Collaborative Divorce – Clients Going Off On Their Own

In the Collaborative Divorce Process, there is a collaborative team put into place to support the divorcing couple while they move through the settlement negotiations leading to a legal divorce.  Depending on the needs of the clients, the team could include a financial professional, a divorce coach or a child specialist, in addition to the attorneys. The collaborative team meets with the parties in a series of sessions designed to give them maximum support, input and information during the often difficult divorce discussions. Decisions are made within the context of the team meetings, so there is maximum input and structure from the team members when important negotiating decisions are made;  decisions that may significantly impact the parties for some time to come.

However, there are instances when the parties, either with or without informing the collaborative team, decide to speak directly with each other outside the collaborative process. This may be done with a desire to speed up the process, save fees or with one party having more nefarious intentions in mind, like taking advantage of what may be inherently unequal bargaining postures or dynamics between the parties.

When such a situation occurs in the Collaborative Divorce process it is ideal if the clients “going off on their own” to negotiate final decisions is first discussed with the attorneys or another collaborative team member.  Certainly it is a good idea to allow the parties maximum flexibility in their own process, especially when they are both communicating with each other in a civil and respectful way and when they already have the necessary information to make final decisions.  If this is the case, even if the parties are not successful in resolving issues by speaking directly with each other outside the collaborative process, they can re-enter the process knowing they did what they could to finalize matters themselves, despite the fact it was not successful.

The more problematic situation is one where the clients go off on their own outside the collaborative process, but they have never actually had the communication skills to have similar discussions while in the marriage. Here, if  the couple’s  only motivation is to save money or for one or the other to get a leg up, the prospects for disappointment, frustration and a cessation of acting collaboratively can be high. Thus, the collaborative team faces a dilemma when such a situation occurs.

At least if there can be a discussion beforehand with one or more of the team members about setting ground rules and boundaries for such out of process direct discussions, the parties have a better chance, however things turn out, to remain in a collaborative mode with each other.  However, where they start negotiating with each other unilaterally outside the support of the collaborative team, it is often difficult to resurrect the collaborative approach within the team structure, if such direct negotiations result in a further lack of trust and a decreased willingness to be open to compromise.

The Task of the Financial Professional in a Collaborative Divorce Case

The Financial Professional in a Collaborative Divorce case plays a significant role in the process. The Financial Professional must ascertain through diligent document review and examination of records, as well as by dint of experience and knowledge, the clients’ financial landscape.  This means whatever assets, obligations and financial goings on that are part of the clients financial portfolio must be thoroughly understood by the Financial Professional, and then clearly explained to the clients and the attorneys.

This task would be relatively straight-forward if the parties’ assets included only a residence, vehicles, several bank accounts, IRA accounts and credit card debt. However, few cases are this straight-forward. There may be retirement plans that were contributed to both before and after marriage; there may be a business owned prior to marriage that experienced financial growth during the marriage; there may be a residence owned prior to marriage that remained in the owner spouse’s name but  whose mortgage was paid with monies generated by the martial community; there may be an inheritance received  by one spouse, normally sole and separate property, that was used in various ways to benefit the marital community.

These are just a few examples of some of the more complex issues that must be sorted out and understood by the Financial Professional and then presented in a way they can be clearly understood by the parties. Such understanding is required before a discussion of the financial issues can commence and a final disposition of the financial issues undertaken.

As important as the foregoing tasks may be, equally important is the Financial Professional’s complete neutrality in the process. If there is any perception or hint that the Financial Professional has not in all ways maintained neutrality in the process, the entire collaborative effort may be irreparably harmed.

The work of the Financial Professional has a significant impact on the parties and the integrity of the process itself. This is why the Financial Professional selected to be part of the Collaborative Team has been extensively trained and has had years of experience working with clients in the financial arena.

Divorce Mediation Guidelines

Divorce Mediation is a voluntary process and is most likely to be successful if the parties are willing to make a good faith effort reach agreement. However, there is no legal obligation to either mediate or to agree any particular settlement.

Agreement in Mediation can be reached only when the parties have determined beforehand that their marriage relationship is ended. All questions of marital fault and blame will be disregarded in Mediation.

The Divorce Mediator is not a marriage counselor and will not attempt to reconcile the parties’ marriage.

Divorce Mediation is conducted in a spirit of cooperation and a willingness to listen to the other party.

The Mediator serves in the capacity of impartial third party and does not make decisions for either party or specifically advise either party how they should decide any issue. The Mediator will help provide options and alternatives in decision-making.

The Mediator provides the factual and legal information the parties need to make decisions and reach agreement.

The attorney / mediator does not represent either party but serves as a facilitator to the Divorce Mediation process.

Each party is encouraged to assert their own needs and to respect the needs of the other party.

Issues regarding division of marital property and spousal maintenance are resolved on the basis of the parties’ respective family circumstances and the laws of the State of Arizona.

During Mediation and where appropriate the parties will be encouraged to seek advice from outside professionals who can provide specialized information about the issues at hand. Parties are discouraged from seeking advice from friends and relatives.

The parties are encouraged to continue to share the responsibilities of the children in their post-divorce relationship.

Mediation of Post Decree Issues

There are at least 4 areas in an already existing order of divorce or legal separation that are well suited for post decree modification mediation or collaborative settlement. The current orders in each of these areas may be modified if the situation calls for it and the statutory conditions exist for modification.

  1. Child Support. By law, child support may be modified, post decree, if either the financial circumstances of a party have significantly changed since the original child support order, or if the initial residential arrangements have changed. If, for example, one of the parties has a reduced income or increased income, such a situation signals at least a discussion and quite likely revisiting the calculation on which the original child support was based. Also, if the expenses for the children have increased or decreased, this may also be grounds for revising the child support order. Finally, if the residential arrangements for the children have changed, for example, where a child has changed residences and is now living primarily with the other parent, this will require a modification in the child support.
  2. Spousal Maintenance. If the original spousal maintenance order was not stated to be “non-modifiable”, this support payment may be modified post decree. The basis for the modification is whether one or the other party has both continuing and substantially changed circumstances from the time of the order, and whether these changes would warrant a spousal maintenance modification. Be sure to note that such changed circumstances must be on-going, not simply a reduction in salary for a several months only, for example. Such changed the circumstances might be such that either party has a significantly reduced or increased income or either party has greatly increased (or reduced) expenses from the time of the original spousal maintenance order.
  3. Child Parenting Arrangements. The law also allows the original parenting arrangements to be modified when the family situation calls for it.  This can be one of the most difficult kinds of situations to assess, since it requires a consideration of whether the current living arrangements for the child are best or whether something else would be better. For example, as a young boy gets older, would it be best for him to be living primarily with his father rather than maintaining his current primary residence with his mother. There could be any one of a variety of possible living arrangements that might now be better suited for a child than was the original living arrangement.
  4. Property Settlement. In general property settlements are not modifiable; when they are done and ordered by the court, it is final. However, there may be situations where such finality has been left open in the property settlement or where each party will benefit by a modification of the original court-ordered settlement. In this event, also, the mediation of such modifications is a client friendly way to proceed.

Divorce Mediation’s Rational Approach to Spousal Maintenance

While some jurisdictions are moving toward a formulaic approach to the payment of spousal maintenance, leaving little room for a full review of the parties’ circumstances, many jurisdictions still provide only the most broad of guidelines for decisions around the amount of spousal maintenance paid.  For these latter jurisdictions, using a rational approach to ascertain the amount of spousal maintenance paid may be more time consuming and difficult, but it most often results in more equitable settlement that more closely reflects the parties’ actual circumstances.  The approach I like to take in my practice first looks at the facts on the ground in order to arrive at an agreed upon spousal maintenance payment.

It starts with a thorough analysis and review of the reasonable living expenses of each party. While this review opens the possibility of argument about this expense or that, parties are advised and cautioned in several ways. They are asked to review their historical spending from such sources as credit card statements, checks and receipts, so the expenses stated are accurate. And, they are cautioned that because their stated expenses are at a certain level of spending does not mean this level can be sustained in their new circumstances or the total income pool available is sufficient for such spending.   And, they are advised, if the spending level they wish to enjoy is important enough to them to maintain rather than decrease, then additional income sources (i.e. further employment) may be needed to meet their wishes.  The parties are advised that the expense budget is primarily a reality tool to ground them in their new two-household circumstances and the impact this may have on their lifestyle choices.

The tool that most cogently focuses them in their new reality is an expansive schedule of varying spousal maintenance payments and how each payment level affects each party. This schedule includes an after tax scenario for each party for each spousal maintenance payment level, for example, of $4000, $4500, or $5000 per month, whatever broad range of payments may be applicable to the parties’ income level – from the low to the high.  The schedule has lines at each payment level for each party’s:

1) Gross monthly income from all sources.

2) Monthly spousal maintenance payment.

3) Total monthly income, which includes the receipt of spousal maintenance for the payee and subtraction of the spousal maintenance payment for the payor.

4) Total monthly expenses.

5) Total taxes paid or deducted for each respective party.

6)  Discretionary (after tax) income remaining for payment of expenses.

7) Net income after payment of taxes and expenses.

This schedule provides an eye-opening, reality based view of each party’s income situation. Equitability is built into the schedule review, since it allows each party to see what both have left before and after their respective desired living expenses are paid. Vast differences in discretionary income are a compelling reason to narrow the gap, and living expenses that result in little or negative cash flow speak to a more realistic spending level.  As important, the facts speak for themselves in such a schedule and serve as a strong incentive for the parties to work together for an equitable solution to the amount of spousal maintenance paid.


Settlement Negotiations with Divorce Lawyers

As a long time divorce attorney, I have experienced a range of approaches to settlement negotiations, and the attitudes taken by my colleagues who also specialize in the field of divorce and family law. As I have moved from the traditional adversarial model of divorce settlement negotiations and used mediation and collaborative divorce settlements to resolve divorce cases, it has become clear how limited and myopic the view can be of the traditional adversary divorce attorney toward negotiating divorce settlements.

This is not to say taking such a view is anyone’s personal fault; rather, it is how most attorneys were taught and it is the message they continually receive in the adversary law practice culture.  In effect, and usually without exception, the view is this: I represent a client. This client has a point of view. It is my duty to take my client’s point of view. My point of view is right. The other party’s point of view is wrong. I cannot take into consideration the other party’s point of view. I may give lip service but will not actually listen to the other party. I will do whatever I can to win so my point of view prevails. Unfortunately, this way of proceeding, especially in an area of the law that involves families, can be of great cost to everyone; certainly to the clients and oftentimes to the attorneys as well.

Life is not a zero sum game. Do we ever actually find a situation where one party holds every virtue, where one party is always right, where one party knows best and where one party’s point of view must prevail on all issues lest the “good” be lost and the “bad” prevail? Yet, as close-minded as this point of view may be, at least to one degree or another it is the one underlying the negotiating approach of many traditional adversary divorce attorneys. And, although it is often covered over with a stance of seeming reasonableness, the message is clear: I will be reasonable as long as my point of view prevails.

When we look beyond the surface of life, it is not hard to see that what is there is anything but black or white, right or wrong, this or that. It is never one thing only. And, if we may use the word violence in its general sense, there is violence in taking one point of view to the exclusion of all others. The violence is that in taking such a view what is served is obliterating all other points of view. And with that obliteration can come the trampling on the sensibilities and feelings and values of those with whom we live and work and interact.

As every eyes wide open divorce attorney must see, this unfortunate dynamic has special importance in the field of family law, domestic relations practice and divorce settlements. The ones we may seek to “overcome” and over whom we wish to prevail are often the mothers, fathers, children and extended close ones who make up our families, even if those families are in the transition of divorce or separation. While it is at odds with the underlying ethic of the legal culture , the quite literal reality of our lives is that we are all in this together. Such reality calls on the divorce attorney to be informed by this ethic. The question each client might consider asking in entering a legal divorce process and the path leads to final settlement is  – “In the divorce process, do I want to be the one who serves to support healing the rifts that would break our newly transitioning family apart, and do I want a lawyer who will share this ethic?”

The Efficiency of the Collaborative Divorce Settlement Process

Integral to the Collaborative Divorce settlement process is efficiency in making the best use of personnel for specific tasks. This personnel includes not only the two attorneys but the financial professional, the divorce coach and the child specialist.

It might seem that use of this personal is overly costly and likely reserved for the wealthy. Upon further inspection, however, it is quite the opposite. In the traditional divorce, it is the attorney who performs, or tries to perform, the tasks that are undertaken by the specialists and professionals in the Collaborative process; and the attorney does so just for his or her own client. Thus, attorneys on opposite sides of the case are often performing duplicate tasks and then arguing about the results.

In addition, the performance of the various divorce related tasks by the attorney occurs at a higher hourly wage than the non-attorney collaborative professional. As important, the skill level is not as high. Attorneys are not financial professionals. They do not normally do taxes, nor do they appraise pension plans, or devise tax impact spousal maintenance schedules or easily undertake the calculation of separately owned interests in marital property. The financial professionals do all these tasks as a normal part of their professional practice.

Another example of the collaborative professionals undertaking divorce related tasks at a higher skill level and in a less costly way than attorneys can occur when the difficult symptoms of the emotional divorce (which often occur concurrent with the legal divorce) begin to interfere with the orderly process of negotiation and discussion of the legal issues. The attorney is not normally equipped to deal with the client’s emotional issues of confusion, denial, hurt, anger and grief. This lack of experience can prolong the traditional divorce process, create numerous obstacles and exacerbate the financial costs to the client.

However, when a divorce coach is employed in the Collaborative Divorce Process, he or she has the experience to tend to the emotional needs of each client. Often one coach is used for both clients, and the coach can help with such issues as communication deficiencies, normalizing the grief and loss process and calming the emotional turmoil experienced by many clients during a legal divorce. This work by the divorce coach can short circuit potential difficulties in the legal discussions and negotiations and help restore the process to the calm waters needed for rational decision-making. Thus, impasse can be avoided.

Finally, unlike the attorney, the child specialist employed in the collaborative process has the experience and skills needed to focus on the needs of children caught up in the divorce. The often unheard voices of children can be brought to the table and laid bare for the adults to consider. This will facilitate discussions around needed parental attention and thoughtful parent plans that can be made part of the final agreement.

The Subject Matter of Divorce Mediation

Every case is different than the next, having its’ own unique character and issues. And, while the differences in the modalities for reaching settlement are varied, and in some cases having a significantly different impact on the clients – such as Divorce Mediation contrasted with Divorce Litigation – the subject matter of all modalities is the same. This is a brief overview of the kinds of issues that need to be addressed in each case, if they are relevant to the particular situation. The list is not complete but it provides a good sense of what is to be addressed, and it falls under four general categories: Property and Debt Division; Parenting Arrangements for Minor Children; Child Support for Minor Children; and Spousal Maintenance (alimony). Thus, all final divorce settlement processes need to address these issues.

Property and Debt Division

-Real estate

-Ownership of business

-Household goods

-Stocks, bonds and other securities.

-checking and savings accounts


-Life insurance policies

-Income tax issues

-Attorney or Mediation fees

-Retirement type accounts

Parenting Arrangements for Minor Children

-Residential arrangements and time-sharing

-Pick-up and drop-off

-Decision-making for significant issues

-Child care arrangements

-Extra-curricular activities


Child Support for Minor Children

-Arizona Child Support Guidelines

-Wage assignment

-Medical insurance for minor children

-Periodic exchange of income information related to child support

-Post-secondary education tuition for children.

Spousal Maintenance

-Periodic payments or lump sum

-Cash settlement

-Tax deductible or not

-Duration of payments

-Modifiable or non-modifiable

Advising Clients About Settlement Process Options

People initiating a divorce or legal separation come to divorce attorneys with questions; paramount among these is “How do we get started.” This usually means something along the lines of how do we reach a final settlement or how do we go about the divorce process. The attorney can provide a valuable service by refraining from a launch into what the client “can get” or what the client should “go after.” Many attorneys are prone to take this kind of aggressive approach both at the expense of providing complete  information to the client and at the further expense of making the “opposing” spouse the adversary.  This is not only a disservice to all involved, it is also not even the first issue that needs to be addressed.

How people go through a Tucson divorce or legal separation can significantly impact their well being for some time to come even after the actual divorce is finished. Often the settlement process is at least as important as the final outcome. The identical outcome can leave either a lasting bad taste or provide a peaceful transition from the marriage. Whether it is one or the other often depends on the approach used in reaching the final outcome..

There are essentially three different settlement approaches to a legal divorce or legal separation. The first is the traditional adversary approach, wherein each party retains their own litigation attorneys and the customary approach of filing a plethora of discovery documents to obtain information from the other side ensues. The contest can escalate from there. This is not only a cumbersome approach it is time consuming and costly. Additionally, the attorneys often work at arm’s length from each other rather than cooperatively trying to reach resolution of their clients’ divorce related issues. And, the prospect of court litigation always looms. To be sure, there may be some cases and clients that warrant this approach, and for those clients it is valuable and worthwhile, however costly and difficult.

Most clients, however, would benefit from one of two more cooperative approaches to resolving legal divorce issues, especially when there is to be an on-going relationship because of mutual children or for other reasons. These two cooperative approaches are not often explained to clients by their attorneys, especially if the attorney’s law practice does not utilize them (who wants to give away business).

Mediation is the first cooperative approach. Here, the parties meet with a neutral mediator/attorney who represents neither party but whose allegiance is to a fair and balance settlement. Fair and balanced here is in the eyes of the parties and the mediator. This approach, which uses only one professional, is the most straightforward and least costly, since the parties are working directly with each other. Using the services of an experienced mediator can be ideal for many parties.

For clients who want to use a cooperative approach to settlement but are reluctant to engage in the settlement process without their own attorney, a Collaborative Law approach is best suited. In the Collaborative Law approach each party is represented by their own attorney, however, the parties and their attorneys commit in writing at the outset of the case to refrain from court intervention. “I’ll see you in court” is not a possibility in Collaborative Law because everyone has agreed there will be an out of court settlement.  Collaborative Law uses many mediation-like strategies for cooperative engagement, and discussions and decisions are made in meetings with the parties and their attorneys.

It behooves the client new to the legal divorce process to ask their attorney to explain all the approaches to resolving their divorce related issues so they might more intelligently know which is the right one for them.


Decision Making Around Divorce

In such significant, life altering areas as whether to end a marriage, or if a decision to end a marriage seems to have already been made, it is important to know whether the choice was made from a place of clarity or confusion. We need not focus on clarity here, since this state of mind points to a path where doubt is not operative and an open way forward is the predominant sense.

However, confusion around such decisions can be painful and anxiety producing and may result in a feeling of being struck and going nowhere. It can be very helpful to have a way to personally approach a significant decision like the decision to divorce, or even a decision around any aspect of the divorce process, such as whether to use a collaborative divorce process or mediation or litigation; or, how to treat an ex-spouse; or, what kind of attitude do you want in a Tucson divorce attorney; or, whether to proceed with a “take no prisoners” mentality or one that will support preserving an appropriate and cooperative relationship with an ex-spouse, especially if that person is the other parent to your children. These and many others are the kinds of decisions where guidance in the midst of confusion can be helpful.

One way to help become clear where confusion seems to reign, is to know what are our larger choices and how to apply them to the specific decision at hand. We can be helped here by recounting the Cherokee fable told by an elder to his grandson. The fable is about a battle that goes on inside people when making certain decisions, whether large or (seemingly) small. The elder says: “My grandson, the battle is between two wolves inside us all. One wolf is the animal of Suffering; it is anger, envy, jealousy, sorrow, regret greed, arrogance, self-pity, guilt, false pride, lies, superiority and all the negative aspects of ego.”

“The other wolf is the animal of Peace; it is love, serenity, humility, kindness, benevolence, empathy, generosity, truth, compassion and faith.”

The young boy thought about what his grandfather said and then asked, “Which wolf wins?” The old Cherokee replied: “The one you feed.”

For us, in our own decision making of all kinds and at all levels, what wolf do we feed when we choose this path or that one? When that answer is clear, the decision can make itself.

© Copyright - Peter D Axelrod