also have an HSA account? How much do you contribute to it each year?

        INSURANCE-Life

a.       What company provides the insurance?

b.      Is it term life or whole life insurance?

                                                              i.      If whole life, what is the cash value of the policy?

c.       Who is the insured?

d.      Who is the beneficiary?

e.      What is the death benefit?

f.        What is the annual premium?

        BUSINESS INTERESTS OWNED BY EITHER SPOUSE

a.       Most recent financial statements (balance sheet; profit and loss)

b.      Is the business a corporation? Partnership? Sole proprietorship?

c.       Is the business owned with a person other than one of the spouses?

d.      Is there a buy-sell agreement or other restriction on transfer?

Vicki Volper Chosen for the Winners Circle

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Attorney Vicki Volper is honored to have been profiled in the Fairfield County Business Journal’s Winners Circle. Here is a link to the article.

http://westfaironline.com/60564/the-divorce-minus-the-acrimony/

Choosing Between Mediation and Collaborative Divorce

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By choosing either mediation or collaborative divorce, a couple can avoid the adversarial posture taken in most divorces that are handled in the traditional way. While conflict cannot be avoided in divorce, the mediation and collaborative divorce processes can make conflicts constructive, rather than destructive. The parties can take ownership of the decisions that need to be made regarding financial and parenting issues and maintain control of the divorce process. The outcome is designed to maintain the relationship necessary to productively co-parent children after divorce while allowing each of the parents to move forward independently. In addition, both mediation and collaborative divorce are generally more cost effective than an adversarial divorce.

In mediation, a couple works with a neutral third party mediator, or sometimes, a team of two neutral third party mediators, to make the decisions that need to be made in connection with their divorce. The couple meets with the mediator over a period of weeks or months to gather facts, discuss goals, brainstorm options and choose solutions. While the mediator guides the discussions, the couple controls the ultimate decision making. A mediator generally will only offer possible solutions to the couple’s issues if the parties themselves are stumped. Some mediators, especially attorney mediators, will provide information about how a judge might decide an issue, but the parties are generally free to ignore this information and choose an alternative solution. The exception is where the solution the parties choose is so far from the norm that the mediator believes a judge will not accept the proposed agreement. It would be a disservice to the clients to allow them to go to court with an agreement that they cannot adequately justify to a judge. To do so would be to waste the client’s time and money.

Collaborative divorce is based upon the same general principles as mediation in that it is solution oriented and non-adversarial. As in mediation, the couple maintains control of the path the divorce will take and decisions are made outside of the court system. The main difference between mediation and collaborative divorce is that in collaborative divorce, the parties are represented by attorneys. Some people do not feel comfortable mediating for a variety of reasons. Perhaps they are less informed about financial issues that their spouse. Perhaps they feel intimidated by their spouse and are not comfortable advocating for themselves.  They prefer to have their attorney by their side as they navigate the divorce process.  Collaborative divorce also offers the option of divorce coaches, who are mental health professionals for emotional support, a financial specialist, who is trained in divorce financial management, and, when there are children of the marriage, a child specialist.

There is no right answer for everyone. It is a personal decision. Fortunately, there are two viable alternatives to an adversarial divorce. Collaborative divorce for those who need to be represented by an attorney, and mediation for those who do not.