Don’t Want to Hire a Lawyer for your Divorce? How About a “Legal Coach”?

Consulting with a lawyer can be a huge step for some people when they are contemplating divorce. Seeing a lawyer makes it far too real. Seeing a need, I developed a program for those who don't want to hire a lawyer. At least not yet. Do you identify with any of the following?

Harriet is unhappy in her marriage but has a lot of fear about what the future would look like for her. Her therapist suggested she get some legal advice.

Larry has been researching on line for months now regarding divorce. He has found forms that are confusing, legal advice that doesn’t seem to apply to his case, he even found a child support calculator but it doesn’t seem to fit his case. Larry does not want to hire a lawyer

Martha and her husband have been working with a divorce mediator but she feels she has not been given enough legal advice and wants to know what would be legitimate requests to make without having to involve another lawyer.

Tom is a whiz and investments and finances but neither his CPA or investment advisor can give him satisfactory answers to tax implications of divorce. His financial advisor told him to get legal advice.

Bob is president of his company and is worried about the effect of a divorce on his business. Before he makes a decision, he needs to know what he can expect and how can he determine how his business will be evaluated.

Sally and her husband have fashioned a settlement agreement but her friends and relatives are warning her that she may be missing something. Sally doesn’t want to involve a lawyer but her friends are insisting she talk to one.

Don really wants to move out of the house for a “trial separation” but fears he will be accused of abandonment and will lose his rights to property or parenting. His coworkers have advised him to talk to a lawyer first.

Mary needs some legal advice but feels hiring a divorce lawyer is just too big a step. Besides all the ones she has talked to seem to be trying to sell her their services. She wants objective advice.

In my ever evolving effort to find ways to help people going through or contemplating divorce I experiment with different programs I can offer. A solution for Harriet, Larry and the others just might be a package I call “Legal Coaching”.

For a flat fee I offer a legal coaching session dedicated to the individuals needs. I can explain the legal process, show a client what the forms look like and give them a timeline. I can run child support calculations, discuss support and parenting issues. I give an unbiased assessment of their situation. The fee is about equivalent to my hourly rate but I don’t turn on a timer. Most sessions run from one to one and a half hours, sometimes longer. We take as long as we need for that session. During the session I might even refer the person to a different lawyer that I think would be more appropriate for their situation.

In an earlier day I would be known for my golden rolodex. Now it’s an electronic database. I have given referrals for parenting specialists, divorce financial planners, real estate agents and mortgage brokers. I have pointed people in the right direction for career advice, personal growth and even professional organizers. My network even includes a collision repair specialist but that’s a different story.

The benefit to legal coaching is that the advice is completely unbiased. I can assess a client’s case honestly without concern whether that person may not hire me if I tell them what they don’t want to hear. The client’s have paid for the time and don’t have to worry that they are wasting my time because they do not plan to hire me. A client can come back for more coaching at anytime – completely on his/her timeline. The coaching fee can also be applied to payment for full representation. Kind of rent before you buy.

A legal coaching session is different than the introductory session a client might want before making a hiring decision. That meeting is more a matter of seeing if our personalities fit and, given the facts of the case, if I am the right lawyer for them and they are the right client for me. Legal coaching is much more in depth.

So far I have had several people take advantage of the legal coaching model and I see it evolving further as a very viable product for some people. I will continue to develop more products and most likely add some hand outs. My clients will be my best teachers as I develop this concept.

COMMON MYTHS ABOUT DIVORCE, CHILD CUSTODY AND COMMUNITY PROPERTY IN WASHINGTON STATE

Here are some random Friday musings about some of the misconceptions I often hear. No particular order or importance just as I thought about them. As always, this is informational only and not intended as legal advice for your particular situation. Always confer with an attorney before taking any action regarding these issues.

My Spouse won’t give me a divorce

You don’t need your spouse’s permission or agreement. Washington is a “no fault state” and the only grounds for divorce (technically called “dissolution of marriage”) are “The marriage is irrevocably broken”. If one person believes this is true, then the marriage will be dissolved. The person seeking to dissolve the marriage first files a Petition for Dissolution of Marriage. If the spouse refuses to sign anything and there is proper service meeting specific legal specifications the divorce can be completed by default. Even if you don’t know where your spouse is, you can still accomplish legal service with a court order for mail or publication in a legal newspaper.

While the divorce can be accomplished without the other person’s cooperation, you still may have issues regarding children or division of property. If you are very clear on you petition as to what you are requesting and your spouse does not respond, then your request will be granted.

A divorce by default is probably only appropriate if there are no children, real estate and very little property.

My spouse and I agreed to 50-50 custody so no one will be paying child support

I hear this constantly and it is simply not true. Custody is now called a “parenting plan” and the parenting plan determines where the children are on a day to day basis. Child support is a separate issue and is based upon the Washington State Support Schedule. While there may be some adjustment for residential time, child support is mostly based on the parents respective income.

Washington is a community property state so if we get married everything will be community property

Only property acquired during the marriage is community. This means that if you owned a house or business before you married it does not automatically become community property when you get married. What gets tricky is that your income during the marriage is community and if you put that money into the business or property, the community has an interest. Gets tricky here doesn’t it? Gift or inheritance also is separate. A common problem I see is when parents give a gift to the couple. Was it a gift only to their offspring or was it to the couple? Depends who you ask. At the time of the wedding, everyone may think it is to the couple but if the marriage is dissolved, they parents may claim the gift was to their son or daughter only.

Community property is one of the most difficult subjects in law school and even professionals differ over this issue. Don’t be surprised if you and your spouse have a different opinion. And don’t be surprised when your lawyer answers your question with “that depends”.

Community property means everything is divided 50-50

My clients are shocked when they learn this is not true in Washington. The operating word in Washington State is “equitable”. Is it safe to say that divorcing couples rarely agree on what is equitable? Some folks actually believe property should be divided by who contributed the most toward purchase. They couldn’t be more wrong. Equitable is based upon the relative position of the parties, the length of the marriage, the earning capacity of each and many other factors. In a long term traditional marriage it is not unusual for the stay at home spouse to receive 55 to 60 percent of the community assets and sometimes more.

Every case is different and, as they say “these results are not typical”. By the way, don’t think this just applies to stay-at-home moms. I have had several cases where the higher earning spouse was the wife. Once again, the lawyer answer: “It depends”. If you really want to know, here is the specific law:

“the Court shall, without regard to marital misconduct, make such disposition of the property and liabilities of the parties, either community or separate, as shall appear just and equitable after considering all relevant factors, including but not limited to:
1. The nature and extent of the community property
2. The nature and extent of the separate property
3. The duration of the marriage, and
4. The economic circumstances of each spouse at the time the division of the property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to a spouse with whom the children reside the majority of the time." (Revised Code Of Washington 26.09.080)

Often "just and equitable" will mean a greater than 50% to a spouse who has forgone a career and does not have the ability to build retirement assets. The other surprise to some people is that separate property is taken into consideration when making this distribution. Not that it is divided but it does affect the relative economic circumstances of the parties.

My name is not on title to the house/car/boat etc. therefore it is not community.

See numbers 3 and 4 above. Only one name on the title doesn’t necessarily mean it is not community.

I worked hard all these years for my pension so it is mine. Or, I built this business myself without any help from my spouse, therefore it is all mine.

See number 3 and 4 above. I often tell my clients “I don’t care if your spouse sat on the couch and ate bon bons all day, your business/ pension is community property.

When my child turns 14 (or 12, or 16, or name an age) he/she can decide which parent to live with.

The age when a child can decide which parent to live with is the age of majority in Washington, Not only is there not an age when a minor can choose which parent to live with, most parenting specialists would not approve of putting a child in such a position.

If I move out of the house, it will be considered “abandonment” and I will lose my house and custody of my children.

No. While most divorce attorneys would advise making some arrangements for parenting time with the children before moving, you will not lose your rights because you moved out. Moving out does not affect ownership of the property. I really urge folks to get a consultation before they move but moving is not "abandonment" as it is in some states.

Disclaimer: These answers are intended for Washington State residents. The laws of every state are different and these answers may not apply in another state.

PROJECT MANAGMENT OF THE DIVORCE PROCESS

As an attorney focusing on cooperative divorce I find that I have to customize the process depending on the individual couple. Some couples want as little involvement in the legal process as possible while some couples want to be more pro-active and actively apply project management techniques to the process. They want some degree of control over the process but recognize the need to delegate and to seek legal and financial advice. It may be helpful for this project manager type to consider the following:



NOTE: These guidelines apply to Washington State divorces only. All states are different. Consult with an attorney in your state.




Consider alternatives to traditional divorce litigation


Couples involved in the litigation process generally completely give up control of the process and are bound by court schedules, procedural issues, formal discovery processes and the litigating attorney’s processes. If a couple agrees to cooperate on the divorce they can explore various alternatives that will keep them out of court and allow them to maintain control.
Line up your professional team
In some cases, couples are able to engage in rational discussions and have general agreement on most issues. Often these couples believe they can simply get the forms on line and process their own divorce. The first thing they find is that the forms are voluminous, confusing and most of all – very intrusive. An experienced family law attorney can save the couple considerable frustration, time and help them preserve their privacy. It is important also to engage an attorney to assist in the timing of various filings.
The couple should determine if they each need an advocate to represent their interest or if each feels strong enough to advocate for herself/himself. Each can have separate representation and still have a non-adversarial divorce. A process called “Collaborative Law” had been developed by a group of legal professionals for this very purpose. In collaborative law the couple and their respective attorneys sign an agreement that they will not engage in litigation.
After the legal team has been assembled, the couple will want to engage additional professionals. If one of the parties owns a business, they will want to have an appraisal of that business. Again, the couple can agree on one business appraiser with the instruction to provide a neutral, unbiased report. Mortgage advisors, real estate agents, financial planners and tax professionals may be part of the financial team.
Mental health professionals can serve a valuable purpose on the team. A parenting specialist can help the couple with helping their children adjust to the process and offer guidance as to individualized parenting plans. Sometimes the couple will want to engage a mental health professional to help them communicate in a more positive manner.


Determine the issues


A divorce resolution usually resolves around a key set of issues. Some will be more difficult than others. Some issues will be emotional and some can be resolved in pragmatic, non-emotional solutions. The former are generally parenting plans and the latter involve property settlement. Child support and spousal maintenance can present a little of both. Making a list of issues without offering immediate solutions will help the couple prioritize the issues. Also to be addresses would be placing a value on various assets – home and business appraisals, pension plan and retirement account assessments.


Set timelines


The only timeline imposed by the state is that a couple must wait 90 days between filing a divorce and obtaining a decree. The rest is up to the couple. It may be wise to not file any legal papers until refinance or loans have been completed. Sometimes medical insurance may be an issue. Some couples complete everything in less than a month and then merely wait for the 90 day period. More likely, it will take several months to complete all the negotiations and agreements. Timelines help set goals for accomplishing certain processes to keep everyone on track. Most couples like to start the 90 day clock by filing a petition and then work on their settlement agreements but they may have valid reasons for postponing the filing.


Gather data


A couple will need to gather information regarding assets and debts. Have they considered pension and retirement accounts? What is the value of the home and what is the mortgage balance. Has all debt been accounted for. Besides value of a business, I have had couples needing an appraisal on collectibles, horses, farm land, classic cars and once a violin. It is necessary to have all the assets and debt on the table in order to obtain an equitable division.


Don’t forget the parenting seminar


Washington State requires all parents to attend a seminar “What about the Children” before a divorce can be completed. It is frustrating to have all agreements completed and the documents executed and find that the decree cannot be entered before the parents attend the seminar. It often takes a few weeks to get a space in the seminar. Early registration is encouraged.


Go to court for the final decree


An attorney can make the final step much more efficient and time saving than an individual appearing on his own. Only one of the parties need to go in front of the judge and family law attorneys can go in without a scheduled court date and usually know the best times and places and how to avoid a long wait. The final hearing is usually over in less than five minutes and waiting time is almost always minimal.

Conclusion

The legal community has recognized the need for non-adversarial divorce, especially for couples who have been married for a longer period of time, and have accumulated a variety of assets including real estate and retirement plans. Today, a group of attorneys are now active in collaborative law, divorce mediation, cooperative divorce and some are even available to help a couple in a so-called “kitchen table” divorce where the couple does most of the negotiations themselves. An on-line search on http://www.respectfuldivorce.org/ , collaborative law sight provides many resources and several resources are also available on my web site http://www.karinquirk.com/.

So, no matter how you decide to manage your divorce process, or what role you wish to play in it, remember that there are choices. By defining your role and responsibilities, much like other project management opportunities, divorce can be a process that is easier navigated than you think.

Tell it to the Judge

I have been making it my mission to change the way people think about divorce. I truly believe in empowering couples to dissolve their marriage in a respectful cooperative way without going to court. Most people find going to court for their family law cases to be a miserable experience. It is very public, sometimes humiliating and very intrusive. That is the reason I am actively participating in organizations that promote keeping family law cases out of court such as King County Collaborative Law, International Academy of Collaborative Professionals and various mediation organizations.(www.respectfuldivorce.org , www.collaborativepractice.com , www.mediate.com )

I recently found an unlikely ally -- A Judge! Actually he is a retired Court Commissioner, (Court Commissioners hear family law cases in this state) and had been on the bench for 25 years. This judge spoke to a conference of family law attorneys promoting mediation and collaborative law. From his point of view, there are many reasons couples should consider alternative dispute resolution. In the future I hope to have him write a guest column for me but in the meantime here are some points to consider.

Judges have to consider case law as precedent -- Judges are bound by laws made by the state legislature often in response to a particular case and various previous cases that have been determined by hiqher courts. You may think your case should be an exception to those laws. The judge may even vehemently disagree with those prior cases or legislation. Judges don't make new law and will rarely find exceptions -- even if the case is argued brilliantly and the facts appear unique to you.

The Judge doesn't know the case as well as you do -- The people who have the most information about the case are the parties. They in turn translate that information to their attorneys who then translate it for the Judge who has a very short time to digest the information and make an informed decision. A lot may get lost in translation. One Judge described this to me as a pyramid with the parties at the base and the Judge at the very top. As you move up the pyramid there is less and less information. Even the experts and witnesses have only part of the story.

Add to this the fact that the courtrooms are overcrowded, Judges may be hearing many cases in one day and Judges may have their own preferences or biases. Some are open to creative solutions and some are very traditional. Most of the Judges are fair and they are competent but they are still strangers to your particular situation.

Going to court is the most expensive option available in not just money but time and emotional trauma.

Read more about options on my web site. http://www.karinquirk.com/