Men, Women, Mars, Venus, etc.

I made a presentation recently at the Montgomery County Women's Commission, which sponsors a regular series of seminars on divorce and separation. There were about 20 women in attendance for whom divorce is not an academic issue -- they are in the process of getting divorced or thinking about it. The session went well, there were lots of questions and the feedback was positive. I was happy to help, and of course it was not completely altruistic on my part because it is networking like this that can lead to new clients.

I'm often asked because I'm a woman if I more often represent women than men. The answer is no, and in fact my clients are pretty evenly divided between men and women, which I think is true for most attorneys. It's a good thing that representation is not determined by gender, because men would be out of luck, given that the overwhelming majority of divorce attorneys are women.

There is a lot of discussion about why that is so, with explanations ranging from the fact that women have a tougher time in the male-dominated world of corporate law to the Mars-Venus theory that women are more sensitive and caring.

I'm agnostic about most of that. When I got out of law school, I found my first forays into the legal profession stifling and boring. In fact, I fled to cooking school and worked for several years as a pastry chef before returning to the practice of law. When I did come back, I trained for a specialization in family law because it appealed to me as a way to help people at an emotionally trying time in their lives.

Does that mean I fit the Mars-Venus cliche? I also like chick-lit and romantic comedies, but who knows? There are many men who are able and successful divorce lawyers and many women who are hard-nosed corporate lawyers, so I'm not sure professionals are all that easy to categorize.

What I do know is that family law works for me. I find it rewarding and satisfying, especially when alternative forms of dispute resolution like mediation or collaborative help avoid confrontation and ease emotional trauma. To me it's not about men or women, but about people who need help getting through an important transition in their lives.

Getting on the same page

One of the standard practices in a collaborative case is to use part of the first session to read the collaborative agreement out loud before the parties sign it. This strikes some people as a bit old-fashioned in the digital age but, given the importance of this agreement in making collaborative work, it's really pays to have everyone on the same page. My experience is that people often don't read an agreement through before they sign it, even if they think they did. But it is absolutely crucial for each party to be aware of what they are agreeing to do because if the collaborative attempt fails, the divorcing parties have to go back to square one with a new set of attorneys.

I had a client recently, for example, who balked at taking the time to read through the six-page document. He'd read it, he said, and was ready to sign. But we insisted and as we were reading through it he was quite surprised to find out he would be obliged to disclose certain types of information. Hearing it put like this, he decided maybe collaborative wasn't for him, after all. How much better to come to that realization in the half an hour or so it takes to go through the agreement rather than spending the time and money on hours of collaborative discussion only to have it fall apart when the disclosure is actually requested.

Collaborative is a new type of procedure for alternative dispute resolution, with a different set of rules. It is a procedure based on openness and communication. It just makes a lot of sense to begin that process by getting everyone, literally, on the same page.

Workshop

I had the opportunity last week to attend what may be the best professional workshop I've ever taken part in. It was a three-day seminar in Advanced Collaborative Practice taught by Pauline Tesler and her colleague David Fink.

First of all, Pauline, who practices in northern California, is the guru for collaborative law. In terms of the depth and commitment she brings to it, she is just the best. Second, this workshop at University of Maryland Law School in Baltimore had a limited group of just 15 people, including seven of us from the DC practice group, so the sessions were tailored to our specific needs and were enormously beneficial for that reason.

This is not the place to go into detail about the actual workshop. It was mostly techniques and role-playing, so difficult to describe anyway. In essence it was about being able to understand better what your client is saying, and to help the client understand what they want. Because most of us taking part already had a lot of experience in collaborative, it was particularly helpful for us in taking our practice to the next level.

My other takeaway was that I'm more convinced than ever that collaborative really is the way to go for most divorce cases, and it encourages me make that case with new clients who are amenable to it.

Prenups

I've been getting a steady stream of clients seeking prenuptial agreements, which is good because it means people are finally catching on that prenups are not just for rich people.

There are, in fact, a number of situations where a prenup might be desirable. A prenup is not a bet against a marriage – it is simply part of prudent planning, because no one knows what the future holds. It is easier to make decisions when romance is still in full bloom and so forestall long court battles if things do turn sour. Often, having an honest discussion about financial and other matters before marriage can strengthen the commitment of the partners.

Some of the major issues that can be covered in a prenup are splitting assets – the classic case of what is held outside marital assets; who pays off what debt – especially relevant in this age when school debt can run into tens of thousands of dollars; one partner makes significantly more than the other; financial support for a spouse who gives up a career to care for the children, or any agreement on settlement or alimony. When there are children from a previous marriage, a prenup can be desirable to protect their inheritance.

There are also a range of minor issues like keeping certain items, such as heirlooms or other favored possessions, even a pet; dividing a home fairly – particularly if one partner’s existing residence becomes the family home;  or how long a spouse or kids can remain in the home after a divorce.

There is also something called a “postnup,” though some things can be more difficult to discuss after you’re married.  A postnup might be desirable if a spouse starts a new business with outside partners, or to clarify ownership if one spouse acquires property with pre-existing assets. 

Sometimes it is just one of the partners who is eager to get a prenup. The other partner in this case should not just go along and sign whatever is put in front of them, however. It is always a good idea to have your own attorney review the agreement. This usually doesn't take long and does not need to cost a lot of money, but you don't want to sign away claims that the law might give to you if it does eventually come to divorce.

Conflict resolution

Collaborative divorce tries to be as non-confrontational as possible, but that doesn't mean it's a warm and fuzzy experience. Divorce inevitably entails a certain amount of conflict, and the reason each party has their own lawyer and divorce coach in collaborative is to help work through to a resolution of this clash. And sometimes it is a lot of work, with considerable tension and a certain amount of frustration. But the end result is usually a solution that you can live with because you own it -- you worked for it.

When there's no children or complex financial assets involved, the parties themselves can work out a separation agreement, with or without the assistance of attorneys. There is no need to involve divorce coaches or meet in several sessions to hammer out the tricky parts.

Other cases are well-suited to a mediator, who facilitates communication between the parties and helps them reach an agreement.

But sometimes there are complicated matters that may be disputed, that the professional expertise brought to bear in the collaborative process can be most effective in hashing things out. The lawyers can help their clients understand the jurisprudence on various aspects of custody, child support, spousal support, division of marital assets -- the array of difficult issues that can lead to prolonged litigation. But in collaborative, rather than passing each other in the night in a long series of depositions and disputatious motions, the parties can literally put everything on the table and work through to a settlement both of them consider fair, or at least fair enough. As I discussed in my last post, divorce coaches can help each party keep matters in perspective and not let emotions cloud their judgment too much. And when financial assets are particularly complex, collaborative provides for a neutral financial expert to sit in and use his or her expertise to help run the numbers.

At the end of day, collaborative is a form of alternative dispute resolution -- and each of those words counts. It is an alternative to the litigious confrontation in court, which can sometimes lead to seemingly arbitrary decisions. But there is a dispute, and collaborative provides the tools and expertise needed to face these conflicts head on. And the objective is to reach a resolution. A key component of collaborative is that the divorcing couple will have to find new representation for litigation if they fail to reach a resolution with the lawyers they engage in a collaborative process.

So it's not always fun and it's not always pretty, but collaborative can be an effective way to get the job done.

Divorce coaches

In one of my current collaborative cases, the divorcing couple opted not to include divorce coaches, saying they didn't think they needed them. Without going into any details, let's just say that the process would undoubtedly be going better if they did have the coaches. The lesson I've learned is to really encourage the partners to take advantage of this kind of professional expertise.

Having mental health professionals take part as divorce coaches is one of the great innovations of the collaborative process, in my opinion. These professionals work as therapists, but their job in a collaborative divorce is not to provide therapy. Rather, they use their background to help their client -- each partner has his or her own coach -- keep the right emotional perspective.

Divorce, obviously, is highly charged with emotions, many of them negative. The divorce coach helps the client to recognize these emotions and to accept them, but not to let them cloud their judgment about what is in their best interests. In traditional litigation, it can be quite amazing how one or the other partner loses all sense of perspective. He or she will spend thousands of dollars extra to oppose some financial provision that at the end of the day is worth far less than the extra money spent -- only so they can lash out at their partner.

Family lawyers often end up spending a lot of time -- a lot of expensive time -- handholding or calming down a client. We do the best we can as amateur psychologists, but we are lawyers, not trained mental health professionals. Therapists who spend years working with clients to help them understand their motivations and fears are so much more skilled at getting to the nub of the matter and helping the client get over some particular emotional hump.

Yes, you pay extra fees to have a divorce coach sit with you at the collaborative sessions, but even as a financial calculation you will almost always save money by moving the process along more quickly and not paying the much higher hourly fee to your attorney for pop psychology. More to the point, these skilled professionals can help you feel better about what you're doing and about the settlement you reach. They are one of the big reasons that collaborative divorce can be a constructive process that lays the basis for a quick healing and a happy future.

Year 2

As my second full year as a solo practitioner draws to a close I have to say I'm happier than ever that I took the step of branching out on my own. I worked for more than a dozen years as an associate at two of Washington's leading family law firms and learned a lot at each one. It's great now to have the opportunity to put that hard-won expertise to work in my own firm.

There is, of course, the satisfaction of being your own boss and of depositing all of your billing receipts, even if you have to pay your own overhead, rather than taking the fraction of them a firm pays to associates.

More important, having my own firm means I can practice the type of family law I believe in. We have to have our courts, but most people are better off avoiding that ultimate step and finding ways to reach a fair settlement short of going before a judge. My philosophy is to provide the client with an honest assessment of what is achievable and then advocating for that result through the collaborative process or whatever other form of dispute resolution -- including court -- is necessary.

But what has made my experience especially satisfying is being able to set up my practice in the Collaborative Practice Center of Greater Washington. This means that even as a solo practitioner I have the benefit of wonderful colleagues in our really great office space at Dupont Circle. And, much as I love lawyers, having mental health professionals among those colleagues adds a different dimension to the atmosphere in the office. This creates a great working environment that supports not only clients who opt for the collaborative process in their divorce, but for other clients in litigation and mediation as well.

Being master of my own time has other benefits. It has allowed me to spend pro bono hours on cases where people can't pay or pay right away, as well as on the Collaborative Project of Maryland, which provides assistance to low-income couples willing to try the collaborative process. It also permits me to take on some responsibilities in the practice groups I belong to and to build further expertise in continuing education workshops and conferences.

My practice has grown steadily and last month I took the big step of hiring some part-time help by sharing a paralegal with the other law firm in the Center. In family law, obviously, you live from client to client. It's not like a corporate practice where you have the same clients for years. Once you finish a divorce that's pretty much it for client, except for the occasional change in custody arrangements or child support payments. There's never a guarantee that a new client is going to walk through the door.

Fortunately, they do! I've done some marketing through online outlets. Who knows, this blog and related social networking may also help in reaching out to new clients. But most clients come now, as they always have, from referrals -- from former clients, from fellow lawyers and from other collaborative professionals.

So even though I haven't quite closed the books on 2012 -- I've actually scheduled some meetings for next week between Christmas and New Year's to accommodate clients -- I can look back with a great deal of satisfaction on the two years of my law firm and the Center. I'm grateful for the support from my colleagues here at the Center, in the collaborative practice groups, and in the wider community of family lawyers in the DC area, and looking forward to a new year of moving forward with my firm.