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How to Have a Peaceful and Successful Divorce

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How do you avoid the trauma of divorce – the battle, the fighting which can endure for many months or years, and the constant argument and opposition to a partner whom you once loved or even still care about?

What does it mean to have a peaceful and successful divorce? How do you discuss and create solutions to divide your assets and debts; share the parenting of your children who are not yet adults or still in school; and calculate a fair distribution of earnings to support two households?

Mental health professionals tell us that when we are angry, in trauma, and emotional, that we are not thinking with the best, problem-solving parts of our brains. How are we able to master our emotions to think rationally and to creatively develop solutions and a new sense of purpose? How can we recreate some of the empathy that we formerly had for our spouse to create a base for teamwork, connection, and solution?

Through an out-of-court process of collaborative divorce, working with a collaborative team of professionals, it is possible to transition from battle to cooperative settlement. It is also possible to save months of court litigation by selecting a collaborative divorce alternative.

At this difficult time when court proceedings have been put on hold, and are unpredictable, resolving a divorce case out of court is generally faster because Husband and Wife control the speed of the process and are not subject to the court’s closure(s), reduced staff, and unpredictable scheduling.

Find out how you and your spouse can have a peaceful and successful divorce by contacting a Collaborative Divorce Solutions divorce professional.

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.

Your Brain on Divorce: How to Take Charge

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by Jann Glasser, Marriage and Family Therapist (MFT), Licensed Clinical Social Worker (LCSW), Coach/Psychotherapist, and Collaborative Coach

During your divorce, you may find your heart pounding and your thoughts racing as if you were driving in the Indy 500. An email, text or voicemail from your attorney, accountant or spouse in your inbox may result in fear and dread as immediate reactions. This is one example of the brain on divorce; easily triggered, distraught and overwhelmed. You are trying to function while stressed, sad, and sleep deprived, reacting as if under attack.

Divorce is one of the most significant losses and stressful life events people experience. Unlike other losses, there is no bereavement leave from work, no sympathy cards, and no rituals that bring your friends and family around you to acknowledge the loss. Life goes on without skipping a beat. You are expected to go on.

Not only are you expected to go on, but you are also expected to gather all financial paperwork, other information, make time in your schedule for additional meetings, phone calls, emails, help your kids cope, and be prepared to make major parenting and financial decisions that have long term consequences. No wonder you’re exhausted and overwhelmed!

Being such a stressful process, divorce can bring someone to their knees even if they generally cope well at other times, turning a well-adjusted, reasonable person into a raving maniac. When you understand what’s going on in your body and mind under stress, it can help you have compassion for yourself and also choose effective coping strategies.

Your brain is responding to the divorce as a threat. The part of your brain that manages emotion and the fight-flight-freeze response (the limbic system or mid-brain) kicks into high gear. We commonly refer to it as “the right brain.” This part of your brain is essential to keeping you alive. It looks out for threats and is quick to react.

However, it is not helpful for planning, making decisions, and considering consequences of your actions. The part of the brain that takes control when you are upset, angry, or scared (during much of your divorce!) is responsible for your racing heart, tight chest, and flushed face. It contributes to your confusion and indecision. When your brain is preparing for a fight or to run for your life, it has shut down access to the “thinking, reasoning” part of your brain (left brain). Unfortunately, it is this part of your brain that needs to be in charge when negotiating your divorce settlement, making financial decisions, working with your co-parent, parenting, and planning for your “new normal” and future. Suzanne Segerstrom, Ph.D. of the University of Kentucky, aptly describes this part of the brain as controlling the “Pause and Plan” response.

Coping effectively during your divorce involves shifting from the “Fight or Flight” emotional “right brain” responding to threat and putting the “Pause and Plan” within in your “left brain” in charge. This part of your brain executes a plan after evaluating information and considering consequences. When you are able to do this, you increase self-control as well as your ability to manage emotions, evaluate information, make decisions, and make plans.

How can you access “Pause and Plan” when your brain is locked down in threat mode? The following options help strengthen your “big brain” and promote resilience:

  • Make sure you have the energy needed for your brain to optimally function. A healthy diet, regular exercise, and adequate sleep are essential to your body having the energy it needs.
  • Excess sugar and alcohol are not your friends now. Drowning your woes in a gallon of ice cream or a bottle of booze won’t help you cope for long..
  • Pause. Your emotional “right brain” is lightning fast. Your body and mind need time to slow down the reaction and realize your current situation, while stressful, is not life or death. Breathing slowly is a great way to use your body to send signals to your brain that you are not in mortal danger. Meditation, or daily mindfulness exercises can be a huge help here. It also gives you time to begin to think, engaging your “left brain”
  • Heighten your awareness. Observing yourself and your situation is a function of the left brain. When you pause to observe what’s going on, you activate that part of your brain. This opens up options for you to consider and the opportunity to be less reactive.
  • Seek support from others. Believe it or not, there is “good news” in how our body responds to stress. Not only does our body release adrenaline to help us jump into fight-flight action, but it also releases oxytocin (sometimes called the bonding, love, or cuddle hormone). This hormone encourages us to seek out support and physical contact from others. It also seems to help heal and regenerate heart cells! Our body and mind, in its’ infinite wisdom and complexity, is actually built to help us manage stress and heal a “broken heart.” Seeking out supportive relationships as well as receiving and giving hugs can help you calm down, pause, feel protected from attack, and as a result, be able to access your thinking brain.
  • Change your mindset. Stress itself is not the main problem that creates the negative impact on our health and well-being, but it’s how we perceive the stress that is the problem. Instead of interpreting the stress in your life, the divorce, and your reactions to it as harmful to you, you have another option. If you interpret this hard time in your life as a difficult challenge; one that you have the courage and strength to rise above, you can emerge stronger and better. You will also be less negatively impacted by the stress!
  • Practice self-compassion. Exercising this part of your brain not only can help you feel better about yourself, it can also contribute to self-control and motivation towards long-term goals. Next time you feel like getting down on yourself, try a little tenderness instead.
  • Beef up the parts of the brain you want working for you during this difficult time; don’t keep them in hibernation or overcome by volatile emotions. Emotions are faulty navigational tools when used as the primary source of decision-making.
  • Be open to new information and experiences. By definition, many aspects of your life change in response to divorce. You probably will have to take on some new roles, behaviors, and skills. You may even want to try something new.

New experiences, even those we don’t want, create opportunities for growth. Considering new perspectives, trying new things and being open to new information literally helps your brain grow. This can contribute to making better decisions, being more motivated, exerting more self control and being more compassionate. These not only are keys to well-being and resilience, but a new, improved you and a life well lived.

If you are struggling with the stress of divorce, consider this knowledge about the brain and what you can do to optimize your resilience and essential brain functions during this difficult time. You might find the outcomes of your efforts are the silver lining in the divorce cloud, and the light at the end of the tunnel.

Divorce is painful. There is no way around it. The good news is that your mindset about it has a great impact on how damaging this stressful event will be to your mind and body. Attitude is everything!

Six Ways a Collaborative Divorce Supports Your Family Values

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by Bart Carey, Attorney/Mediator and Family Law Attorney
Law Office of Bart J. Carey, Mediation and Collaborative Family Law

Why do so many people behave so poorly when they separate and divorce? You know what I mean. As people choose to separate and divorce, as we get caught up in emotions and conflict, we say and do things that, in our everyday lives we’d never do or say.

Worse, this behavior is often condoned, counseled and/or supported by well-meaning family friends and even professionals. We fight for control or justification by speaking to and treating our children’s mother or father in ways we’d never condone under any other circumstance. We’d certainly never teach our children such behavior is acceptable, except they actually are learning from observing what we do.

This reality became personal for me when after a number of years as a litigator, I experienced my own divorce. I learned that divorce is not a legal process. It is a life experience.

As a life experience, I had to ask myself how I could square my own behavior with my values as a husband and father. Like many, I can’t say I was proud of everything I said and did.

A big part of the problem was the court process, which pitted parents against each other as adversaries in a win-lose fight while placing the decisions regarding their most precious treasures of their hearts in the hands of lawyers, judges and other professionals.

This experience launched me on a life and career changing journey: how to find, and offer my clients, a process that can be shaped to reflect their values:

  • A process in which spouses are supported and encouraged to work together, not against each other, to plan the family’s future while protecting their respective rights.
  • A process which allows the family to fashion a financial plan that provides for everyone’s needs yet still focuses upon the family’s goals and priorities.
  • A process which helps spouses address and manage their fears and emotions while still being able to choose to behave the way we would teach our children to behave, with respect and dignity for each individual.
  • A process that allows them to remain a family throughout and after the divorce process.
  • A process that supports and teaches co-parenting tools so they can better raise their children after transitioning to two households.
  • A process that supports parents to set a living example for their children of the values they have already worked hard to instill in them during the biggest crisis their family will likely ever face.

There is good news. Collaborative Divorce is that process. Review the information on this website for more information. The Collaborative Divorce process allows me to align my career with my personal values. You will find it a process which allows you to live up to your values.

Did I mention Collaborative Divorce can be easier on the pocketbook than a stressful, contentious litigated divorce, too?

How You Can Benefit from the Collaborative Practice Philosophy

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by Brian Don Levy, Esq., Collaborative Practice Attorney & Mediator

Social science research including the United States Census routinely reports that roughly fifty percent or more of all marriages end in divorce. Co-habitating relationships fail at similar rates. We expect same sex marriages to follow the same pattern statistically once enough time passes to gather the data over the next decade as well. Psychology Today reports that in 1990, fewer than one in 10 persons who got divorced was over the age of 50, while today one in four people getting divorced is 50 or older.

Since a certain amount of divorce is statistically inevitable, it is imperative we find better ways to facilitate the legal, financial, and emotional processing of a human experience through our civil systems. The emotional devastation that often occurs with the breakup of a relationship shouldn’t be a given. This is where Collaborative Practice lives.

Despite the jokes and eye-rolling over the term “conscious uncoupling,” actress Gwenyth Paltrow put her finger on a healthy modern attitude embodied within Collaborative Practice. Collaborative Practice is the process that provides a more respectful alternative to the destructive divorces we see too often when parties use the court system to end their marriage. Collaborative Practice is designed specifically around ways to minimize the hurt, the loss of self-esteem, the anger and the alienation that occurs in many traditional litigated divorces. It is also designed to support families in transition to take advantage of all of their healthy options and opportunities while building a better tomorrow.

The Collaborative Law approach is grounded upon making human dignity and respect a priority. Individuals may cease being partners, but they don’t cease being good people who deserve consideration. Nor do they cease being parents and part of a family unit after a divorce. Collaborative Practice has a firm grasp on this reality – When a divorce goes into a courtroom, the “winner take all” mentality inflicts damage and leaves pain in its wake, which takes a long time to heal at best, and may never heal at all at its worst. All of this ugliness takes place in a public forum, on the record and for all to see.

Every part of Collaborative Practice is intended to foster the respectful resolution of family problems. These intentions include open communication, interest based negotiations, solution focused negotiation, out-of-court settlement and no court divorce. When respect is given and received, self-esteem is likely to be preserved, making discussions more productive and a healthy and viable agreement more easily reached.

Collaborative Divorce allows the parties involved to find creative solutions that work for their unique situation, in a private and respectful setting. The parties are supported by a team who will help them learn the skills and techniques to work through problems and conflicts in a productive way. The future of the family is not determined by a judge who is a complete stranger to their circumstances.

The end of a marriage or relationship can be tragic in and of itself. Collaborative Practice believes that the process of divorcing shouldn’t cause or add to the pain and suffering, but rather should guide and support the clients and their children in achieving a respectful resolution of their issues, leading to a hopeful, healthy future.