The New Way to Divorce Helps Preserve Families

My practice has evolved over time to representing parties who have decided they no longer want to be married but want to maintain a relationship with their ex-spouse. They have watched their friends go through bitter divorces and want to avoid the hostility generated by a “divorce war.”

I’m pleased that I have been able to work with a community of like-minded family law attorneys to offer an alternative. While not appropriate in all divorce cases, this alternative does offer clients an opportunity to build a new, if different, family.

A friend of mine, a wedding photographer, tells me one of the biggest challenges of his work comes with attempting to juggle the divorced parents of the bride or groom. Miss Manners columns advise on how to handle the invitations and where to seat the parents and their significant others. Similar horror stories abound for other significant family events such as bar/bat mitzvahs, college graduations and even piano recitals and soccer games.

These events are for the honoree and the marital status of the parents should not cause tension. Often this bitterness is the result of an acrimonious divorce. While divorce will continue to happen, many family law attorneys now work with their clients to create a new way to divorce without the lingering hostility.

A family therapist who works with divorcing couples explains the progression of the couple’s relationship. When they first married, they became husband and wife, and when they had children, they became mom and dad. Now that they are divorcing, they will no longer be husband and wife, but they will always be mom and dad. Recognizing the importance of this relationship, couples are searching for ways to terminate the marriage and yet preserve the future relationship as parents.

There are several models for non-adversarial divorce. Washington has a growing contingent of professionals practicing collaborative divorce, mediation, negotiation and other non-adversarial ways of handling marriage dissolution.  There are several professional collaborations that include family law attorneys, mental health professionals, financial specialists and mortgage professionals. There are many smaller practice groups meeting regularly to hone their skills and learn from each other. It is interesting when the marriage counselors meet with the divorce lawyers and learn to communicate with each other.

Collaborative law has specific protocols where the professionals form a team with the divorcing couples. Mental health professionals may act as coaches for the parties, helping them learn to communicate in a more productive manner, or a child specialist may help the couple develop a parenting schedule that makes sense for the children and the family’s needs.

There are other models for non-adversarial divorce. Several attorneys have left the courtroom to work with couples as mediators to help clients forge their own marital settlement agreements and parenting plans. Some attorneys pledge to work cooperatively with each other in a non-adversarial manner. There is growing demand for unbundled services from attorneys who can assist couples with a “kitchen table” divorce, with the parties working out their own issues and the attorneys acting as facilitators for the legal process.

I have been writing about non-adversarial divorce in a small local paper for a number of years. The paper has an online version and I have received calls from attorneys in several states and even the United Kingdom requesting permission to reprint the articles in their local publications. These attorneys are primarily seeking better ways of serving their clients, but are also looking at how this model affects their own lives. They are looking at reducing the stress caused by highly litigious cases.

While forming a new family relationship in the midst of a divorce is a desirable goal, it isn’t always possible. There will still be a need for traditional litigation and I applaud the difficult work undertaken by my litigator colleagues. For family law attorneys who are feeling burned out, I do suggest they investigate the possibilities offered by these emerging dissolution models.

I have a picture in my office as an example of a new family created after divorce. It is a picture of my own daughter’s wedding with her husband’s parents, her father and both of her moms. My grandson finds it perfectly normal and quite desirable to have three grandmothers.

My family was also featured on the cover of the Seattle Times Sunday magazine as an example of "the good divorce." It can be done and the children, parents, and grandparents are the better for it.

Ten Things to Consider When Selling Your House During a Divorce

1. Selecting an agent to work with

Real estate agents tell me that their worst nightmare is a couple that can’t cooperate on selling a house. The real estate agent cannot represent just one of you and it is important to select an agent who can work with both of you. Your cousin’s wife is probably not the best choice. You need someone neutral.

2. Take care of the deferred maintenance

Your real estate agent will tell you that deferred maintenance will greatly impact the sale of your house. A few dollars spent here will yield a great return on investment.

3. Finish the remodeling projects

I used to joke that when a couple’s marriage is deteriorating they will remodel the house in hopes that that will repair the marriage. The stress of the remodel may create even more stress on the marriage and the remodel doesn’t get completed. Hire someone to complete the job at least minimally. A missing shower in the bathroom does not help a house sell.

4. Have a mechanism for resolving disputes over sale price or accepting offers

It is really disconcerting when an agent brings an offer to a couple and one of them won’t agree. Usually offers require a quick response and you don’t have time to call in a mediator. This is when it is important to trust your realtor.

5. Don’t let your house look divorced

Buyers want happy houses. When it is obvious one of the parties has moved out it gives the house a negative look. Empty spaces in the closet, a hole where the TV used to be, missing furniture all give a house a sad look. Cheer it up even if you don’t feel cheerful.

6. Make sure both of your lawyers are on board

You don’t want to have a last minute glitch because one of the lawyers won’t let his/her client sign final documents. By the way, be prepared to provide documents to lenders. Underwriters can get apprehensive when dealing with divorcing people.

7. Stay away during open houses and showings

Your sad face or tears as new people look at your house is not going to leave the potential buyer with warm fuzzy feelings about your house.

8. Make sure the contingencies meet your needs

Often the possession date can be negotiated. Maybe you need extra time to find a new place to live. Make this clear before you accept an offer.

9. Let your agent help you find your next house

An agent who has done a good job for you in selling your house will be even more motivated to help you buy your next house.

10. Trust your agent

This is a repeat of number one but it is critical. You and your spouse have to rely on this agent to do the best job representing both of you.

Is Your Divorce too Complex for an Amicable Solution?

Lately I have been seeing print and television ads for "complex" divorces, implying that some divorces require special handling by only those certain lawyers. Sometimes folks approach me and tell me they would like to engage in a respectful, cooperative divorce but their situation is too complicated. So when might a case be too complicated for an amicable resolution?

Surprisingly enough, a case is not more complex because there is a lot of money involved. Some of my most difficult cases are ones where there simply is not enough money to go around. Often there is a great deal of rancor or the parties are really desperate and can't seem to find a peaceful resolution. On the other hand, a couple that has substantial assets can work very well with a Certified Divorce Financial Planner (CDFA) or even their own investment advisor to work out a reasonable resolution and division of assets. So a divorce involving a lot of money need not be "complex" and certainly can be approached in a cooperative manner.

A family business can be a little more challenging. I have seen small businesses destroyed by divorce because the process was so invasive and time consuming. If a family business is involved there is even more impetus to a cooperative approach. A neutral business appraiser can be engaged to help the couple determine a reasonable value for the business and the couple can determine a way to divide assets in such a way that the business remains viable.

Some people believe (or have been led to believe) that a divorce is complex if there are children involved and the parents are not in complete agreement on a parenting plan. Again, (is there a theme here?) it is advantageous to approach a divorce with children in a cooperative manner. I often engage a mental health professional who specializes in children to help the parents determine a parenting plan that is child-centric rather than parent-centric. The children certainly will be much better off if their parents can demonstrate that they can resolve differences in a respectful manner.

The cases that are extremely challenging is if there is domestic violence or impairment by drugs or alcohol. (I mean serious impairment, not just one party drinks more than the other). While I do know of instances that have had amicable resolutions while dealing with domestic violence or mental impairment it requires a great deal of commitment on the part of the party impaired or the violent one. Unless they agree to treatment there is no opportunity for cooperation. In these cases I have a referral list of lawyers who will not make it worse and will treat their client with respect. You won't find these lawyers in a TV ad.

So there is my bias toward respectful cooperative divorce. Most likely your divorce is not too complex for this approach.

Divorce Stories: The Contractor, the Man Who Came to Dinner and Stayed to Remodel the House

The lessons learned from this story: Listen to your lawyer about the value of your case; just because you married the owner, it does not become community property and don’t remodel a house that isn't yours.

Dave loved to remodel houses. He loved high quality materials and foraged construction sites and surplus stores for sinks, unusual woods, windows and other tools of his trade. He had always loved remodeling houses. He remodeled a rather ordinary three bedroom rambler in a run down neighborhood turning it into a House Beautiful in the midst of Hot Rod Haven. They told him he could not sell it for an amount that would cover his costs even though he had done all the work himself and got most materials at bargain prices. He has, as they say, overbuilt for the neighborhood. Dave never got to find out what his house was worth as he lost that house in his first divorce.

After the divorce Dave continued to work odd jobs, mostly what we call under the table. Cash or checks cashed at the issuing bank. Money that IRS and ex wives wouldn’t find. Dave’s reputation for quality work was impeccable although things didn’t get done on time and he usually forgot to keep financial records. Nonetheless, Dave had plenty of work.

Nadine was recently divorced and wanted to remodel her kitchen. She met Dave through friends. She paid him $20,000 and he did a craftsman like job with which she was pleased. He started hanging around the house more and more and soon they became romantically involved. Soon Dave moved in with Nadine. Dave started some more projects on the house. A sun room would be nice. One with large bay windows of the highest quality and the most energy efficient. The back deck was demolished in preparation for a project some day. Dave asked Nadine if his adult son could move in with them. Dave turned the garage into a separate bedroom with private bath. He found modern fixtures and even some marble countertops. He had enough marble left to refinish the laundry room. The only house in the neighborhood with marble counters in the laundry room. New wainscoting in the downstairs family room and a new fireplace mantle would be nice. Somewhere along the way, Dave and Nadine got married.

Dave and Nadine fell out of love. Or rather Nadine fell out of love with Dave and asked him to move out. Dave couch surfed for a while and his son went back to live with his mother. Dave had a great personality and always could find friends who could provide bed and board in return for some nice carpentry.

Come now the divorce lawyers. Nadine was in no mood for a cooperative divorce. In her mind, there was nothing to cooperate about. It was a short term marriage, they did not have children and, in her opinion, there was no property to divide. They had never co-mingled their finances or obtained joint bank accounts or credit cards. Nothing to it. Or so she thought.

Dave demanded his “community property” share of the house. Dave had the mistaken notion that because they were married in a community property state the house became community and he wanted Nadine to buy out his share of the equity, at that time about $100,000. Dave was on his third lawyer and he finally recognized that the house remained Nadine’s separate property. However, he was determined to get reimbursed for his expense and effort at remodeling the house.

As I said, Dave did have a disarming charm and I agreed to represent him in negotiating a reasonable settlement. It would be “unjust enrichment” for Nadine to reap the benefit of Dave’s remodeling work without any compensation. Dave had already spent more than fifteen thousand dollars on his previous attorneys and I thought I could resolve the case easily in a few weeks.

Dave had no records of his out of pocket expenditures and, of course, no records or even reasonable calculations as to the number of hours he spent. In his mind, however, he felt entitled to $125,000 reimbursement. Nadine believed he was entitled to nothing and even had some notion that Dave owed her rent for the time he and his son lived in her house.

I often cite the statistic that 95% cases do not go to trial. This was the exception. Despite my best efforts, the case did go to trial. Both Nadine and Dave were determined to spend whatever they needed to in order to be right. Mediation and two fairly amicable lawyers could not convince them otherwise. Each just knew the judge would decide they were right.

Any guess as to the outcome of the trial?

Dave believed he should be compensated for the actual cost for time and materials for the remodel. A legal principle law provides that if Nadine paid nothing she would be unjustly enriched. The law also provides that Dave could only be compensated for the amount he had increased the value of the house.

Nadine’s real estate appraiser testified that Dave had actually decreased the value of the house because the bedroom replaced the garage and a house without a garage was worth less than one with. Also the unfinished deck diminished the value. Nadine’s appraiser had never testified as an expert witness and he contradicted himself several times. Our appraiser had spent hours and countless cases testifying as an expert. His pictures, analysis and testimony convinced the judge that Dave’s work, which was of unquestionable quality made the house worth $60,000 more than if had not been remodeled. Even without a garage. Sound good doesn’t it? Well, remember, Nadine had paid Dave for the kitchen remodel before they were married. That took the value Dave had increased the value of the home by only $50,000. Dave wasn’t happy with that but was willing to settle for $50,000.

But wait, there’s more. Dave performed the work while they were married and his time, skill and effort as well as the money spent on materials was all community property.

Result: Dave was entitled to $25,000 reimbursement from Nadine.

Listen to your lawyer about the value of your case; just because you married the owner, it does not become community property and don’t remodel a house that isn't yours.

 

An Amicable Divorce is Possible

As a seasoned divorce attorney I have observed the damage people do to their children and to each other when dissolving their marriage. Discussions over child custody, property division and support can become quite heated, especially considering the emotional aspects of dissolving a marriage. I truly believe there is an alternative and that a couple can end their marriage with respect and dignity. Not only is it better for their children, it is better for the individual. One can begin a new life without all the baggage of a bitter divorce!

More and more couples want to engage in a cooperative divorce but are not sure how to proceed. I have developed a model of cooperative divorce that works for many couples -- as long as they are willing to cooperate and be respectful. They don't have to agree on everything but at least be willing to talk!

My goal is to "Empower couples to dissolve their marriage in a respectful and cooperative way."

Attorneys all over the country are engaging in discussion as to how to make the process better. One alternative is to engage in a process called collaborative law. Collaborative Law divorces have a specific format. More information can be found at the web site of the International Academy of Collaborative Professionals. (IACP) http://www.collaborativepractice.com/ There are also local practice groups. I belong to King County Collaborative Law http://www.respectfuldivorce.org/ . These web sites provide more information and also have directories of professionals in your area.

I am interested in learning how others have handled their divorce without engaging in the well known divorce wars and to answer questions you may have about the process. I will also share stories of how my clients have faced various issues.

A local therapist offers the following quote:

"The success of a marriage should not be judged upon whether it lasts or ends but on how much growth it has afforded us."