When the average person thinks about divorce, litigation comes to mind.  In Connecticut, the litigated divorce model is but one option that divorcing couples may choose.

In a traditional litigated divorce (if there truly is such a thing), one spouse initiates the action by serving upon the other, via a marshal, a Summons and Complaint.  While the divorce is pending, various motions to determine such issues as child support, contributions to the marital household expenses (mortgage, utilities, etc.) and the like are typically filed.  A judge makes a ruling after a hearing.  The court’s orders during that time are generally temporary and may or may not differ when the divorce action has reached its conclusion.  For a litigated divorce, the parties may each retain lawyers or they may roll the dice and represent themselves, although the latter is generally not one’s best option.  Divorce lawyers shake their heads in dismay when self-represented parties come into our offices after a divorce is over and want us to fix something they messed up because they didn’t know how to handle the issue in the first place.  In many cases, it’s simply too late.  The issue can’t be fixed.  There are some things you can do yourself but divorce (especially when children and property are involved) isn’t something you should gamble with.  Even the best divorce lawyers hire a divorce lawyer when they are going through the process themselves.  There’s a good reason for it.  Divorce is emotional and a skilled objective third party will usually serve you better than your emotionally-charged self will serve you.  It just happens to be true.  For more information on divorce in Connecticut, visit my website’s divorce page here.   You may also download my complimentary brochure on the divorce process from the legal guides page of this blog here.

For couples that do not wish to spend their time in court fighting over every little thing, two other divorce models exist.  The lesser known of these models is collaborative divorce.  If you’re a regular reader of this blog, you know that it’s the model I personally favor.  In the collaborative model, each party is represented by his or her own collaboratively trained lawyer.  Rather than file motions and attend numerous court hearings, everything is negotiated out of court in a series of meetings.  When complex financial issues are at the core of the divorce, collaboratively trained neutral financial professionals and pension attorneys can be brought into the process.  If there is difficulty formulating a mutually acceptable parenting plan, a collaboratively trained child specialist can be added to the team.  When the divorcing couple is having communication issues that prevent them from coming up with reasonable and rational solutions, a collaboratively trained neutral coach may be used.   The collaborative model is meant to be civil and respectful rather than adversarial (which is the hallmark of a litigated divorce).   Each party can rely on the advice of his or her individual lawyer to guide him or her through the process.  This model works best when both parties are reasonable people who are willing to fairly negotiate and try to find solutions that best serve themselves and their family.  For more on the collaborative divorce model, I invite you to read a couple of my selected previous posts on the topic here and here and here.

The third model is mediation.  It is a more commonly known model than the collaborative model and it differs in many significant ways.  Mediation can be effective when both parties are equal — meaning that one spouse doesn’t feel less powerful or less in control of the process than the other. When there is a serious imbalance in power and control (real or perceived), the process may not yield the desired results.   In the mediation model, the parties mutually retain the services of a neutral mediator.  That mediator does not represent either party individually because each spouse’s separate interests may actually be conflicting.  The job of the mediator is to assist the couple in coming to a final separation agreement.  Sometimes mediation is highly successful.  Other times, people enter into the process only to discover that the other spouse is unable to remain rational and fair.  It can be a wonderful model when two people have a reasonable (and realistic) idea of how they wish to divide their marital assets and the divorce is amicable.

No matter which option you choose, remember that your spouse is also a party to the divorce.  He or she must also be on board if you choose to utilize the collaborative or mediation model.  When faced with an uncooperative spouse, litigation may be the only viable option.

Either way, it’s always wise to consult an experienced divorce attorney to discuss which option might best serve your needs.

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Disclaimer: The information, comments and links posted on the blog do not constitute legal advice. I will not respond to any specific legal questions in the comments section of this blog. Read my entire disclaimer.

copyright 2011 Irene C. Olszewski

I came upon the following piece tonight, originally posted by my colleague, Dick Price, on his wonderful Texas Collaborative Law Blog. It’s a good read.

“Dealing with Anger”

posted by  Attorney Dick Price

Collaborative divorce is often described as a peaceful means of settling very difficult family issues. Just like in litigated cases in the court system, Collaborative divorces sometimes experience displays of anger between the parties. That is unavoidable, and it may not be all bad.

Anger is a natural and very common aspect of divorce. Virtually everyone going through a divorce will experience periods of anger towards their spouse. Most people work through the anger at some point, but some have a great deal of trouble letting go of the anger.

Experience, and therapists, tell us that bottling up the feelings of anger can be unhealthy. That doesn’t necessarily mean that we should encourage the parties in a Collaborative case to just share their immediate emotions without thinking about it.

On the other hand, the Collaborative Law process provides several ways to help manage the parties’ emotions to lead to constructive results. Here are some that come into play:

Managing Emotions

In Texas, we usually use a neutral mental health professional (MHP) as a communication facilitator. In that role, the MHP works with each party to manage any feelings of anger. They help the parties learn useful skills that can benefit their other family, personal and business relationship. MHPs can work with parties to teach them how to maintain control so they don’t immediately shift into “fight” mode. They learn how to listen better and how to chose words to express their feelings without escalating the conflict.

Another important key is helping the parties to stay focused on the “Roadmap to Resolution”, the step-by-step process that we follow to reach an agreement. The Roadmap helps people take things a step at a time. Breaking the process into small, incremental steps helps the parties concentrate on useful and productive issues, avoiding the easy distractions into side issues that can come up.

If need be, we can also arrange individual therapy for one or both of the parties. Sometimes there are long-term issues that require extra help. Other times, counseling can lead to better understanding and better skills by the participants. There’s almost no one who couldn’t benefit by some counseling during a divorce, even in the Collaborative process.

How information is handled is a significant advantage over the methods used in litigation. The requirements that the parties cooperate with each other and share information help because they eliminate gamesmanship and skirmishes on side issues. Transparency and cooperation are the opposites of what normally happens in divorces in litigation. The openness of the process helps reduce stress and anger.

The Collaborative experience is enhanced by direct communications between the attorneys and parties. The fact that we have joint meetings, face-to-face, helps us avoid the common problem of distortions of communications as they pass from party to attorney, then attorney to attorney, and then attorney to party. Direct discussions with immediate responses and conclusions help minimize misunderstandings that can lead to anger. They also cut down on delay.

As effective a process as it usually is, Collaborative Law can’t make anger disappear. In divorces and other family law matters, it’s not unusual for the parties to get mad. Through the use of a variety of tools, however, Collaborative practice is better able to diffuse the anger and deal with the situation in ways that help preserve important family relationships. That’s a major reason why many attorneys and parties are recommending Collaborative Law.

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Disclaimer: The information, comments and links posted on the blog do not constitute legal advice. I will not respond to any specific legal questions in the comments section of this blog. Read my entire disclaimer.

copyright 2011 Irene C. Olszewski

Even under the best of circumstances, people engaged in the collaborative divorce model can reach an impasse.  Rather than give up and resort to litigation, collaboratively-trained lawyers, financial professionals and neutral coaches will encourage the couple to brainstorm creative solutions.

I came upon this post by Texas Collaborative Divorce Attorney, Dick Price that says it all:

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.

Conclusiont: 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.

Source: Texas Collaborative Law Blog, September 16, 2008, by Dick Price, Esq.

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Disclaimer: The information, comments and links posted on the blog do not constitute legal advice. I will not respond to any specific legal questions in the comments section of this blog. Read my entire disclaimer.

Copyright 2011 Irene C. Olszewski

Collaborative Divorce

The collaborative Divorce model aims to take the nastiness out of divorce and create a civil environment for the couple and the other professionals to work in so that meaningful resolutions can be brainstormed.

According to Alice Blackwell, the administrative judge for the Orange-Osceola, Fla., circuit’s family division:

“What makes judges so sad is we see people fighting desperately, but if they would refocus on what’s best for the family, they could find common ground. They’ll spend all their assets on the divorce, and all they know how to do at the end is fight,” she said. “I wish we could change the law so people had to consider collaborative law first, before they came to court to fight.”

I echoed Judge Blackwell’s sentiments in an earlier post on this same issue.

The Collaborative Divorce model is spreading.  Some are calling it the ‘wave of the future’ — and I dearly hope it is.

For another perspective on the Collaborative Divorce model, I invite you to read Mark Schlueb’s excellent post in The Orlando Sentinel:

Collaborative uncoupling

If you must get divorced, do it the collaborative way.

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Disclaimer: The information, comments and links posted on the blog do not constitute legal advice. I will not respond to any specific legal questions in the comments section of this blog. Read my entire disclaimer.

copyright 2011 Irene C. Olszewski

I’ve also posted here before on my absolute love of the collaborative divorce process. The reason I prefer that process is because it is civil and respectful. It is often less costly for the clients and far less time consuming.

In almost every collaborative divorce I’ve ever participated in, we’ve been able to work out complicated details well before the 90-day waiting period has arrived. That means that we have a signed separation agreement waiting to be presented to a judge in court for a final judgment. Prior to that date, we won’t set foot in a courtroom.

In collaborative divorce, both spouses are represented by separate attorneys who advise them of their legal rights and assist them in making separation decisions that will benefit the entire family in the end. This is particularly important when the divorcing couple has children.

Collaborative divorce can’t erase the emotions that people feel as they go through the divorce process but it usually prevents the emotions from reaching a heightened state that causes fighting and long-term devastation.

During collaborative meetings with the spouses, their lawyers and possibly other collaboratively-trained neutrals (such as financial professionals or child specialists), we brainstorm creative solutions and discuss options that will minimize the financial and emotional damage to the divorcing spouses and their children (if they have any). The environment is non-adversarial and it is apparent to everyone in the room that we are all participating in a process that will lead to a fair well and thought out resolution.

Litigated divorces are horses of a different color. I won’t say that all litigated divorces are highly contentious, because some are actually quite civil. Others go on forever, it seems. In the latter divorces, the fighting is often mean-spirited and petty.

If you choose to obtain a divorce, I believe it is at least worth considering the collaborative process. While it may not be for all divorcing couples, it is an option worth exploring.

For more information, please visit the Collaborative Divorce page of my website and
the website of the Collaborative Divorce Professionals.

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Disclaimer: The information, comments and links posted on the blog do not constitute legal advice. I will not respond to any specific legal questions in the comments section of this blog. Read my entire disclaimer.

copyright 2010 Irene C. Olszewski

Everyone knows at least one person who has experienced divorce. Many people who have been through the ordeal of a traditional litigated divorce will say that it was one of the worst and most stressful experiences of their lives. They recall – usually with a shudder – the hours and hours spent in the court house, waiting for their case to be called so that their attorneys could argue yet another motion. They speak of the hurtful things their soon-to-be-ex spouse said about them on the witness stand. And they remember bitterly the emotional and financial cost of a litigated divorce. That old movie, “The War of the Roses” comes to mind.

When engaged in a litigated divorce, I have honestly had to remind my opposing counsel that “this is not our divorce.” One attorney was so engrossed in his adversarial role that he would actually walk away from me in mid-sentence when I didn’t agree with him. If we were ‘negotiating’ on the phone (and I use the term loosely because he was one of those guys who liked to demand rather than suggest anything), he’d hang up in my ear when he didn’t get his way. I often grow tired of the ‘my client is right and your client is wrong’ mentality. Oh, please. It takes 2 to tango. Or rumba, for that matter. Okay, to be fair – and honest — not all lawyers engage in such behavior. But sometimes it feels as if we’re all at war. I’m thinking “The War of the Roses” again. Maybe I should rent it.

I have spent time in court trying to present the facts to a judge while opposing counsel jumps up and objects to everything I say. “Attorney Olszewski appearing for” – “OBJECTION!” “My client would like to” – “OBJECTION!” It is annoying, at best. Even the judge thinks so. Sometimes they tell the other lawyer to be quiet and sit down. I love when that happens. I feel a silly urge to stick my tongue out at the other lawyer and say “nah nah nah nah nah nah” – but I don’t. I’m a big girl now.

By sharp contrast, when I am engaged in the collaborative divorce process, I don’t ever have to remind the attorney representing the other party that “this is not our divorce.” Nobody objects after every word I say. In fact, nobody objects at all. I don’t get the urge to stick my tongue out at the other lawyer. I’m pretty sure nobody gets the urge to stick their tongue out at me, although there’s always a first time for everything. Best of all, my blood pressure remains stable.

In the collaborative divorce process, the parties and their lawyers meet in one of the lawyers’ offices or conference rooms. The Summons and Complaint are not served upon one party by a marshal; they are handed to the person who will assume the role of defendant. The couple agrees to discuss all of the issues in a calm and reasonable fashion. They agree to exchange relevant information and documentation openly and freely, without having to draft a ton of motions and argue in court. (Think of how many trees are saved in the process!) The parties calmly and rationally present their concerns and goals. Sure, there are some emotional moments, but they are handled appropriately. At the end of each meeting, most clients leave feeling as if something has been accomplished. And they don’t feel as if they’ve been beaten up.

When children are involved, a neutral child specialist may be called in to assist the parties in developing a workable parenting plan. The focus is on minimizing the trauma and damage that divorce can cause to a child. The parents are given the opportunity to “test” the proposed plans and solutions before memorializing them in the formal separation agreement. Honest discussion and brainstorming is the hallmark of the collaborative process and it works extremely well when children are involved.

If marital assets must be divided, the parties may work with a neutral financial professional who will analyze the assets and assist the parties in understanding the most fundamental reality of divorce: that there is only one marital “pot” of assets and it must be divided fairly so that each party (and the children) will be left in the best position to move forward. Rather than arguing and fighting over each asset, the financial neutral helps the couple to value those assets and provides real world solutions to otherwise difficult decisions.

Sadly, not every couple is suited for the collaborative process. Highly argumentative, abusive or controlling people would likely have a difficult time maintaining the level of civility, respect and dignity that is required of all the participants. For those unfortunate people, adversarial litigation is usually the only way to obtain a divorce. If you’re one of those highly argumentative, abusive or controlling people, do me a favor and call another attorney. Thanks. I’m trying to keep my blood pressure down. I’d be happy to recommend that lawyer who likes to hang up on me. I’m sure he’d take your case.

Divorce isn’t pleasant but it doesn’t have to be a nightmare. For those who are willing to at least TRY to separate their emotional pain, anger and disappointment over being stuck in a divorce from the REALITY that there WILL be a divorce no matter what, the collaborative process is a good choice. Such couples work with the collaborative team (their lawyers and the other professionals) to work out fair and equitable solutions that make sense in the long-term, not just the short-term. They are often surprised at how well they are able to communicate with their spouse in an environment that feels safe. They come away feeling that they have been treated fairly and with respect. They focus on themselves and their families, remembering the entire time that when the divorce ends, they can remain civil to each other rather than becoming bitter enemies. Think about that when you’re envisioning yourself and your ex-spouse at your daughter’s wedding 15 years from now.

If I had my way, I’d re-write the statutes to require that all divorcing couples must attempt the collaborative process before engaging in litigation. If couples have to divorce, they should at least try to do so with dignity and respect. Divorce doesn’t have to be a nightmare.

I think I’ll watch “The War of the Roses” now.

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Disclaimer: The information, comments and links posted on the blog do not constitute legal advice. I will not respond to any specific legal questions in the comments section of this blog. Read my entire disclaimer.

copyright 2010 Irene C. Olszewski

Unlike traditional court-based divorce (litigation), the participants in a collaborative divorce are empowered to make their own decisions rather than to rely on a judge to do so. The divorcing spouses and their collaborative team work together to form an agreement based upon the individual needs and interests of the couple (and their children, if they have any).

The participants sign an agreement stating that they will not litigate the case in court. They agree to share all information required to facilitate the process and don’t hide information from anyone in the process. If one of the participants breaks the agreement and takes the case to court, the collaborative lawyers and other professionals are discharged from the case and will not participate in the litigation.
Collaborative divorce is usually less expensive than traditional divorce for a variety of reasons. First and foremost, because the process takes place outside the courtroom, the spouses do not incur fees for multiple court battles (which often require hours of waiting around in the hallway waiting for your case to be called). When assets need to be properly valued, the participants work with a neutral financial professional (who is also collaboratively trained). By sharing this professional resource, the participants pay a much lower fee and the process is often expedited.

There is an enormous emotional component to every divorce which can often cause one or both of the spouses to feel considerable anxiety. The collaborative approach recognizes this basic human element and factors it in to the process. When needed, a neutral coach works with the couple to help them with the emotional aspects of difficult issues and helps to promote productive communication.
The participants are represented by separate lawyers who are there to advise them about the complicated legal issues. However, unlike traditional divorce, a lawyer is not there to try to convince a judge to give his or her client exactly what that client wants – without regard for the needs and interests of the couple (and their children). The collaborative lawyer’s job is to refocus the participants on their common goals, which include being able to meet future financial needs, to have well-adjusted children, and to be able to move forward with as little disruption and trauma as possible.

Collaborative divorce may not be suitable for all couples. However, a candid discussion with a collaboratively-trained attorney will help you decide if the process is right for you.
For more information, visit Collaborative Divorce Professionals.