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Collaborative Divorce

Divorce Solutions Where A Spouse Suffers From Mental Illness

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Legal solutions exist for spouses who want a peaceful divorce, even where one of them suffers from serious emotional issues or mental illness.

In a collaborative divorce and in some mediated divorce cases, the divorcing couple selects not only attorneys for legal help, but also mental health professionals as divorce coaches. These coaches assist with effective communication between the divorcing couple. As experienced marriage and family therapists or psychologists, they provide education and support to clients and professional team members to facilitate the educated and peaceful resolution of issues. 

Where one of the spouses suffers from mental illness, this may involve more heightened involvement of the divorce coaches. In many cases, depending upon the depth of emotional issues and even where mental illness exists, the clients’ goals can still be amicably achieved.

Appointment of a Guardian Ad Litem in Collaborative Divorce or Mediation Cases:

Mental Health

In cases where a spouse’s mental illness limits his or her capacity to make decisions about divorcing, or about issues in the case, guardian ad litem can be appointed to stand in the shoes of that spouse in the divorce case. 

Guardians’ ad litem are sometimes appointed in litigated divorce cases as well. This can occur even where one or both spouses oppose such an appointment. 

In collaborative divorce cases, the clients can ask the court to appoint a specific individual, ideally an attorney trained and experienced in consensual dispute resolution, to act as guardian ad litem for the spouse in need of that extra layer of protection.

Most courts have a policy of encouraging parties to divorce to resolve their issues without the need for extensive court involvement. Some counties have a department or judicial officer dedicated to processing collaborative law divorce cases. Depending upon your local family court, the presiding judge or judicial officer assigned to handle collaborative cases may be willing to order the appointment of a guardian ad litem by agreement of the clients. In that case, no court hearing would be required. The collaborative attorneys would, of course, need to provide sufficient information about the situation to satisfy the court that appointment of a guardian ad litem is necessary as defined in the relevant statutes.  (In California, the relevant statutes are Code of Civil Procedure Sections 372-373. The statutes allow for the appointment where the court deems it expedient when a client “lacks the capacity to make decisions.”) Some courts may agree to keep the facts supporting the need for appointment in a confidential file, giving a layer privacy to the effected client. Best practice would be to have the guardian ad litem stipulate to be bound by the collaborative stipulation.

Even where a spouse may lack the capacity to make some decisions in the divorce case, they may still have ample capacity to agree to appointment of the guardian ad litem.

Value of the Collaborative Neutrals to the Effectiveness of the Guardian Ad Litem:

Once the guardian ad litem is appointed, he/she works with the subject spouse and the rest of the collaborative or mediation team. The goal is to ensure that ample information exists to support the couple’s intended agreements, with an eye toward protecting the spouse who may be disadvantaged by his/her illness. 

In most collaborative divorce cases, and in some mediation cases, the clients select a neutral financial specialist at the beginning of the case. The role of the financial specialist is to assist them in gathering and understanding all necessary and important financial information in the case. The idea is that the clients are not making long term financial decisions without the facts necessary for education decisions. This can be critical to the guardian ad litem, who must develop a full understanding of these facts and related decisions in the divorce case.

Where the clients have minor children, they generally select a neutral child specialist at the beginning of their case. That specialist interacts with the children without “involving” them in the divorce issues, provides education and feedback to the parents, and assists them in creating a parenting plan. Again, where guardian ad litem has been appointed, he/she has the benefit of receiving information through this team member. Notably, the neutral child specialist is the only collaborative team member who has direct interaction with every member of the clients’ family

Collaborative professionals and mediators can assist clients in successfully resolving their divorce issues without court intervention. The existence of serious emotional issues or mental illness does not have to preclude them from achieving their collaborative goals.  Appointment of a guardian ad litem may enable them to complete their divorce case in a way that they feel is best for their unique family. 

New Research Finds The Lack Of Parent-Adult-Child Connectedness Negatively Impacts The Well-Being Of Parents Of Gray Divorce & Can Deliver A Severe Blow To Their Recovery.

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Divorce Impacts Well Being

For the past three decades, the divorce rate for those 50 and older, known as “gray divorce,” has continued to climb in the U.S. and abroad. In 1990, 9% of persons getting divorced were aged 50 and older. By 2019, more than 36% of people getting divorced were at least age 50. Researchers predict that by 2030, the divorce rate for this population will grow by another third.

Divorce is the second most stressful life event, second only to the death of a loved one. Divorce can undermine individual well-being. Research also indicates that most people are distressed long before the divorce begins and remain so several years after divorce. Research about adult children of divorce found that some adult children avoid parental conflict by reducing contact with their parents.

Parent-Child Relationships and Parent Adjustment in Gray Divorce.

Carol writes:

Miriam, a 53-year-old successful businesswoman, shares her experience. “I can’t believe I’m in this situation! About two years ago, my husband and I began our divorce process. After my husband and I had been separated for about 18 months, I started dating someone, even though we hadn’t completed our divorce. The man I was dating volunteered in a non-profit food bank, where my husband and I volunteered. When my husband found out I was dating this man, he believed I wanted a divorce because I had been having an affair with him. It wasn’t true, but I couldn’t convince my husband. He was so upset that one day, he told our adult children that I wanted a divorce because I had been seeing the man during our marriage.

Jonathan, a 50-year-old teacher and father of two children, shares a similar story. “When I told our children I was filing for divorce, they seemed to take it well. My son understood how unhappy I had been in the marriage because he noticed how my wife frequently sarcastically put me down or was distant. My daughter and I have always had a close relationship. He has the same sarcastic humor as her mother, took her side in the divorce, and blamed me for breaking up the family. I’m still in shock and can’t believe it has been almost two years since she and I have had no interaction! She and her boyfriend spend time at her mom’s but not with me. Our son tells me he thinks I am depressed. I feel sad, maybe even depressed, most of the time. Even though I have a good relationship with my son, I feel such a heart-breaking loss about my daughter. Every day, I have trouble being optimistic about much, which isn’t like me. “

New Research about Parent-Adult Child Disconnectedness

Until recently, the parent-adult-child relationship’s role in parents’ adjustment to gray divorce was largely unknown. Newly published research explained what Miriam and Jonathan may be experiencing. Researchers Brown and Lin tracked depressive symptoms before, during, and after gray divorce. They found the lack of any contact with at least one adult child in the past twelve months significantly exacerbated the negative impact of gray divorce on parental well-being for both mothers and fathers.

Unexpected Shock and Grief

Although Jonathan and Miriam initiated their divorces and envisioned a happier life ahead, they were unprepared for the shock and grief that arose from their disconnection from an adult child. They were likely experiencing profound grief from losing their relationship with their estranged adult children.

Shock, sadness, and even depression is a part of the grieving process. Miram’s sleep disturbance, lack of appetite, and disinterest in doing well at work and fun activities could be symptoms of grief. Jonathan was aware of his sadness, and maybe even depression, and inability to be positive, which could also be symptoms of grief.

If you are considering filing for divorce and having difficulty coping with disconnectedness from one of your adult children, consider the family-focused collaborative divorce process, where one of the professional members is an adult child specialist who can educate you and your adult children about how divorce can create a complex emotional landscape and relationship estrangement, and how you can heal and create re-connection.

This article is adapted from an article originally published on PsychologyToday.com

References

Brown, S. L., & Lin, I.-F. (2022). The graying of divorce: A half century of change. The Journals of Gerontology, Series B: Psychological Sciences and Social Sciences,  77(9),  1710–1720. https://doi.org/10.1093/geronb/gbac057

Brown, S. L., & Lin, I.-F. (2012). The gray divorce revolution: Rising divorce among middle-aged and older adults, 1990–2010. The Journals of Gerontology, Series B: Psychological Sciences and Social Sciences, 67(6),  731–741. https://doi.org/10.1093/geronb/gbs089

Brown, S. L., Lin, I.-F., Hammersmith, A., & Wright, M. R. (2019). Re-partnering following gray divorce: The roles of resources and constraints for women and men. Demography,  56(2),  503–523. https://doi.org/10.1007/s13524-018-0752-x

Buber, I., & Engelhardt, H. (2008). Children’s impact on the mental health of their older mothers and fathers: Findings from the survey of health, ageing, and retirement in Europe. European Journal of Ageing,  5(1),  31–45. https://doi.org/10.1007/s10433-008-0074-8

Campbell, M. (1995). Divorce at mid-life: Inter-generational issues. Journal of Divorce & Remarriage,  23(1/2),  185–202. https://doi.org/10.1300/J087v23n01_12

What is a Divorce Coach and Why Do I Need One?

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The Divorce Coach: A Vital Member of the Professional Collaborative Team

As has been proven, the collaborative model works so well because all of the members of the collaborative team play an equally-critical role in the success of the collaborative process. We know that emotions can run high during a divorce. We also know that emotions can get in the way of rational thinking, and the ability to access the cognitive areas of our brain, which is critical for effective problem-solving. Divorce Coaches are best-suited to help clients move past the emotion of a given impasse, and past the high emotions of the divorce itself, and to help clients focus on realistic options to obtain a more favorable outcome for their families.

What is the Role of a Divorce Coach?

A Divorce Coach is a licensed, mental health professional who has specialized training in Collaborative Divorce and Mediation. The Divorce Coach is a co-equal member of the clients’ Collaborative Divorce Team. In a full Collaborative Team, each spouse has a Divorce Coach. In some cases, clients choose to share one Divorce Coach to assist each of them through the collaborative divorce process or mediation.

The Divorce Coach helps clients translate goals into action. Of particular importance, they also assist in helping a client to understand his or her spouse’s views, and the impact of their own behavior on their spouse. This is critical in resolving impasses that often arise in the divorce process. The Divorce Coach helps the clients with their communication skills, and educates the clients about the impact of divorce on children. Additionally, the Divorce Coach assists clients in developing their mutual goals which serves to enhance their co-parenting relationship, both during and after divorce.

Divorce Coaches can be extremely helpful when there are emotionally-charged issues presented such as infidelity, emotional abuse, estrangement, alternative lifestyles, and substance abuse.

In addition, the Divorce Coaches assist clients in developing insight into their own emotions, actions and goals which helps clients not only during the divorce process, but well after the divorce has been concluded.

A Divorce Coach Is Not a Therapist

It is important to note that while a mental health professional who performs in the role of Divorce Coach may also have an active clinical therapy or counseling practice, that is NOT the role that he or she plays in a collaborative or mediated divorce. However, the expert training and breadth of experience that the Divorce Coach brings to the Collaborative Team redounds to the benefit of both the clients and the team in assisting with effective communication, development of ideas and creative approaches to problem-solving.

Why Do I Need a Divorce Coach?

Divorce Coaches perform a vital role when it comes to managing and overcoming the emotional obstacles presented in a divorce. They are particularly helpful in providing an environment for effective option-creation and problem-solving, especially at times when clients are bogged down by a challenging impasse. It is beyond valuable for clients to get a fresh perspective from the Divorce Coach, which then enables them to move on to more future-focused thinking, and ultimately on to resolution.

Not unexpectedly, the emotional aspects of a divorce often threaten to derail the peaceful resolution of a divorce. It is the Divorce Coach who is key in effectively assisting the clients with the deeply-held emotions that arise as a result of the end of a marriage, including all of the uncertainty and fear that accompany such momentous changes in a person’s life circumstances.

Thinking about Divorce? This Is What You Need to Know

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Perhaps you have already tried counseling. Sadly nothing has worked. One or both of you have decided on divorce.

If you decide to divorce the most important next decision you will make for your family is what process to choose.

Divorce has two tracks and they operate simultaneously. There is the Business Track and the Emotional Track. If the Emotional Track is not handled well it can easily knock the Business Track off course, create enormous damage to your family, including your children, as well as cost you more money and time.

The Business Track generally involves attorneys and financial specialists. The Emotional Track benefits from the expertise of a well trained and experienced Divorce Coach.

In most places, there are four ways to get divorced. Unfortunately, many people only know about two options.

  • Get an aggressive attorney and fight it out
  • Try to do it yourself.

These two choices above carry significant risks.

  • Trying to maneuver your way through a complex legal system without professional guidance can be costly.
  • Family Law can be confusing and it is easy to make mistakes.
  • Hiring lawyers to fight it out can become a war. There will be winners and losers in your family.
  • Fighting is expensive. When war starts it can expand beyond your expectations and control.
  • Losing can mean negative consequences for you and your children.
  • Even if you “win” the fight, research indicates that legal battles can create physical as well as emotional damage for every member of your family.

How You Can Have a Divorce without Wrecking Your Family and Your Finances

There are other ways to divorce that are focused on helping your family avoid the worst aspects of divorce. In family focused options it does not have to be a battle. If you have children, whether they are minors or adults, their interests and your ongoing relationships with them after the divorce are taken into consideration. Every member of your family benefits when your children are at the center of not in the middle of divorce.

There Are Four Ways to Get Divorced in California

1. Do-it-yourself – described above 

2. The adversarial approach. I call this “Combat Divorce.” Each person hires an attorney who represents him/her as if in a war. The emphasis is on winning which is defined as getting the most you can for yourself, no matter how much damage is done to either spouse or the children. As everyone knows, wars are always expensive and there are always innocent casualties. Another big surprise for people who pursue this approach is that instead of you deciding what happens to your children and whatever is left of your assets, the decisions are made by a Judge, who may never get to know either of you. Many people find this thought disturbing, especially when it comes to your children.

More Peaceful and Respectful Ways to Divorce

3. Mediation. For people who are seeking a more Peaceful Divorce, this is a useful approach. It can work well if you are both getting along well and both are equally comfortable with the decision to divorce. This approach gives you more control over the decisions that affect your family’s lives. There are different ways to do this. One way is a team approach where an attorney who is also a trained mediator represents both people. Sometimes each person will also select their own consulting attorney to review the process. An especially helpful way to use a team mediation process is to include a Divorce Coach/Family Specialist, who as a family Communication Specialist, keeps the inevitable emotional issues from blowing the process apart. A variation of this is that some couples prefer for each spouse/partner to have her/his own Divorce Coach instead of a Family Coach. By staying with the more peaceful approaches, you keep control.

4. Collaborative Divorce. As in mediation this approach gives you more control over the decisions that affect your family’s lives. Attorneys, Mental Health Professionals and Financial Specialists who all are trained in Collaborative Divorce and in Mediation compose the Professional Team. Each person has his/her own Collaborative Attorney. Each has their own Divorce Coach to help dampen down the fight and keep the inevitable emotional issues from blowing the process apart.. There is one Neutral Financial Specialist who makes sure that both people have adequate knowledge of the family’s finances. Both can then make informed consensual decisions. When there are children, the divorcing couple also chooses a Neutral Child Specialist This gives the clearest voice to your children’s needs and concerns. Parents keep the children in focus when making hard decisions during your divorce process. In these more peaceful approaches, you keep control. As with mediation, Collaborative Divorce keeps you and your family out of court and all of your private business stays private. 

How to Choose a Divorce Coach

It is important to consider their qualifications. The International Academy of Collaborative Professionals provides you with specially trained Collaborative lawyers, mental health and financial professionals to educate, support and guide you in reaching balanced, respectful and lasting agreements.

The International Academy of Collaborative Professionals requires that a Divorce Coach be a licensed mental health professional who also has specialized training and is experienced in working with families going though divorce.

Without those professional standards, there are no there is way to determine whether a person offering services is qualified because there are no official licensing or other official qualifications to qualify as a Certified Coach,

In California our State Affiliate to find a qualified Divorce Professional is https://collaborativedivorcecalifornia.com/.

The Role of Minor’s Counsel in Litigation and in Collaborative Divorce

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In high conflict litigated cases, a Judge will often appoint Minor’s Counsel in order to assist them in determining orders that are in the best interests of the child or children of the marriage. Minor’s Counsel is an attorney who represents the children. They are not a therapist or a custody evaluator, however they will gather evidence to present arguments to the Court as to what orders are best for their client or clients [the children]. Minor’s counsel is able to access the confidential records for the child such as medical records, educational records or any records from therapists that have been treating the child.

When I have been in the role of Minor’s Counsel, I try to meet with the child in a neutral setting such as a park or a setting that will be comfortable for them. If I know that they like animals, I may bring one of my dogs with me to the first meeting. My goal in the first meeting is to provide the child with a safe space so that they can talk to me. In most litigated cases, the child has been exposed to the conflict of the parents for a long time. They may be coached by one or both parents or fearful that what they say to me will be shared with the parents. I also schedule meetings with each of the parents individually and each of the parents with the child.

Often the parents are so engaged in their negative feelings towards the other parent that they lack insight as to the damage that the conflict is causing to their children. While I am meeting with the family, I am also gathering evidence from outside sources which can help me understand what is in the best interests of that child. If the child has a therapist, then I will speak with them. If one of the parents has been taking the child to therapy without the involvement of the other parent, the evidence obtained may be weighted less. If the parents do not have the child in therapy, I will often recommend that a therapist be put into place for the child so that they have ongoing care and a safe space that they can speak about the children.

Prior to a return hearing with the Court, I will discuss my recommendations with both parents together and the attorneys if they are represented. Generally, parties that are in litigation are so entrenched in their own positions and what they want or what they think is right that they are unable to see the impact that their hostility has on the children. While I do not share all that my client has told me, I will ask permission to share certain statements. It often surprises the parents to learn that their child loves both parents and wants to have time with both of them. If there are issues of addiction or abuse, then we are able to discuss how to maintain that relationship in a manner that is safe for the child. My goal in sharing my position with the parents prior to the hearing is to see if there is a way that we can come up with options and work out a parenting plan together that will be in the best interests of the children. Unfortunately, if we are not able to do this then I will present my case to the Court and the Judge will make orders based on evidence that is presented by each of the parents as well as my evidence that is presented. In litigated cases, my role may continue for several years as most parents are not happy with orders that are made by a Court.

In a Collaborative Case, the parties who choose to participate in this process are able to use minor’s counsel before significant damage has been done to the children. Minor’s counsel may be used in a collaborative case where the parents need additional assistance in communicating with each other or where there has been a history of domestic violence or substance abuse or where there are older children in their teenage years who want to have a voice in what their life will look like after the Divorce. In Collaborative cases, there is often a parent child specialist involved as well. My role in a Collaborative case is to be part of the entire team and to represent the interests of the children while continuing to work with the entire team to guide the family through the process without causing damage to the children. In a collaborative case, my role is to gather information to be shared with the team as opposed to a litigated case where I would be gathering evidence to be presented to the Court.

I conduct the children’s meetings in the same manner as I would in a litigated case, meeting on neutral ground and establishing rapport, I will also meet with the children and each of the parents alone. However, as we are in a collaborative process, I will meet with the parents and children together and just the parents together. I coordinate with the parent child specialist as they are going to be working with the parents on communication and assisting them in getting through the Divorce without damage to the children.

In team meetings, I am able to present options to be considered by the team as a whole and those options can be discussed with the parents, the coaches, attorneys and parent child specialist. The parent child specialist is also able to weigh in. In collaborative cases we are able to structure a parenting plan that works for the children and for the family and will enable them to avoid litigating issues in the future. My role as minor’s counsel ends at the time that the Collaborative case is concluded as parents who work together on a parenting plan are generally happy with that parenting plan and do not continue to litigate the issues.

Minor’s counsel can be a vital role in both litigated cases or collaborative cases where the children need to have a voice. Although the process varies, the role of Minor’s Counsel remains the same, to provide information about what is in the best interests of the children and to assist the children in having a voice in their parents Divorce.

Our Collaborative Process… A More Peaceful Way to Divorce

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The Collaborative Divorce Process is a respectful, peaceful and dignified process that is designed to ensure that the participants and their children successfully transition to the next chapter of their lives.  In the Collaborative Process, the clients retain maximum control over the outcome of their case, as opposed to turning over the decision-making to a judge who does not have intimate knowledge of their particular family.

All of our members are committed to the Collaborative Process, a non-adversarial approach designed to resolve family law conflicts in a mutually-beneficial manner.  Collaborative attorneys are specialists in settling disputes.  Clients and professionals work together respectfully, and in good faith, to gather the information needed to reach an agreement.  The goal is to achieve a “win/win” outcome for all participants.

Typically, clients and professionals meet together to discuss all issues, plan for information gathering and make interim arrangements, as necessary.  A team will be assembled based on the individual participants’ needs.  The team may consist of two collaborative attorneys and the clients, or can include attorneys, communication coaches, child specialists (both roles are filled by mental health professionals), and a neutral financial specialist.  Information gathered will be shared with the other clients and team members in order to clarify each participant’s interests, and to stimulate ideas for possible solutions.  All communications made during the Collaborative Process remain confidential, and will not be used as evidence if the case later goes to court.

The clients, through their collaborative attorneys agree to voluntarily provide necessary documents and information early in the process which serves to drastically reduce the cost of the formal discovery that is often a hallmark of litigated divorces.  Full disclosure and open communication at every stage of the Collaborative Process facilitates a faster and more satisfying resolution than if the matter had been litigated in court.

A settlement that meets the approval of both clients can then be fashioned and memorialized in a written agreement that is filed with the court.  This method of collaboratively handling conflict is designed to minimize hostility, and to foster a more cordial relationship in the future.

The guiding principles of the Collaborative Process are particularly well-suited to issues of family law and divorce.  All clients and Collaborative Professionals agree at the outset that the case will not be litigated, If the case cannot be settled, the attorneys and other professionals must withdraw, and the attorneys will assist the participants in finding new attorneys to help them resolve the case through the traditional court system.  Even in these cases, useful groundwork will have been laid for a more effective way for clients to work cooperatively, and to resolve their differences in the future.

Arbitration and Mediation in California: What’s The Difference in These Forms of Dispute Resolution?

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by Diana L. Martinez Collaborative Lawyer and Mediator, Law and Mediation Office of Diana L. Martinez

As a family law lawyer, I really look forward to my time on duty to volunteer at Riverside County Superior Court for VSC (Voluntary Settlement Conference) day. It is offered two Fridays per month and is THE most successful mediation program in the nation with an over 90 percent success rate!

Why? Because, in order to be a mediator on this panel, you must have the highest training and qualifications as both a family law lawyer and as a mediator. Not only do we donate our time, we must be in practice at least 10 years and have hundreds of hours of mediation training and practice under our belts. Other family law mediation programs that either do not have a structured program with high mediator qualifications, or that pay retired judges to do this work, enjoy a success rate below 60 percent.

Judges have an incredibly difficult job. It takes very specific skill sets to be a good judge. But being a talented judge does not, in and of itself, make you a good mediator.

I also volunteer as a fee arbitrator in attorney-client fee disputes for the California State Bar and for the San Bernardino County Bar Association. My role as an arbitrator is that of a judge: to listen to testimony, review the evidence, and make a ruling based on the law. There is no facilitation or brainstorming to help the parties create agreements together. As a result, the parties tend to stay polarized, hoping I will rule in their favor.

In contrast, a mediator works to find common ground, and assists the parties in bridging gaps, focusing on their goals and the reality of the benefits and risks of resolving versus litigation.

During a recent mediation in Riverside*, I had to use my skills as an arbitrator to attempt to resolve a divorce dispute in mediation. In this particular case, the husband was represented by counsel. The wife was not. The couple was married in the Netherlands and moved to California two years prior to the divorce. They had been married for 15 years. They had already agreed to the division of their assets and debts. The final item preventing them from resolving their divorce for nearly two years (yes, they had been divorcing for two years) was spousal support. The wife was not a legal U.S. resident and had struggled finding employment. During the marriage, she worked as a babysitter. The husband ran his own consulting business and was always the higher income earner.

As an arbitrator, looking at the evidence presented, the ruling is quite simple. Based on California law, Husband would be required to pay spousal support until one of the normal, terminating factors in a long term (over 10 years) marriage: 1) death of either party; 2) remarriage of wife; or 3) further order of the court. Wife, however, would have to make reasonable, good faith efforts to become self-supporting, in order to continue to receive support.

As a mediator, it is important to help both husband and wife craft an agreement that factors in wife’s financial needs and goals, as well as husband’s sense of unfairness of having to pay for so long a time. In this case, wife appreciated this and proposed that husband pay her only what she was short in rent each month ($200) for five years. This would give her time allowing her to get her legal resident papers in order and find a stable job, as she explained it, after which she would agree to “terminate” support.

Relying on a judge for a “fair” decision on your financial settlement during divorce is an expensive roll of the dice.

In a long-term marriage, courts do not, generally, terminate support; they may reduce it to zero dollars, but they will leave open the ability to request it in the future. This proposal, legally, put a lot of value on the table for the husband.   As a neutral, and especially given that wife was unrepresented, I did have to educate both parties about that legal value and the implications of a spousal support termination. To all knowledgeable in family law, this proposal was golden.

Husband’s attorney instructed him to reject the offer as completely unreasonable. His argument? In the Netherlands, his wife would not have received spousal support at all. Since the parties lived there for most of their marriage, wife should not be allowed to benefit from California spousal support laws. They argued the wife should agree to no more than six months of spousal support, which would then end. This sounded logical to husband.

Sadly, the husband’s “logic” is not the basis upon which family law judges issue orders. My inner arbitrator asked husband’s lawyer to explain the legal basis for this argument. It was a novel argument to me, and I’ve been in practice for nearly 20 years. His response: “Yes, it is a case of first impression, so I have to research this more.”

Excuse me? You have no legal basis for this argument, which means your client will be paying you for research that will very likely not result in the expected outcome. In addition to this expense, Husband’s lawyer planned on having a vocational evaluation done on wife to determine how much she could reasonably be earning. Really? She’s undocumented, and lawyer wants to do a vocational evaluation. Husband, as the sole income earning, would have to front this cost.

The court had already told the litigants prior to sending them off with their mediators that, if they do not resolve their matters, the next available court date would not be for another six months. This meant that husband will continue to pay his lawyer during that time, for research on an issue that has no support in law. If we calculate the legal fees at $1,750/month (lawyer rate of $350/hour, at five hours of legal work per month, including research on the foreign marriage issue, gathering information on wife’s earning ability, history of income during the marriage, and so forth), for six months, it will cost the husband $10,500 prior to his trial readiness conference. This is not the trial itself. It is a court hearing to confirm you are ready for trial.

The trial would likely be set within the following one or two months after that hearing, and trial preparation by his attorney would be far greater than five hours. But let’s keep it conservative for this discussion and add only another $1,750 to finish this case through trial. Now we have $11,750 in legal fees for the husband, in the hopes the judge will side with him and terminate spousal support, despite the law.

Let’s compare this with the wife’s proposal to resolve their case through mediation, six months before trial readiness. She proposed $200/month for five years = $12,000, and a signed, binding, agreement to terminate spousal support. That’s a guarantee, folks. Remember, by terminating, no court, in any state, would have the legal ability to order more support, ever!

Sadly, husband trusted his lawyer in the above mediation. The parties will end up going to trial, based on his lawyer adding to husband’s sense of unfairness, rather than educating his client as to the reality of the law. Logic would dictate that it would be better to take a sure bet for $250 more, than pay almost the same amount and risk the judge applying the law, as they are required to do.

In mediation, husband had the ability to cut his losses and be done. As a judge, there is no such flexibility. The judge or arbitrator (same function) is required to apply the law. But when emotion (that sense of unfairness) takes over, and a lawyer creates a false hope by feeding into that emotion, the only “winners” are the lawyers. There is no benefit to either spouse. There is no benefit to their families. The court battle continues.

If you expect a judge or arbitrator to “do the right thing” because he or she will see and understand the unfairness of it all, you will be disappointed. A judge does not have that kind of flexibility. They may find one argument more persuasive than another, but that means it follows the law more closely than the other. It does not factor in emotion or “fairness.”

In the above example, the law does not look at where you were married and apply the rules of a foreign country. If you lived in California six months prior to filing your petition for divorce, you fall under the laws of California – no exceptions based on “it’s not fair.” A judge must render decisions based on the law and the evidence properly presented. Don’t forget to factor in the financial and family relationship costs of the continued battle.

*I’ve changed certain facts of the case to protect confidential information, but have kept the substance the same.

Diana L. Martinez and Tracy McKenney Receive Eureka Award

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Statewide award honors Collaborative Practice professionals

Media Contact: Gayle Lynn Falkenthal, APR 619-997-2495 or gayle@falconvalleygroup.com

(Irvine, California) – Family law attorney Diana L. Martinez and financial professional Tracy McKenney were honored as recipients of the 2017 Eureka Award, bestowed annually by Collaborative Practice California. Martinez and McKenney received their awards at Conference XII held in Redondo Beach, California. McKenney’s award was bestowed posthumously; she served as CDSOC president before her death due to cancer in September 2016.

Eureka Award winners for 2017 Diana L. Martinez (left) and Scott McKenney for his late wife and former CDSOC board president Tracy McKenney at the 2017 Collaborative Practice California conference.
Eureka Award winners for 2017 Diana L. Martinez (left) and Scott McKenney for his late wife and former CDSOC board president Tracy McKenney at the 2017 Collaborative Practice California conference.

The Eureka Award recognizes and honors those who “have made significant contributions and demonstrated an abiding dedication to establishing and sustaining Collaborative Practice in California.”

Diana L. Martinez is a committed Collaborative professional who has tirelessly served the California Collaborative community for many years. Ms. Martinez has devoted 100 percent of her family law practice to out-of-court dispute resolution including Collaborative Practice since 2007. She is passionate about educating others about the benefits of Collaborative Practice through personal contact. Ms. Martinez is a noted trainer and educator for legal, financial, and mental health professionals locally and nationwide on family law topics including Collaborative Practice, confidentiality, cultural competency, and ethics and best practices. She has presented to state and local bar associations and legal organizations, law schools and practice groups.

Ms. Martinez is a frequent guest lecturer for community Divorce Options and Divorce Recovery programs and a volunteer mediator for multiple county superior courts. Ms. Martinez has served on governing boards of Collaborative Practice regional groups in three counties, multiple statewide Collaborative Practice committees, and is a past president and current board member of CDSOC. Her dedication has resulted in “Super Lawyers” recognition and a perfect 10/10 rating in peer and client online reviews.

Eureka Award winner Diana L. Martinez at the 2017 Collaborative Practice California Conference with keynote speaker Brian Miller. Martinez also served as Conference Chairperson.

Upon receiving her honor, Martinez said, “it was an incredible surprise, and humbling honor, to receive the award this year; especially to receive it at the same time as my friend and colleague, Tracy McKenney. I’m so fortunate to have connected with those whom I consider as leaders in Collaborative Practice, education, and awareness, including previous Eureka Award winner Carol Hughes, who presented me with my award. I have so much support from the Orange County practice group, and am surrounded by so many dedicated professionals, that it makes it easy to be passionate about this work.”

Tracy McKenney was a Certified Divorce Financial Analyst and Certified Financial Planner with a passion for training and education in Collaborative Practice. Ms. McKenney devoted her professional efforts to helping families during the divorce process make informed decisions. Ms. McKenney helped couples determine how their decisions would affect their family’s future including sending children to college, property ownership, and retirement.

McKenney supported Collaborative Practice as treasurer and later as President of CDSOC. She was instrumental in bringing the “Divorce Options” workshop program into Orange County colleges and guiding CDSOC toward improved training and higher standards of practice. McKenney was a member of the International Academy of Collaborative Professionals, Association of Divorce Financial Planners and the Financial Planning Association of Orange County.

Tracy McKenney at a CDSOC planning meeting in 2016 prior to her illness. Photo: Leslee Newman

McKenney lost her battle with cancer in September 2016 while serving as CDSOC President. Her husband, Scott McKenney, accepted the Eureka Award on her behalf from her colleague and fellow recipient Diana L. Martinez.

“My children and I want to thank CP Cal and Collaborative Divorce Solutions of Orange County for posthumously awarding my wife, Tracy McKenney, with the Eureka Award for her efforts in Collaborative education. I was honored to accept the award on her behalf,” said Scott McKinney.

“At her core, Tracy loved helping people.  It’s what she was all about, it was her calling. Tracy was deeply passionate about the Collaborative Divorce process as a way of getting through one of life’s most difficult challenges in any couple’s life with the least amount of stress and breakage: both family and financially.

“Tracy believed so much in the power of the Collaborative Process, and that it was her mission to spread the word throughout Southern California.  She developed educational classes and led them with her professional teammates at local community colleges throughout Orange County.  Her desire was to educate and raise awareness that there are alternatives to litigation for divorce that reduces pain and suffering for all involved.

“Tracy would be deeply honored and humbled with this award, and I know she is smiling with thanks to be recognized in the field she felt so strongly about and worked so hard to nurture. On behalf of the McKenney family, thank you very much from the bottom of our hearts,” said McKenney.

In her own words, McKenney described why it was important for her to be involved in CDSOC. She said, “Collaborative Divorce represents a significant advancement in resolving divorce respectfully. Going through a divorce is in some ways harder than dealing with the death of a loved one. It worsens when the process is dragged out through contentious, time-consuming and costly litigation in court. In so many cases, couples can avoid the damage of a court battle, even when they aren’t sure they can cooperate. Our approach makes it possible.

“Collaborative Divorce keeps decision-making in the hands of the couple. It spares them and especially their children the duress from an acrimonious divorce, preventing lasting harm, and preserving the family relationships for a healthier future,” said McKenney.

The Eureka Award is not limited to those in any particular practice or career. Previous honorees include members of the core disciplines – mental health, financial, and legal – as well as those who are not licensed in these professions.

Martinez and McKenney join a distinguished list of previous recipients from Collaborative Divorce Solutions of Orange County, including Leslee Newman (2009), Carol Hughes (2011), Bart Carey (2012), Brian Don Levy (2013), and Cathleen Collinsworth (2015), making Collaborative Divorce Solutions of Orange County among the three most honored regional practice groups in California.

The Eureka Award was established in 2006 as part of the very first Celebration of Collaborative Practice in Sonoma, California and actually pre-dates the founding of CP Cal. In its first two years, the Eureka Award Committee chose to play “catch up” and honored several recipients each year. In 2008, the CP Cal Board chose to limit the Eureka Award to three to five Honorees.

About Collaborative Divorce Solutions of Orange County

Collaborative Divorce Solutions of Orange County (CDSOC) was founded in 2003 to advise couples in Orange County about out of court options to traditional divorce litigation. Our group consists of experienced family law attorneys, licensed mental health professionals, and credentialed financial professionals, all of whom are specially trained in Collaborative Practice, mediation, and conflict resolution. Working under the Collaborative Practice model, the result is a divorce guided with respect and compassion in a non-adversarial way so families can make the best possible decisions about their future.