The Future of Divorce Is Not in Court

The Future of Divorce Is Not in Court

If the Covid pandemic taught us anything, it’s that the way we always thought we had to do things may not be the only way. In fact, when it comes to the legal system, and in particular, family law, the old way of divorcing may not be the best way at all. The future of divorce will look very different from the past.

I believe the future of divorce is not in court. We’ve already seen a shift to Zoom hearings, and while at the start of the pandemic, it felt difficult and strange and not ideal, this necessary switch taught us that we can, in fact, find better ways to serve couples seeking to dissolve their marriages.

The future of divorce will happen outside the court room – photo by Headway on Unsplash

I don’t want to say that I’ve known this for a long time, but I have. Since I started practicing Collaborative Divorce, and as long as I’ve been a Mediator, I’ve seen firsthand that when a couple breaks up, the court system can’t look out for what’s best for them or their families.

By definition, a system needs to move people through quickly, and not necessarily efficiently or with an eye toward individual needs and circumstances. But a good attorney or legal team can.

Driven by the Insight Approach to Conflict Resolution, I approach Mediation with curiosity. This approach makes me more effective when there is conflict between divorcing parties. But instead of giving direction, I have learned to ask questions.

The Insight Approach helps me educate and empower clients to help them evolve through the course of their divorce. It’s a more holistic approach, which might sound touchy-feely and hard to understand, but now I have tools to make it way more concrete.

The more I get involved in this approach, the more I see how different it is from how typical family law practitioners do divorce. From the beginning with a client, I talk to them from a place of curiosity, so their experience is going to be different from the start all the way through the completion of their divorce.

Another tool that my Transitions Legal team employs with our clients is the Our Family in Two Homes workbook, which we give to every client before they begin their divorce to help them articulate their values and goals.

If you start with their values and concerns and ask questions that help reflect on their partner’s values and concerns, you can help divorcing clients change the narrative of their past, skip the arguing part and move on to their future. Doing the work beforehand helps me guide clients to the outcome they’re happy with.

Once you know how to do divorce with these thoughtful approaches, you can’t help but use it everywhere. It’s already built into Collaborative Divorce, which by definition seeks to divorce through a team approach that brings not only the spouses to the table with their attorneys, but also with the support of a team that includes mental health professionals, certified divorce financial advisors and more when needed.

I approach each divorce case with curiosity – photo by Hasse Lossius on Unsplash

The idea of Insight is not to tell people what to do. In the moment, when they’re going through their divorce, they might want to be told, but ultimately, it’s up to the client. I know how overwhelming and futile it can feel to be going through the end of a marriage you didn’t expect to end. No one does! But that doesn’t mean it’s OK for a lawyer to make decisions for their clients.

I can make suggestions or recommendations, but if the ideas come from the clients themselves, then they’re more likely to be happy with the outcome.

There are so many stories of court-based divorces where a client agrees to settle and then comes back to the lawyer months or even years later, unhappy with the settlement. The lawyers say, “But you agreed to this.” And that may be true. Or maybe they felt exhausted and pressured to just finish the darn thing or agree in the moment, but ultimately it never aligned with what they’re most concerned about and what they value.

A court is designed to make decisions for people. To put people in positions of power to apply the law as objectively as possible.

But a divorce is anything but objective. Which is why I don’t see the future of divorce remaining in the courts.

If we want families and individuals to thrive, we must approach each divorce with curiosity and questions to guide the people involved to their ultimate best destination. Every single client is unique, with their own interests, desires and challenges. A court can’t see that, but you we can. And that’s the only way to achieve the dissolution of a marriage with concern, care and compassion for the people most affected by it.

Focusing on Dads in Divorce Court

Focusing on Dads in Divorce Court

dads and divorce

Photo by Vitolda Klein on Unsplash

By Alisa Peskin-Shepherd

For the longest time, mothers got custody automatically. But now, in an effort to correct a perceived injustice against men, courts and law firms alike are focusing on dads, circulating legislation to establish mandatory equal parenting time motivated by dads groups.

It’s like a pendulum swinging from one extreme to the other, and I hope to eventually see it settle in some middle ground with the focus solely on what is best for the children.

This change began when I started my career in family law in the early 1990s. I cannot remember a case where it was an automatic win for the mom. Yes, moms were still favored, but it wasn’t automatic.

Over the last 20 years, it’s really intensified, as newly-elected judges brought their perspectives on the idea of parenting time to the bench. Sometimes it feels like it doesn’t matter what the law says.

You can walk into one judge’s courtroom and know that they are a “50/50 judge,” which means they start from an assumption of equal parenting time and if you want it to be something different, you better show a good reason why. It is really difficult to get them to move.

Litigation in such a courtroom is quite challenging when you know there is a good reason to skew the amount of time children spend with one parent or another, or even just where they will lay their heads at night. Sometimes it’s as simple as the roles parents played while they were married. You can’t draw a sharp line in the sand when you split, making everything change immediately.

some dads become better parents after divorce

Photo by Larry Crayton on Unsplash

When one parent has been the primary caregiver, it’s uncomfortable not only for the parent but for the children, to suddenly be ousted from their job or role and the whole family thrown into a very different routine.

It’s challenging, too, for the non-primary caregiver, who may have no idea about a lot of what goes into taking care of a toddler or school schedules or carpooling and they’re forced to step into a very different role without guidance or transition. They may be too proud to ask for help.

A divorce is often not the most collegial of processes, which means parents on both sides may feel uncomfortable asking the other for guidance in their new role. Which is exactly what they need.

When you get into court, you’re positioned against each other so instead of recognizing these natural human elements, it becomes a fight, where they won’t talk about or look at options.

If we want to move towards promoting more equal parenting time, then depending on the real life situation, it may be best to move toward that point  in stages.

That way, it’s less disruptive for the children, while giving time for both parents to transition into new roles.

Dads can learn how to be better as solo parents after divorce

Photo by Edi Libedinsky on Unsplash

Depending on the ages of the kids, I recommend giving six months or a year to make a change, giving both parents space to learn about their new role. The kids also can gradually transition into the changes.

In the divorce world, most attorneys fail to and some even refuse to talk about the impact of all of this. The focus is instead on  the outcome . I wish we recognized how kids bear the brunt of adult decisions. For instance, they’re the ones shuffling back and forth between two homes – not the adults who initiated the divorce!

I yearn for a time when divorcing parents can put their hurt and anger aside in exchange for a focus on their children, who didn’t ask for any of this. This means not just talking the talk, but showing it by the compromises and agreements they make. Parenting time must be about the children – not about the parents!!

I prefer to look at parenting time as the parent’s opportunity to spend time with that child, on the child’s schedule. Whether you’re a mom or a dad, you can and should be more involved in school, spend more time with your children doing things of interest to them, and cherish this time, even if it’s not an overnight.

It takes humility on both parents’ parts to recognize their strengths and weaknesses, and cooperation to work together, but in this model the focus is completely on the children. Which is how it should be.

When Do We Become Adults?

When Do We Become Adults?

When Do We Become Adults?

We live in a politically correct world where all people are supposed to be treated as equals. Which is why I found a recent family law case is particularly noteworthy.

In the legal system, a child becomes an adult when he or she turns 18. The court treats them like adults, punishes them like adults, gives them the freedoms and responsibilities of adults.

Not in the case of divorce.

Is it good that we treat children of divorce different from other children? I’m not sure. But we do treat them differently.

One instance of that occurs when an 18-year-old child is still in high school and living at home. In that case, a parent is still obligated to pay child support – until the age of 19 and a half, or until the child graduates high school, whichever comes first.

So if a parent is obligated to pay child support, shouldn’t the child be obligated to spend time with each parent as decreed in the divorce judgment?

You might think so.

The case I was arguing involved a child who did not want to go to his dad’s house for parenting time, but his dad still had to pay child support. He decided he didn’t like dad’s rules, so he lived with his mom.

I argued based on my interpretation of the relevant statute, (Section 722.27(1)(c) of the Child Custody Act), that the court had the authority to enforce the parenting time schedule set forth in the parties’ Judgment of Divorce.

Think about it practically: if the dad (my client) had to pay child support, then shouldn’t he also have the right to see his son and continue to parent him?

Shouldn’t the mom continue to be obligated to send the son over to dad’s house as she had to when he was younger than 18?

The Judge disagreed with my interpretation of the law.

“Oh, so now we’re going to treat children of divorce differently than other children?” I challenged – we do.

“Yes,” the Judge replied. “Maybe we are. They are having a different life experience, after all.”

Not only do I believe in consistency, but I believe the law requires it as well, so, in the case of divorce if the court can mandate that child support continue to be paid on behalf of a child, I believe the court should also modify or enforce the parenting time agreement.

My argument was that the statute provides the Court with the authority “to modify or amend its previous orders for proper cause shown or because of change of circumstances until the child reaches 18 years of age and, subject to section 5b of the support and parenting time enforcement act . . . [that requires a parent to pay child support] . . . until the child reaches 19 years and 6 months of age.

Simply put: if the Court wanted to enforce it, the precedent exists.

Said the Judge: “When you’re 18, you’re an adult in the eyes of the law. That’s the age of majority, and the courts don’t retain jurisdiction over you except for child support purposes. A parent still has to pay child support for that child until he/she graduates from high school or turns 19 1/2, whichever happens first.”

Interesting, isn’t it? If you are not divorced, when your child turns 18, you no longer have a legal obligation to support him/her. You also, legally, can’t make him/her attend school.

And yet, is that realistic if your child is still living in your house?

It comes down to a question of whether the law should say (more clearly and without fear of the unpopular result) that an 18-year-old child still needs guidance and parental support.

There are so many children in this country – and throughout the world – with no parents to guide their way. They are desperate for the love and nurturing that comes with guiding parental oversight. When we have it, we want to shrug it off.

I suggest that we look at a broader picture of “need” when it comes to family – parenting time may be a pain for an older teen, but that precious guidance a parent can offer is priceless. Let’s not throw away the very compass that has set us on the right course up until now.

Read more Kids & Co-Parenting posts

The Cost of Divorce

The Cost of Divorce

The Cost of Divorce

Does anyone believe divorce doesn’t come with a price?

I’m not just talking about the lawyer fees, court fees, mediation fees.

I’m not just referring to the cost of selling a house or moving to an apartment or the cost of not having your kids with you every day.

And I’m not just referring to the cost of a relationship you had thought would last a lifetime that suddenly no longer remains intact.

Plain and simple, divorce is an expensive business; and when faced with the expenses, we lose perspective, feel uneasy and cannot see that eventually, things will balance themselves out.

Recently, I worked with two different clients who both faced financial constraints as most clients do. One client, a man, left a marriage of nearly 25 years, which produced three children. My client was devastated when his wife decided to end the marriage.

While she didn’t work much during the marriage, she did manage the household, the children and the family’s finances.  As part of being the financial manager, the wife kept some of her own assets separate from her husband’s and what the husband believed they were building together during their marriage.

When they divorced, by law, the wife was entitled to keep her separate property, and they split everything they had built and shared during the marriage.

So from the husband’s perspective now, his former wife is doing quite well and the ex-husband is feeling more significant financial constraints because in addition to the wife keeping her own assets, the husband has a pretty hefty bill of child support and spousal support.

There is this concept that money is energy, and it must flow in and flow out. When we are gripped by fear, though, we often don’t feel comfortable letting it go – for fear that it won’t come back.

The thing is, when we cling to our money too tightly, it stalls the energy flow and we create an even bigger problem.

It’s all about perspective. There’s a bit of truth in every perspective, but we all know the grass looks greener in someone else’s yard.

Now, post-divorce, the former wife keeps finding things to fight about (she just can’t let go, as happens with many clients, actually) and she keeps calling in her attorney.

To my client’s credit, he is trying to not involve me but to communicate with his ex-wife directly to work out issues because he knows that it is the better way, and he also wants to avoid having even higher legal bills.

Yes, he created the situation – he believed they’d be married forever, and he was devastated to see that dream crumble. I know my client is having a hard time financially – and there’s nothing I can do about it because it’s what he agreed to.

Still, it breaks my heart to see such imbalance.

Another client, a woman, was young when her marriage ended. She worked an occasional contract job to bring in extra cash during the marriage, but her primary role was to care for the children and manage the household.  She’s now receiving spousal support and looking for permanent work. She’s having a hard time even still because at 40, it’s hard to begin a career.

And the worst part is that the ex-husband is now late in making his payments due to some variation in his  income from a second job about which he is passionate and which largely subsidized their family income during the marriage. The ex-wife stayed in the marital home, and she probably can’t afford to keep it.

We hold onto things because we want to hold onto what was, or because we think it is best for the children – but probably, we need to break free and start over, in a more affordable, manageable way, creating a new life, a new definition of self.

Nevertheless, from this ex-wife’s perspective, her former husband is still controlling the money and purposefully causing her additional financial hardship. The husband is probably thinking his ex-wife can afford everything because of what he is (or is supposed) to be paying for spousal support.

Who really knows – all we know is that it’s a tough financial road for her at this point in time. And the perspectives can be drastically different.

As happens with every divorce, these families are facing very new situations, emotionally and financially. In my experience, I’ve come to see that everything does settle out over time. It just takes time and we’re often not all that patient.

In each of these cases, very different divorces, very different people, one receiving payments, one paying out –both individuals are struggling.

If for even a moment, you can recognize the other person’s perspective, you might feel better. It’s not the time to try to empathize with the person who left you, or whom you left.

But for your own sake, internally accepting that the other person may be struggling,too, may offer moments of peace amongst the chaos.  And, over time, the finances, along with your emotions, will balance out. Try to be patient.

Read more Family Law posts

The Power of the 11th Hour in Last Minute Divorce Negotiation

The Power of the 11th Hour in Last Minute Divorce Negotiation

The Power of the 11th Hour in Last Minute Divorce Negotiation

Sometimes finding creative ways to reframe divorce settlements can ease tensions.

For example, a client’s husband found it more palatable to pay attorney fees directly to his wife’s attorney rather than to pay his wife money as property settlement which she would then use for her attorney fees. It’s all the same amount of money; creative redistributing can make an easier outcome for all.

Small shifts can make a big difference when feelings of anger, sadness or uncertainty are involved. Although I was prepared to improve my client’s settlement, she and her husband agreed on our bottom-line offer.

If you’re caught up in a last-minute divorce settlement, remember to step back and take a deep breath.

As divorce trials approach, the hours before a court appearance can be filled with last-minute negotiations and rounds of offers and counter-offers.

Emotions between the divorcing couple run high, and it’s easy to lose sight of the big picture, the context and the greater good.

There’s a fine balance between taking on the other person’s perspective to get closer to settlement and making sure you maintain enough of your own perspective that you don’t settle for too little. The offer on the table must be weighed against the cost of extensive attorney fees for trial and the possibility that a mediated or trial settlement could be better or worse.

There is no sure settlement in court, even though the current offer may fall short of your expectations. Weigh in on the costs of continued litigation with the financial reality of the result you seek – and the emotional impact on family members who are directly involved in the restructuring of your family, especially your children.

Read more Legal Process posts