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.

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

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.

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.

Steve McDonough at The Divorce Collaborative LLC posted an excellent article on how to survivie the holiday season during and after divorce. The entire article can be found here: http://www.divorcecollaborative.com/surviving-holidays-divorce/

The holidays can be a very stressful time and they are made even more stressful by a divorce being in process or by the new family dynamic created by divorce. The collaborative divorce process can assist families in addressing these issues in a more productive and constructive manner.

Despite the group problem solving that takes place in a collaborative divorce, sometimes spouses and their lawyers get stuck. We see it in our Oregon Collaborative Law cases, and getting past a sticking point is critical to success in the collaborative process. Collaboratively trained lawyer Dick Price of Texas has a great collaborative blog with insightful posts on the collaborative process. He recently wrote a post about how to get out of an impasse in a collaborative law case. His article follows:

5 Tips for Getting out of an Impasse

Sometimes, no matter how hard you try, it seems like you reach a dead end with your spouse on an issue in a Collaborative Law case. It happened while you were together, and it shouldn’t be surprising that it still happens after you split up. You’ve thought about possible approaches and made plenty of suggestions, but no agreement seems forthcoming. While persistence can be a virtue in some situations, it can simply lead to frustration in others. If you keep trying the same tactics that haven’t worked on the same issues, you probably aren’t going to reach an agreement. What you need is a change. Here are five brief possibilities to help you get out of a negotiation rut and into an agreement.

1. Expand the pie. Review the situation and come up with some other possibilities. If you have gotten down to a choice between two options and neither party is willing to agree to the other side’s choice, then back up and come up with some other choices. For example, if the decision is about who will take care of the children after school, and each parent wants a different grandparent to be in charge, maybe you should come up with other possible caregivers. If you rule out the current choices and look for others, you may come up with another satisfactory choice you had overlooked. Avoid assumptions about how the issues should be decided. Open up your imagination to look for other solutions. Get out of the rut.

2. Expand your point of view. Oftentimes, we focus so much on our own thoughts and ideas that we begin to have trouble understanding how anyone could possibly think another way on an issue. When that happens in negotiations, that narrowing of focus can lead to impasse. One solution is to listen to the other party and then reflect back to him or her what is being said. If you can just put into your own words what the other side is saying or asking for, it can increase your understanding of their position and may open up your thoughts to new possibilities. In some Collaborative joint meetings, it has been helpful to ask each party to state the other party’s position on an issue and to explain why the party favors that position. It is also common, in preparation for Collabortive meetings or mediations or just plain negotiations at the courthouse, to have my client tell me what the other party would say about various issues. That helps me understand, but it also helps each client/party who works on that. Greater understanding of the issues and the other party can help lead to agreement.

3. Go back to your broad goals. It is very easy in negotiations to get drawn into discussions of small points. As you get into the smaller, lower-level goals, the options available are reduced and the potential for impasse increases. Sometimes you get off track and spend time on things that are irrelevant or just marginally useful. One way to get out of that trap is to stop the discussion and go back to your goals. For example, if you are stuck in a discussion about whether to take part of a retirement account or keep the house (and its equity), it can be helpful to review your major goals. If one of the goals was to maximize your retirement resources, then you probably need to take the retirement account. If a goal was to keep a stable home for the children, you might want to keep the house. If your goal was to obtain or have access to cash, and if you can realistically sell the house quickly, then you would probably want to get the house and sell it. Without constantly keeping the goals in mind, sometimes parties get into emotional arguments over assets because they “love” the house or because their hard work created the retirement account. The goals are more neutral and should always be the ideal in mind as the parties negotiate.
Another problem that frequently occurs is that you have gone from macro level goals to micro level goals. In other words, instead of trying to create ways to stay in daily contact with your child (macro goal), you get into an argument about whether your spouse must guarantee that s/he will be home at a certain hour (micro goal), rather than looking at it broadly and trying to find as many ways as possible to communicate with your child. Dealing with the issues at a broader level increases the number of opportunities to find solutions.

4. Get professional help. We usually work in the team model, using two attorneys, a neutral financial professional (FP) and a neutral mental health professional (MHP). We sometimes have a separate child specialist. The FP and MHP have been extremely helpful in cases where the parties get stuck. On financial issues, the financial professional can ask the right questions as well as suggest alternative solutions. The MHP can help the process generally by redirecting attention to constructive areas and also by maintaining a safe atmosphere for the parties to express themselves. Being perceived as neutrals gives the FP and MHP much more credibility and effectiveness than they would have if they were linked to just one party.

5. Start with areas of agreement. If you come to a standstill somewhere, you should consider switching topics and working on subjects where you expect to agree. Then you can build some momentum. For example, if you get stuck on how to divide up the bills, you might work on how to divide up the motor vehicles or clarify the holiday visitation schedule or clarify college plans for the kids. There are always some areas where the parties will easily agree, and even reaching easy agreements can result in good feelings and a willingness to cooperate. Of course, that doesn’t mean that both sides will agree on everything once they start agreeing, but the momentum can be a helpful force for you.

Conclusion: It’s not unusual in a Collaborative Law case to get stuck more than once. Collaborative Law is not necessarily an easy process to work in, but the results are so much better than in litigation that it is worth the effort. When those times come and you start to realize that you are at an impasse point, try out one or more of the above techniques. They should be great tools to help you reach a successful conclusion for your clients.

Lord Kerr of Tonaghmore, a justice in the UK’s new Supreme Court, said that there had been an “impressive” expansion in the use of what is called the “collaborative” approach to divorce.

In 2003, only four lawyers in England were offering the new out-of-court method, he said. Now the number had risen to 1408 in England and Wales and 100 in Northern Ireland – with a rise of 87 per cent in cases to an estimated several thousand a year.

Lord Kerr, a former Lord Chief Justice of Northern Ireland, added: “Perhaps the most inspiring statistic of all is that of the settlement rate of collaborative law cases – a remarkable 85 per cent.”

In general, the courts have been slow to accept collaborative divorce. In Oregon, there are no formal court pleadings associated with the collaborative process.

New York has taken the lead with collaborative divorce and opened teh Collaborative Family Law Center, the first court-based collaborative law center in the country. The center will provide divorcing spouses with the chance to work with collaboratively trained attorneys.

Chief Judge Jonathan Lippman said, “The Collaborative Family Law Center was established to provide parties with a more child-centered, needs-based alternative to matrimonial litigation. By promoting collaborative law and mediation from the outset, before the parties proceed down an adversarial path, the Center aims to mitigate emotional friction – friction often exacerbated by New York State’s lack of no-fault divorce. The collaborative process minimizes the all-too-familiar cost of divorce – wasted time, money and the often hefty emotional price paid by children caught in the middle. It is a more respectful approach that lets couples decide for themselves what is best for their families and their futures.”

In today’s Oregonian, Jacques Von Lunen wrote an article on the affect of divorce on pets. Specifically, what the law provides with respect to pet visitation and custody. Dan Margolin was interviewed for the story and discussed how the collaborative process can benefit parties with pet issues are part of their divorce. The artice can be found here: http://www.oregonlive.com/pets/index.ssf/2009/09/divorce_and_separations_can_se.html