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.

Children As Messengers And Spies During Your Divorce – Don't Go There!

This came into my in box this morning and I thought it would be of interest to divorced or divorcing parents. The book is available on Amazon.com. I haven't read it and don't know the author but I pass it along as good information.

By Mike Mastracci

When there is ongoing custody conflict, children should rarely be asked to relay messages to their other parent. Asking a child to carry messages is yet another lose-lose proposition. By asking your child to be a messenger you do nothing to improve your parental communication skills with the other parent. Furthermore, you place your child directly in the middle of an area already ripe for a communication meltdown. Even a seemingly simple and benevolent message can lead to chaos.

Here's an example that may sound familiar: "Tell your father that we have plans on Friday night so he can pick you up on Saturday at 10 a.m. instead of Friday at 6 p.m."

In a case like this, Mom may be pretending, or even genuinely believing, that she is doing a good deed by giving Dad advance notice and avoiding any confrontation between the two of them over this issue. Either way, she is WRONG!

Let's look at the potential pitfalls in this one simple scenario:

• The child forgets (or because of the desire to avoid conflict pretends to forget), and the result is that Dad shows up on Friday night and no one is home.
  
  
• The child tells Dad, as instructed by Mom, and Dad blows a fuse. The result is a bad transition time for father and child.
  
  
• Dad says, "When you go back to your Mother's, tell her that I will be there as scheduled," and the child forgets (or pretends to forget) to deliver the message to avoid any more conflict.
  
  
• The child feels apprehensive, doesn't want to hurt Dad's feelings, and is upset with Mom for "causing" this dilemma.
  
  
• Dad says, "Tell your Mom that you'd better be there on Friday night as planned or I'll (call the police, call my lawyer, file contempt proceedings...)." – You fill in the blank.
  
  
• It's Friday night, Mom wants the child to go to the planned event, and the child is apprehensive about going because of the situation; the child is expecting Dad to show up and "cause a scene." They leave before Dad's scheduled time just in case. The next morning there is a bad exchange between the parents in front of the child.
  
  
• When Dad arrives on Saturday the child may get the third degree about what plans were "so important." Dad bad-mouthing Mom then becomes more likely.
  
  
• Questions like what, where, when, why, what time, and who was there, may potentially consume the transition time between homes.
  
  
• What if Dad had special plans for Friday night that the child would have really enjoyed?
  
  

All of this headache and heartache can be avoided when parents act like grown-ups and do their own communicating. There is almost never a reason for your children to act as go-betweens. It can be avoided with a little effort and some creative maneuvering. When you allow yourself to use your children as messengers, you're really placing responsibility on them that belongs to you. Don't load your children down with your own burdens. Don't make life easier for yourself by making it more complicated for them.

If treating your children as messengers isn't bad enough, it is really inappropriate to use them as "spies". When children are told to report on the activities of the other parent, it places the children in a no-win situation. Even worse, using your children as spies has other negative consequences. It promotes lying and deceit. Encouraging spying promotes picking sides. It also creates loyalty conflicts for your children. As a result, children may clam up, become untruthful, or untrustworthy.

It can be difficult to break the habit of inappropriately questioning your children after they return from time spent with the other parent, but it must be done. A little child-focused thinking should get you there. Think about how it feels for your children to transition from one home to the other. When they return to you, they want to know you're happy to see them and that you're focused on them. Interrogation does not start your transition time off on a good note, and it makes children very uncomfortable whether they outwardly show it or not. Furthermore, if your children are worried that they'll have to "report" to you, transition time will be awkward for them. Instead of focusing on how your children have already spent their time, focus on how you’re going to spend your time with them.

Obviously, there are some common-sense exceptions. Real and legitimate safety or health issues fall into that category. But that's not what I'm talking about in this article, I'm talking about when you want to know whether Daddy's new girlfriend went to the zoo with them. Don't make a situation such as this even more complicated for your children. They'll tell you what they want to tell you, and they'll be a whole lot more likely to do so when you don't give them the third degree or send them to purposely spy.

Children are smarter than you think. Simple communication designed to surreptitiously interrogate the children is not going to work for long. They will try desperately to exercise their right to remain silent. The reason they will do this is because they know that anything they say can and will generally be used against them - in one way or another! Again, the key is to focus on the life you and your children live together and enjoy every moment of it.

This is just one article that is similar to the information you will find in my new book, "Stop Fighting Over the Kids: Resolving Day-to-Day Custody Conflict in Divorce Situations"

Available at Amazon.com

Tell it to the Judge

Most of my divorce cases are cooperative and are not litigated but occasionally I take on a heavily litigated case. Usually these litigated cases serve as a reminder of why I am so passionate about trying to change the way people divorce. The contrast is striking between a litigated case and a collaborative case. This week I worked on two cases that provide great illustrations of that difference.

Case one had gone on for more that a year and was scheduled for trial March 9. A few days before trial we tried to resolve the matter through a mandatory settlement conference. These conferences are intense and emotionally draining but not nearly as much as trial can be. As is typical in these settlement conferences, the parties were in separate rooms with their respective attorneys as the mediator shuttled between rooms. The parties were wide apart and neither was willing to compromise. No settlement was reached and my opposing counsel took my client's deposition. Again my client endured four emotional hours during which irrelevant but potentially embarrassing questions came one after the other. These questions could never be asked at trial but an attorney has wide latitude during deposition. After the deposition I used my best negotiating skills to find resolution. Both parties remained intransigent. Somehow both parties believed they would prevail if they could just "tell it to the judge". So both attorneys prepared for trial.

Although trial date was March 9 we were on hold waiting for an available court. A divorce without children is lowest priority and we waited more than two weeks. Last Friday we received notice that trial would begin Monday morning on March 23. My client lives out of state and would have to find last minute plane tickets.

Both attorneys worked hard at coming to resolution. We know that trial would be very expensive and neither client would like the end result. We had been working at resolutions that would meet each of our clients priorities. Results of trial would "split the baby". We knew both parties were at risk of a property division that would not serve them well. So why would the parties continue to hold out for trial? They each believed that if they could just "tell it to the judge" the judge would realize how virtuous they each were and would find for them. My client had complaints about what her husband did for the last 20 years. Similarly her husband knew he would receive sympathy by relating his list of complaints. The truth is none of their complaints would even be heard by the judge.

Washington is a no fault, community property state. That means the bad acts of a party are not relevant. All the property in this case is community. A court would merely divide all property equally. My opposing counsel and I were working on an equitable division that would divide property in a way that made sense to the individual parties. She needed cash and he wanted to keep his business. We had that resolution well worked out and knew our clients would not do better at trial.

Late Friday we thought we had a good resolution and had agreement in principle. Where were we stuck? The wine glasses! She wanted them and he, who was still living in the house, claimed he did not know where they were. Stalemate. Does anyone believe the battle was really over the wine glasses? Years of anger and disappointment were wrapped up in those goblets. Both were still convinced they would get the sympathetic ear of the judge. Both attorneys knew these emotional issues would not be addressed at trial and were frustrated about preparing for trial when the relevant issues were relatively simple to resolve and the emotional issues were not relevant and the rules of evidence would prevent introduction of most testimony the clients wanted to present.

Sanity prevailed at 10 p.m. Friday as my esteemed opposing counsel and I worked out the last of the logistics by cell phone and e mail. Both attorneys are satisfied and neither client is. We saved our clients thousands of dollars and forged what we know is as equitable result as we could have in this situation. We gave our all only to end up with dissatisfied clients.

Case two also has gone on for over a year. However the delay has been at the clients' request. They have endured several traumatic events recently and needed to pause the divorce discussions. The clients had already crafted interim agreements with the help of their attorneys, financial planner and mental health coaches. Both husband and wife were content with the interim agreements and were not prejudiced by the delay.

Last week we had a "team meeting" with husband and wife, their attorneys and the financial planner. A lot has changed since our last meeting. The home value has plunged, the retirement accounts are significantly reduced, wife has lost her job and husband's job is at risk. Rather than expressing bitterness, both husband and wife expressed understanding and empathy. Both were concerned about the well being of the other in the future. They still want to dissolve the marriage but want to do so with dignity and respect. They have adult children and want to maintain a family relationship. They are my poster illustrations of the ideal collaborative case. This couple could easily have been in the same position as the litigious couple but they made a different choice early on in the divorce process. And that choice has made all the difference.

My mission is to change the way people divorce. I recruit others to help me spread the word that there is a different way. I hope these two stories provide incentive to choose a different way.