by Win Heiskala
Family Law Attorney in San Diego
You made the very serious personal decision to terminate your marriage. This decision necessarily takes you to the procedure known as divorce (AKA Dissolution of Marriage in the Court).
You found yourself an attorney who discusses the different processes with you that can be used to divide assets and debts, set a child sharing plan, and set support. You say, “We don’t want to go to court – we just want to settle.”
The Collaborative Family Law model provides the most complete and efficient process to meet your goal. The hallmarks of the Collaborative Law divorce process are an agreement from everyone at the outset to exclude all court proceedings, and engage the services of various professionals, known as “the team” to assist in the resolution of all issues.
Why is a “team” needed? Why do we need a team just to get a divorce? If you don’t have any assets, income or children, then you don’t need a team and you can stop reading. If you do have any of these, I encourage you to continue.
ALL parties in a divorce in California no matter what process is used are mandated by law to exchange Preliminary Declarations of Disclosure. It means each side must provide in writing to the other a disclosure of all assets and debts. There is considerable debate regarding the extent and specificity required, but the goal of the law of disclosure is to adequately inform both sides before decisions are made regarding dividing assets and liabilities.
The main advantage to having one neutral financial person as part of a Collaborative team is that you deal with just one individual working to provide fair and accurate information to both parties in a divorce. Both parties provide financial information to the single financial expert. He or she verifies and organizes it, and reports the information in an understandable form to both parties and their counsel. Everyone is on the same page.
In comparison, in many “litigated” cases, a joint expert is not retained at the outset of a case, and after a great deal of increased animosity, distrust and anxiety, not to mention expense, the parties either reach the point of a joint expert or continue to battle each other with their own expensive experts – two instead of one.
Many times even the most sophisticated party in a divorce may be surprised to learn some information in the exchange. For example, husbands and wives can be wrong about how title is held on a property, whether something is community property or not, or the true value of a given asset. Clear, organized information such as this is essential to the parties in a divorce to reach reasonable and informed solutions.
The independent financial specialist also assists in determining the true income of both parties and the relative expenses for separate households going forward. Compensation packages for W-2 earners as well as the self employed have become increasingly complex with the proliferation of compensation such as Restricted Stock/Units, Performance Restricted Stock, Stock Options, claw back provisions, insider trading rules, irregular bonus payouts, profit distributions, 401K and profit sharing plans. Employment benefits can impact both asset division as well as ongoing income available for support. Self employed individuals often have unrealistic opinions of their worth or income.
The parties and their respective counsel need accurate, efficient documents and information in order to adequately educate and advise the parties as to the best solution and informed decisions for their particular case.
Even more important than the financial considerations in a divorce is the attention needed to preserve the best interest of the children. A child specialist can be the most valuable person on the Collaborative team.
First, the children need to be assured early and often that the separation of the parents is not the fault of the child. The child may be in need of therapy that neither parent is able to recognize or facilitate because of his or her own emotional upheaval. The child needs a neutral place to discuss his or her input and even vent, without fear of recrimination from a parent. Children of different ages have different needs and concerns.
All of this can be discussed with the parents and the child specialist in a safe and calm situation in order to reach a suitable, workable family child sharing plan. Every mental health expert agrees that continued animosity and conflict between the parents in divorce renders harm to the children from which they never recover. The Collaborative team, with the help of the child specialist, has the best chance of avoiding this tragedy.
If parents are unable to agree regarding the sharing of the children in a litigated divorce case in court, the family frequently undergoes a costly custody evaluation process and may have their own “expert” to review the work of the expert conducting the evaluation. Once again, you have the potential for three experts instead of one, as well as counselors and therapists, coming in at a much later stage of the proceedings after further polarization of the parties and damage to the children. The structure of the Collaborative team and process can “put everyone in the same room” from the beginning of the process.
Equally important to the team are the coaches for each of the adults. Divorce is one of the most emotional processes a person can go through in a lifetime. Everyone can use assistance from time to time for insight and balance while dealing with the inevitable feelings of loss, uncertainty, fear, anger and overall anxiety. Your attorney is not a psychologist. It is the duty of the attorney to maintain as much objectivity as possible in order to advise the client in the decision making process, and the individual coaches are a tremendous assistance in facilitating the parties to reach resolution.
With a professional Collaborative team in place from the outset of a divorce, you will be provided information, organization, support, advice and assistance for the entire family in the transition process for the best possible solutions. Otherwise, you may end up with a team or two anyway, but in a courtroom instead of a conference.