Decision Making

     Divorce is a life changing event even in the best of circumstances.  Perhaps you have done your due diligence, considered all your options, and decided that divorce is the best way to move forward.  Maybe your spouse has made that decision and you are just being hit with it.  Either way you are likely to have some trepidation about what your post-divorce life will look like.  Although you have accepted the fact that your life will change, you still do not want to lose control of what your life will look like after the divorce.  

     You have always planned for your financial future, carefully researched investments, and made informed decisions about matters such as your children’s education and their general well-being.  You have heard horror stories about divorce, and you fear that you will quickly lose control over your post-divorce life once the court system gets involved.  You fear that you will be boxed in by the process and the informed decisions that you normally make will be pushed out of the way by standard procedure.  

    The horror stories that you have heard about the divorce process may well be true. Traditional divorce tends toward standardization whether it is best for the parties and uses given information for their benefit or not.  Mediation may allow some more control, but that process is often constrained by time, threatened by judicial control, and still tends toward standardization.  

    Fortunately, there is a process in the Texas Family Code that allows parties to continue to make informed decisions about matters that are most important to them, such as finances and children.  It is called Collaborative Divorce.  This process allows the parties to have the greatest control over what their post-divorce lives will look like.  Here are four reasons why divorcing couples that have committed to the collaborative model have the best chance to continue to make informed decisions and have greater control over what their lives will look like after the divorce:

1.   Collaborative Divorce is Focused on the Future

     While some during-the-marriage issues may need to be worked through in the process, the main goal in collaborative divorce is the future.  In other words, a Collaborative Divorce focusses on what the divorcing parties’ lives will look like after the divorce.  While this may be an interest in traditional divorce, it is not as primary as in collaborative divorce.  In the collaborative model, each party’s attorney along with two neutral professionals will assist the parties in reaching an agreement that is beneficial to the post-divorce goals of the parties.  

2.   Assistance from a Financial Professional can make for a “Money Smart Divorce”

     An article in the December 2018 edition of Kiplinger’s magazine entitled, A Money Smart Divorce,” made me think of one important benefit of collaborative divorce.  The article is not specifically about collaborative divorce, although it does mention it as a more civil alternative to traditional divorce.  The article addresses the fact that the way assets such as retirement or IRA accounts get divided in a divorce can make a huge difference in terms of tax liability.  Sending a large portion of community assets to the IRS after divorce is certainly undesirable, especially when it is avoidable.  

 A judge is unlikely to consider tax ramifications when dividing your assets.  Your attorneys may mean well, but most of us are not as knowledgeable in financial matters as we would like to be.  In collaborative divorce, however, you have the benefit of a financial professional (FP) who is well-versed in financial matters and knows how to execute account division to avoid unnecessary tax liability.  

The FP is neutral to the divorcing parties and has the expertise to allow each of you to make an informed decision on how division of accounts can be managed to maximize the total amount of money to be divided.  This gives each of the parties more control over what their post-divorce lives will look like by helping them to keep more and waste less. 

3.  The Mental Health Professional can be Helpful in Addressing Future Issues of Concern

     One of the scariest things about divorce is the possible effect that it may have on your children.  The change in relationship and time with your children is unavoidable but need not be disastrous.  You are probably concerned with making the transition as smooth and easy as possible for your children.  You may have specific fears or situations that you want to avoid in the future.  In collaborative divorce you have a mental health professional (MHP) to help you work through those issues.  

     Like the FP, the MHP is also neutral to both parties.  The MHP will offer ideas and assist the parties in coming to agreement about what the children’s post-divorce lives will look like considering the goals and concerns of the parties.  You will have more control over your future with your children than in traditional divorce because you can express your goals and concerns regarding your children to the MHP not just your attorney.  The MHP is concerned with helping each party get to an agreement that satisfies their desires for their children’s future and alleviates their fears. 

4.  You are in Charge – Your Attorney’s Role is to Assist You in Reaching Your Own Agreement

     In traditional divorce the attorneys play a much more dominant role.  There are certain advantages to this in adversarial situations and there are valid reasons for it.  While attorneys in a traditional divorce may be open to and even working toward settlement before trial, they also must prepare for battle if there is no agreed resolution.  This requires gathering evidence that they will need to use, posturing, and possibly holding back in negotiations that may lead to settlement.  While mediation may get the parties more involved in the process, it still tends to focus on what is likely to happen in court rather than what the parties really want.  

     In Collaborative Divorce the entire focus of the attorneys is to assist the parties in getting to an agreement that they both want.  For the attorneys, there is no backup plan.  Once the parties have committed to collaborative divorce, they cannot continue with their current attorneys if they chose to let the court decide their issues.  While this fact should be carefully considered before committing to collaborative divorce, it is also what makes it work so well.   Your attorney represents only you and can help answer your questions and advise you, but without the possibility of litigation for the attorneys, they are free to assist the respective parties in reaching their own agreement. 

    Collaborative Divorce may be a good solution for who need to separate but want to continue to make informed decisions and maximize control of their post-divorce lives.  If you are curious or have questions about Collaborative Divorce, the best way to find out more about it is to talk to an attorney who is trained in Collaborative Divorce.  

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