How to Pick a Divorce Lawyer

The New York Times has been running a fantastic series about Divorce and Money.
 Tonight they asked people to comment on the best way to pick a divorce lawyer.  Here is my answer:

The best way to pick a divorce lawyer is to find someone who will try to optimize the situation for everyone involved (particularly the kids), not just for you. Think about the emotional and psychic costs as well as the financial costs.

I am an attorney who only does divorce mediation and collaborative law for this very reason. Lawyers are taught that they have to provide their clients with "zealous advocacy." That may work fine in business deals, but it doesn't work when it comes to families.

Mediation and collaborative process work for most families, even if you're furious at each other. They allow you and your spouse to make decisions specifically tailored to the needs of your family, they're usually cheaper and faster than litigation. Whose kids do you want to send to college - yours or your lawyer's?

I and Thou

My favorite book is I and Thou by Martin Buber. It is the defining book of my life, I think.

It is based upon a simple, but profound, premise: that each relationship we have is either I:It or I:Thou. I:It relationships with things - I:Thou (I:You) relationships are those with beings. It is contained, inanimate, what you can experience. Thou is spirit, limitless. "If I face a human being as my Thou," Buber says, "and say the primary word I-Thou to him, he is not a thing among things, and does not consist of things."

This is what we do when we get married. We vow to always see the spirit in the other person, to understand and to relate to that person with your whole self.

And by the time couples get divorced they are relating to each other as Its - as things, as obstacles.

But when we treat someone else as an It we dehumanize ourselves.

In mediation, we ask parties to consider the whole person again, to treat that person as I:Thou, if only for the small time they are in the room. And it is by seeing that person's spirit, by treating them at their highest, that you honor your own spirit. For only the whole can relate to the whole.

Good for Your Health!

The New York Times published an article in the Well Column of the Science Section last week, entitled, "Divorce, It Seems, Can Make You Ill." Similar news stories came out as well, based upon a study done by sociologists at the University of Chicago and at Johns Hopkins, that followed over 8,600 people, about 40% of whom had gotten divorced. The researchers found that divorce and widowhood are extremely stressful, physically as well as mentally, and that even getting remarried does not help one fully recover.

The study found that divorced or widowed people had a 20% greater incidence of chronic health conditions like diabetes or cancer, and 23% more difficulty getting around.

Another study they cited in the Times article found that wounds took up to two or three times as long to heal after marital conflict with high levels of hostility.

There is no question that divorce and widowhood is stressful, and that stress is related to health. So now I'd like to see a study that compares people who had mediated or collaborative divorces with those that underwent litigation. I imagine that there is much less stress in the former processes, and that therefore, people who use mediation or collaborative process end up with healthier outcomes.

The Elders

I'm so excited!

This week I learned about a whole new way to use mediation - to help families make decisions together when an elderly parent can no longer take care of herself, or drive, or live alone. Or when the siblings are trying to decide what to do with the summer house, or how to divide up the stuff Dad left ...

The training was taught by Arline Kardasis and Blair Tripp from Elder Decisions/Agreement Resources in Massachusetts. They are very compassionate - particularly towards the needs of the elder. (In this way, it is not a completely neutral process.)

How do you manage to keep your independence and your dignity when you can't do what you used to? You depend on your daughter, but she is always arguing with your son....

How often do adult siblings argue when Mom needs more care, or Dad needs to go into a nursing home? And yet, this is when they need each other the most.

There is so much to do! Not only take care of Mom or Dad's day to day needs, but to find out what resources are available, how much it all costs, whether insurance will pay, where s/he'll get the best care ... And then, how do you deal with the emotions of it all - to see that your own parent can't do it all as s/he used to, that you have kind of a role reversal, having to take care of him/her more, or, attending to your own grief which may come all at once or in the little details of having someone slowly slip away for you.

And this is when all of the old sibling stuff from your childhood may come up! (Remember the Smothers Brothers? Mom always loved you best!)

Mediation is a great way to start the dialog, to do problem solving together, to build back those important family relationships, to begin to work together as a team ...

We are all made of Sound

Mediating a few weeks ago, a client said, "We are all made of sound."  

She meant that we are all influenced by others, shaped by others.  What a poetic way of putting it.  I have commented before on the "ghosts in the room," in mediation - the parents, girlfriends, best friends, etc. who influence our thinking.  These people, who are not actually sitting around the table, can have a deep effect on mediation.  How do we address their thoughts -- their voices in our conscience, giving their opinions?  

One thing we can do is acknowledge their existence.  Simply admit that they exist and allow them to be there. they serve a purpose.  Most often, they have good intentions.  Listen to those voices and decide how much you will listen to them - how loud they will be to your ears.  But then realize that what those well-intentioned people want for you might not be exactly what you want for yourself.  Do those voices harmonize with your own?  Do they augment it?   Or is there discord?

And then we must listen to our own inner voices, too.  For we are writing the story of our life - we are each writing our own personal symphony.  

  

Where are We?

President-elect Obama.

Was the election really only 9 days ago?

Doesn't it seem as though the whole world has changed since then?  It's as though we have a whole new outlook, a new range of possibilities that didn't exist before.  You knew the moment was coming, but didn't realize how profound a shift it would be until it really got here.

How could it be?  Many of my friends are strangely quiet, introspective, trying to get used to this new way of thinking and being.  Who knew that one man could enlist the hope and support of millions from all over the world?  Who knew that we could turn the race conversation on its head in one day?

We are used to thinking about crisis in terms of disaster.  

9/11.  Katrina.  Tsunami.  

Is there a word for an equally dynamic and sudden shift that is positive??

The 60's were about rebellion against the establishment.  About tearing down old structures.  

This is a different kind of revolution.  It is positive - constructive.  It's about hope.    Working together. 

Building something new.  

Fueled, in large part, by people too young to remember the sixties.  

And by those old enough to remember segregation.

I've seen huge shifts in personal thinking during mediation sessions and in the collaborative process - that aha! moment when people realize a new way of thinking.  One of those moments when everything changes for you and nothing will ever be the same.

And now it is as though the whole world has had that aha! moment.

Isn't it wonderful!?

 

Obama (the Mediator) for President

"The change we need isn't just about new programs and policies.  It's about a new politics - a politics that calls upon our better angels instead of encouraging our worst instincts; one that reminds us of the obligations we have to ourselves and one another." 

 -- Barack Obama, Canton, Ohio, October 27, 2008.

Mediation calls upon our "better angels."  And in mediation we learn to see a problem through another person's eyes.  In the family mediation that I practice, we all work together to figure out solutions that are good for ourselves and one another - for the whole family.  

Mediation is built upon a notion that people in conflict can work to solve a problem together.  But in order to do that, we must allow ourselves to see "that of God" in the other person.  We must disengage, if only for a few moments, from sparring with each other -- just long enough to hear what the other person is saying.  It is at that moment that they will also hear us.  Light and air come into the room.

Barack Obama is fundamentally inclusive. He understands, perhaps intuitively, the very core of mediation.  What would it mean if we had, as president, someone who was a mediator at his center?

I truly believe that the reason his campaign has come as far as it has is because it IS built on hope - on optimism, it calls on that which is truly good in us.  He calls us to be our highest selves.  And we, in turn, are rising to the task.  We are allowing ourselves to believe that love is possible, no matter what happens in war, with the economy.  We are allowing ourselves to believe that the best way to bring ourselves up from under is with each other.   We are all interconnected.  We need each other. 

Bankrupt?

Is bankruptcy a possibility for you? For your ex? Are you worried about how it will affect the financial terms of your divorce or separation?

Bankruptcy cannot discharge court-ordered obligations of child support, alimony or equitable distribution.  That means that even if you declare bankruptcy, you must pay support to your family.  It also means that if there is any money that will be divided among creditors, the family comes first.  

But what if you are not legally married?  Or if you are and you and your ex  just want a legal separation, not a divorce? Many couples who mediate or go through the collaborative process want a separation agreement, without planning to file it in court.  They are legal contracts, but the child support or "palimony" are not court-ordered.  Would those be discharged from bankruptcy?  Well, it seems that public policy would dictate that whatever money there is should still go to the family first.  But why risk it? 

You and your ex can agree to let the other know if you are thinking of declaring bankruptcy, to give the other a chance to go to family court to get a court order for child or "spousal" support.    That would keep your priorities straight - and make sure your kids get fed before the credit card companies.

If only the federal government thought that way!  

Are You Being Heard?

A visitor to Jerusalem goes to the Wailing Wall.  He sees a rabbi there, praying.  He asks the rabbi what he is praying for.  

  "Peace in the middle east," the rabbi says.  

  "How long have you been praying?" our visitor asks.

  "Every day for 25 years!"

  "And how is it going?  Do you think we are making progress?" our friend asks.

  "It's like talking to a wall!"  The rabbi exclaims.

I've noticed that one of the most powerful aspects of mediation is simply to be listened to.  

Often when a couple has been fighting, they each simply feel that they are misunderstood.  So it can be very validating - and perhaps healing - when I listen deeply to that point of view.  And it sends a message to the other person that that point of view is worth taking the time to understand.  

The quality of the mediation has a lot to do with the quality of the listening.  It's hard to explain that, but I really believe it is true.

   

Different Time Zones

I've been doing a few mediations lately where the timing of the partners is way out of sync.  It often happens in divorce that one person can't wait and the other is dragging his/her feet.  So what do you do?  Well, as my friend Rachel Green says, "A train can only go as fast as its slowest wheel."  

Mediation is a voluntary process. and it must be done in tandem, so the rabbit has no choice but wait for the hare to catch up.  This can be frustrating for the hare, but the best decisions are those that are made from a place of being relatively centered.  The key here is to think long-term!

A New Mindset!

"We are living in a society in which victims are compensated with money." - Rod Wells

Rod is one of my colleagues on the Board of Directors of the Family and Divorce Mediation Council of Greater New York, and he is also a Financial neutral in mediation and collaborative cases. He stated this at a meeting of the NYS Council on Divorce Mediation a few weeks ago.

If we come to a separation with that mentality, we must show how badly we've been wronged, for the worse off we are emotionally, the more we stand to gain financially. It focuses on punishing bad behavior for what has happened in the past.

Is that the collaborative process? No! In the collaborative or mediation process, we are looking to see how we can use the existing resources to get the best outcomes for every member of the family. Or to use the existing resources to increase what is available. (In other words, instead of dividing the pie up, make a bigger pie!) This keeps us focused more in the present, asking the question - what is the best outcome given where we are now?

It's a whole different mindset!

Either/Or or Both/And?

My friends and I used to talk about a concept of "both/and" as opposed to "either/or."  What we meant was that, when making group decisions, we could look for solutions that were good for the group as a whole - and therefore each person in the group (a win-win approach), rather than one person winning at the expense of another losing.  This really describes the basis of mediation and collaborative process, as opposed to litigation.   It's not about individual rights - it is about taking care of the needs of everyone in the family system.

In other worlds, you're not splitting up the pie in this way or that, you're baking a bigger pie!

Which Way Are You Facing?

One of the hardest and most important tasks in working with a couple is to get them to turn around.  They almost always come in, facing each other, arguing.   They see the other person in front of them, and often they are furious.  All they can see is what that person has done to them, all they can feel is the loss and rage inside that that person has caused.   

And then there are the logistics to work out.

And part of my job, like a ship captain, is to turn them around to face another direction.  Suddenly, the three of us (in mediation), or the four of us (in a collaborative process), are looking at something together.  We've got a problem to solve. How are we going to solve this problem?  Instead of facing each other, with blame and despair, we are working together as a team.

Because now the focus is on something logistical.  Something solvable.  And the couple is no longer each other's enemy.  Often this is the aha! moment - the moment when the insolvable seems suddenly manageable.

What Can You Agree On?

I'm excited because I just finished mediating a case that really worked.  

To be honest, the first time I met the couple, I really had my doubts.  If he said the sky is blue, she'd say, "you're lying - you know it's green!!"  I mean they couldn't agree about the most basic of facts.  But they both clearly loved their daughter, and they were both responsible parents.  The problem was that the mother wanted to move to another city, several hours away.  And the father had had the child just about half time.  And going to court to fight over custody just made everything between them worse.   At the end of the first session, I said, "Your daughter will be fine if she lives with you, or if she lives with you.  But she will not be fine if you keep fighting like this."

We met over several sessions - each a few weeks apart.  We worked on small agreements, to build up trust - when the child could call her other parent.   How they would notify each other.  We explored what they both needed.  What they both considered  to be fair.  

They were making a lot of progress (and even shook hands at the end of the 2nd session).  But they were already in court and we had that pressure looming over us.  Would they be able to come to a full agreement?  I realized that they probably could not.  The father didn't want her to move, the mother needed to go.    If they gave up on mediation, the judge would decide everything - not just where the child will live, but how much time the other parent gets to spend with her.  

I asked each parent to do some homework:  Assume the child is living with you.  How much time do they get to spend with the other parent.  They came tonight's session prepared.  They agreed to let the judge decide where the child will live.  And they agreed that they wanted to decide on the other parent's access to the child.  And they agreed that it should be the same plan, no matter which parent is "non-custodial."  So then it was a question of working out the details.

We worked for 3 hours, around a table.  We wrote things out.  We talked about the child's needs.  About the necessity of each of them keeping a very close relationship with their daughter. About how important it was for her to keep close relationships with her step-sisters and brothers on one side, and her cousins and grandparents on the other.  About the importance of school.  And consistency.  And predictability.  They agreed on so many things.   Then it was a question of working out the details - holidays, long weekends, summer, school vacations - that part, after the rest, was pretty easy.  

Once they let go of having to prove their case - why their side was better - they were able to really work together.  Even if they couldn't decide the whole thing, they were able to shape what they could of the agreement.  And because they worked out the visiting schedule without knowing who the child will live with, they both felt that it was fair.  

They were even joking around with each other.    And their daughter?  She'll be just fine.

Splitting up

"A divorce is like an amputation: you survive it, but there's less of you.” - Margaret Atwood

What started as a partnership in marriage (or coming together) has become a (perhaps unwitting) partnership in divorce (or splitting apart.) It is a long and painful process, particularly when there are kids or real estate involved. Which is the best process for you?

The Starbucks Approach. You and your partner can sit down over a cup of coffee and work out the details together. This works well if you have good communication, if neither of you have much property, and if there are no kids involved. It is obviously the cheapest.

Mediation. Here, you and your partner sit down for a series of meetings with a trained divorce mediator (usually an attorney or mental health professional). The mediator is a neutral person who structures the conversations to help you address the issues in conflict, and coming up with an plan to which both of you agree. The mediator then writes up the terms of that agreement. I suggest that each partner show it to an independent review attorney. The mediator or one of the attorneys can then file an uncontested divorce for you, incorporating that agreement. This works best for couples who are someone evenly matched in terms of power, who trust each other not to be hiding assets, who want a good working relationship after the divorce, and who want the terms of their divorce to be private. Mediation allows you to decide what is best for your family, and to shape a plan that is tailored to your family's needs. It is less expensive than litigation.

Collaborative Process. The partners each have their own attorneys who “hold the meditative consciousness.” In a series of 2-way and 4-way meetings, the attorneys guide the partners through the collaborative process, sort of a modified mediation. Collaborative attorneys are specially trained in mediation as well as divorce. The key here is that if the process falls through, each partner must get a different attorney to represent them in court. In other words, the parties agree from the beginning that they will not go to court or threaten to go to court in this process. The collaborative process often involves neutral child specialists and financial planners who can help the partners come up with plans for allocating financial resources and child-care responsibilities.

This is best for partners who need a little more support than those in mediation, but still want to retain control over the process, and stay non-adversarial. This is best for partners who want to keep a good working relationship in the future, and basically still trust the other to be honest about finances, and who want to keep the details private. It is more expensive than mediation, but still much less than litigation.

Contested divorce. This is the most “traditional” form of divorce, where each side has an attorney, whose job is to zealously advocate for their client. A contested divorce may be necessary if you think that your partner is being dishonest about his or her assets, and about how much money he or she earns. It can also be useful if there is an imbalance of power, or if there is any threat of physical violence. While nearly all contested divorces are settled out of court, there is often a lot of time, money and goodwill exhausted before that actually happens. If the case actually goes to trial, the judge will decide how much time you spend with your children, how to divide up your assets, and how much one will pay the other for spousal or child support. It may be necessary when there is an imbalance or power (or domestic abuse), where there are serious mental illness or addiction issues, or where one partner may be hiding assets. It can costs tens of thousands of dollars, and is often the most stressful for the partners and for the children involved. It can also drag on for months or even years.

Obama and Mediation

"In the end, then, what is called for is nothing more, and nothing less, than what all the world's great religions demand - that we do unto others as we would have them do unto us. Let us be our brother's keeper... Let us be our sister's keeper. Let us find that common stake we all have in one another, and let our politics reflect that spirit as well." -- Barack Obama, Philadelphia, PA, March 18, 2008.

Mediation is built upon a notion that people in conflict can work to solve a problem together. But to do that, we must allow ourselves to see what the Quakers would call "that of God" in the other person. We must disengage, if only for a few moments, from sparring with the other, and hear what that person is saying. It is at that moment that they will hear us. Light and air come in the room.

I am tremendously excited about Obama's campaign, because he is fundamentally inclusive. He understands, perhaps intuitively, perhaps by working at it, the very core of mediation. What would it mean if we had, as president, someone who was a mediator at his center?