Book Recommendation – Good Karma Divorce

by Daniel Margolin on April 12, 2010 · 0 comments

Family court judge Michele Lowrance recently wrote a book titled “The Good Karma Divorce.”  The premise of the book is “The American court system was not built to house or process the violent emotions unleashed by divorce. Attorneys are not trained to reduce the attendant suffering of their divorcing clients and families, and judges have a limited toolkit of remedies. Divorcing couples embark on this frightful journey, believing that the court will deliver justice, and that justice will deliver peace. Most discover somewhere during the process that they are achingly, horribly, alone. This book is the insurance policy against having the kind of divorce you always feared, while showing you how to protect yourself, your children, your finances, your soul, and your psyche.” 

The book is a good introduction into some of the reasons that divorcing spouses are choosing the collaborative process.  Information on the book can be found here:  http://thegoodkarmadivorce.com/.

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How the Economic Downturn is Affecting Divorce Rates

by Daniel Margolin on March 27, 2010 · 1 comment

The Washington Post published an article on the fact that estranged spouses are increasingly waiting out the economic downturn before divorcing.  The article can be read here:  http://www.washingtonpost.com/wp-dyn/content/article/2010/03/21/AR2010032103139.html

While I am always in favor of people being able to save their marriage, it is unfortunate if a couple has to stay married even though they do not want to be.  Collaborative divorce can provide a more flexible and creative approach to dealing with the impact of the economic downturn on a married couple’s ability to divorce.

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Expanding Popularity of Collaborative Practice

by Daniel Margolin on March 11, 2010 · 0 comments

In a demonstration of the expanding popularity of the collaborative practice model, the lead article in this month’s Oregon State Bar Alternative Dispute Resolution Section newsletter is an article by Forrest Collins, a local collaborative practicioner.  The article is an excellent explanation of the collaborative practice model in domestic relations cases.

The entire article can be read here:  http://www.osbadr.com/newsletter.php?issueid=5

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Cost Savings Through Collaborative Divorce

by Daniel Margolin on March 9, 2010 · 1 comment

Some practicioners try to sell the Collaborative Process as a cheaper alternative to traditional divorce.  I think that this is unfair to clients and incorrect.  It is absolutely correct that the collaborative process will be cheaper than going to trial 100% of the time.  It is possible, however, in a traditional divorce to reach a very quick and cheap settlement.  The difference between that settlement and a collaborative settlement is the way that the settlement is reached and the reasons behind the settlement.   Specifically, the traditional divorce settlement is likely a quick and dirty settlement that does not address the needs and interests of the parties.  In a collaborative settlement, which may take longer (and therefore cost more), the parties will be heard and long lasting and thoughtful settlement will be reached.   Another way in which collaborative work can be more cost effective is via cooperative discovery as opposed to litigated discovery.

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Breakdown of the Collaborative Process

by Daniel Margolin on February 8, 2010 · 0 comments

As an attorney who practices both Collaborative Divorce and traditional litigation I experience both the cause and the effect of the breakdown of the collaborative process.

The main reasons that I see for the breakdown of the process is as follows:

  • Improper Initial Screening:  A failure by the attorneys to properly understand the parties’ interpersonal dynamics and personalities.  With good attorneys and good support personel most spouses can utilize the collaborative process.  In situations where one party or the other cannot or will not share information in good faither; where one party or the other has been physically abusive; or where there is a complete lack of reasonableness, the collaborative process will not work.  Many times a potential client will want to use the process, but doesn’t understand why he/she or the other party will not be able to do so effectively.
  • Unrealistic Expectations:  Many parties look into the Collaborative Process to save money or because they want something that they know a court cannot provide.  These can be outcomes that result from the process, but not in every situation.  If a party is unwilling to accept or back away from an unrealistic expectation the process will not work.  This will result in both higher costs and a longer process.

What happens next.  After the breakdown, the parties need to look for new traditional legal counsel and start the whole discovery and information gathering process anew.  This is costly and frustrating.  In addition, one party or another may be in a worse position than had the collaborative process never started in the first place.  This can be very upsetting to clients and can be a potential source of problems for the initial collaborative attroney if he/she failed to properly screen the case.

If you are looking into the collaborative process, it is a terrific way to work through a difficult legal issue, just be sure that you ask your attorney, or your client, some tough questions to make sure the process is the correct one for your situation.

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Collaborative Pre-Nuptial Agreements

by Daniel Margolin on January 28, 2010 · 1 comment

While traditionally collaborative divorce is thought of applying to the end of marriage, the collaborative process (or something very similar) can be used to help people begin their marriage.  Collaborative pre-nuptial agreements are the result of open communication and full disclosure between a future husband and wife. 

Both people meet with one attorney, after signing conflict waivers.  That attorney ends up officially representing only one of the parties.  At the meeting, the attorney explains his/her view of pre-nuptial agreements and works with the parties to come up with an agreement that they want to have drafted.  Since it is a requirement of the statutory laws regarding pre-nuptial agreements that the parties fully disclose everything to each other, meeting together with the attorney should not be a problem.  After the document is drafted, the parties bring it to another lawyer, who officially represents the other spouse.  That lawyer reviews the document with them.  If any issues come up, the parties and lawyers meet together to resolve the dispute.

Rather than having the pre-nuptial process cause a rift between the parties, this process allows the parties to work together on the roadmap of their financial future.

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Sometimes negative examples drive home the benefits of collaborative practice the most. At Stephens Margolin P.C. we help clients with both traditional litigation cases and collaborative cases.  As an Oregon lawyer practicing only family law, I frequently borrow from my collaborative law skills when working on traditional cases. The traditional side of our practice frequently reminds me of the benefits of collaborative law and the flaws in traditional practice.  In our traditional cases, we usually attempt a four way style meeting and mediation prior to entering a courtroom. I recently made an appearance in a county which allows for hearings on temporary custody and parenting time before the parties mediate.  The opposing attorney had filed for temporary custody without asking for mediation. I asked the other lawyer to mediate to see what we could work out prior to using the court’s time, but they refused. I would have been happy to have a four way meeting in our conference room and talk about some creative solutions, but they refused.  Rather than mediate or negotiate, a hearing was held at the other lawyer’s insistence.  The result was substantially worse for the moving party than they expected. Rather than a cooperative solution being reached voluntarily, the court imposed a decision on the parties that was harmful to the moving party.

Refusing mediation or a face to face meeting was an enormous strategic mistake for the other lawyer.  A more collaborative approach would have left the other lawyer with a happier client vs. a miserable client, and a better outcome.

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The “Happy Divorce”

by Daniel Margolin on January 8, 2010 · 0 comments

Collaborative Divorce as a process for resolving divorce litigation is not what most people think of when they think of divorce. While the process can be difficult and is always emotional for the parties, it can oftern produce a “happy divorce.”

Mark Schlueb of the Orlando Sentinel wrote an excellent article in the January 8th edition of the paper about this very issue. The entire article can be found here: http://www.timesleader.com/features/Collaborative_uncoupling_01-07-2010.html

A local attorney who is quoted in the article says that he believes that collaborative divorce is the “wave of the future.” I believe that my clients who have utilized the process and other attorneys who have had success with it would agree.

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Helping your kids through a divorce

by Daniel Margolin on January 5, 2010 · 2 comments

One of the benefits of the collaborative divorce process is that it allows the parents to really focus on what is truly best for their children. This is done by looking at the children’s interests and needs and, in some instances, using a child specialist to assist the parents in understanding what is best for the children.

Glenn E. Tanner is a lawyer in Spokane who publishes a blog entitled “Collabortive Divorce Spokane,” which can be found at http://collaborativedivorcespokane.blogspot.com.

On his blog he recently published the following list of ways to help kids during a divorce:

1. Tell them about the separation together. Don’t blame each other for the separation. Plan what you’re going to say and rehearse it.

2. Tell them before someone else does.

3. Take care of yourself. If you are too tired, too stressed, stretched too thin, it is hard to be a good parent. If you have an addiction, it will be hard for you to be present when needed.

4. Don’t argue in front of the children.

5. Don’t make assumptions about the other parent. Parents sometimes change their behaviors when the separation occurs. Don’t assume the way the parent has acted int he past is the way the parent will continue to behave. Don’t assume the parent will act differently than before either however. Check in and talk with the other parent, ask what she/he expects and wants in a certain situation. You may be pleasantly surprised.

6. Keep the children’s best interest in mind. What is “fair” from the parent’s perspective may have nothing to do with what is in the child’s best interest. An infant, who has not been weaned, may need the Mother to sleep on the couch at the Father’s house until the child is weaned even though neither the Mother or the Father are pleased about having the Mother sleeping on the Father’s couch. Adjustments to divorce occur faster if you can keep the children’s interest in place. Otherwise, the focus is more on the dysfunctional emotions that are important to the parents, such as hurt and anger, rather than what the children need. Worse, an overemphasis on your own issues, bubbles over and artificially becomes the child’s issue. For instance, a parent is hurt by the existence of the other parent’s new partner. Rather than recognizing that as the hurt parent’s issue, suddenly it becomes a safety issue for the child to spend time with the new partner.

7. Address how the separation impacts the child. Children want to know if they will be okay, have enough food, will change schools, have to move, will be able to keep their friends, etc. “Divorce” doesn’t mean anything to the child or worse, means something they saw on television or something their friends told them. Every child is different and children at different development stages have different needs. There are lots of guides on line about how to tell children with different needs.

8. Let them know that Mom and Dad are okay.

9. Explain that emotions are okay. It will be impossible to hide all of your emotions. Let your child know it is natural and okay for you to be sad, to feel a loss or cry at times and that the emotion will pass and does not mean the child has to worry about you. You don’t have to be “super-parent.” Make sure you label the emotion appropriately so they child knows it is not about them. However, it is possible to tell the children too much. Be aware that your child may try to support you and act like an adult, or the lost partner even. Relieve the child of that burden; let the child be a child and make it clear you can handle the parenting.

10. Get help. Most parents don’t know the kind of tension they will be going through, what to expect and what other parents have experienced. It is better to get the input of a counselor on whether a child is doing all right with the divorce before you discover they haven’t done their homework for six weeks or have reverted to wetting their bed. There are divorce support groups. Knowing what others have felt can be empowering. Ask friends and family for help. Simple things like transportion or getting help with cooking can make life much easier.

11. Give children permission to bring up the separation. Most divorcing couples spend very little time talking to their children. Minutes. Let the children know that they can ask questions. Ask them how they are doing with the separation weeks and months after your first discussion.

12. Normalize what the child feels. It is natural and reasonable for a child to be worried and scared during the divorce. It’s okay that they feel that way. But let them know they don’t have to let their emotions control them because there are rational reasons to feel differently.

13. Don’t criticize the other parent in front of the child. Every time you criticize a parent, the child is effected. The child may feel they need to protect the criticized parent or may feel the criticism is about them too.

14. Try to establish routines. Mom and Dad’s house ideally but that is usually not possible and it is not the most important thing. Even if the routine is different at the other parent’s house, support the other parent.

15. Talk with the other parent about how you will introduce new partners to the child.

16. Open the door with school, family, and day care to contact you if they see problems with the children. Many times you will not be contacted until it is too late or unless there is a serious problem. If you open the door earlier, problems can be nipped in the bud before they become bigger problems.

17. Recognize that you have a powerful impact and influence on your children and lots of resources and help available to you if you don’t have all the answers.

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Daniel Margolin on Collaborative Divorce Practice

by Daniel Margolin on December 23, 2009 · 0 comments

Daniel Margolin, a partner at Stephens Margolin P.C.  and a frequent contributor to this blog and the Oregon Divorce Blog, recently co-authored an article for the Oregon State Bar Bulletin titled “Collaborative Practice: An Overview.” The article provides a good overview of collaborative divorce from a “lawyer to lawyer” perspective. A link to the publication can be found here.

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