Divorce negotiations can be tricky. I mean if you two were “on the same page” you may not  be in divorce court, right? What makes collaborative divorce process different is that the process itself address the top 5 reasons divorce negotiations go wrong.

Reasons Divorce Negotiations Go Wrong

1. You are at different emotional stages in the divorce process. Just like the stages of grieving when a loved one passes, you will go through (and bounce back and forth between) different stages of grief in the divorce process. This is true even if you are the one filing for divorce. when one of you is not ready emotionally, it’s difficult to engage in divorce negotiations.
2. Fear. One, or more likely, both of you will confront fear at some point during the divorce process. The most prominent fear is that of financial insecurity. When you are in a state of fear, your brain chemistry changes. This makes rational divorce negotiations difficult, if not impossible.
3. Desire to inflict blame or retribution. We can’t help it. We’re programed to blame someone or something when things go “wrong.” And by wrong, I mean differently from what we expected. In no-fault divorce states like Florida, the legal system does not place blame or exact retribution on the “offending” spouse. When one spouse wants to engage in the “blame game” divorce negotiations often grind to a halt.
4. Feelings and emotions get in the way. In the same way that fear impacts our brain chemistry, emotions also affect our ability to negotiate. Emotions are not good or bad; they just are. Until you can work through your hurt and/or anger, the likelihood of successful divorce negotiations are slim.
5. Different negotiation styles. Personality traits, tolerance for taking risks, and familiarity with the topic all influence how we negotiate. When each spouse has different levels of these factors, offers are viewed with suspicion. We tend to automatically default to the “no” position.

Collaborative divorce lawyers and mediators are trained to consider all these factors (and more).  The collaborative process ensures that both spouses will have a way to talk about these top five factors and deal with them in a safe place. Knowing that your needs will be considered is one of the hallmarks of collaborative divorce negotiations.

ADULT CHILDREN OF DIVORCE

Divorce is a life-wrenching experience for both adults
and children. The adults at least have some control over
their lives and the ability to understand what really
happened. After all, it’s their divorce. But the kids get
dragged, kicking and screaming sometimes, through the worst
loss of their young lives.
Usually they find ways to cope. But the very behaviors
and attitudes they develop to help them survive can later
make their lives unmanageable. Diane Fassel, in her book
Growing Up Divorced (Pocket Books, 1991), describes the
effects.
Not all adult children of divorce have all these
symptoms. Some specialize in one or two as survival
strategies.
1. an overdeveloped sense of responsibility (for
others, usually not for oneself)
2. attempts to control everything (to stave off chaos
and unpredictability)
3. fear of conflict (fear of losing control of anger)
4. taking sides (because they often find their identity
through playing a role, rather than from a sense of who they
really are)
5. fear of abandonment (physical and/or emotional)
6. difficulty setting limits and personal boundaries
(often let others take advantage of them–and then feel used)
7. feelings of helplessness (stemming from
uncertainties about how to respond to situations)
8. obsessive concern with economic security
9. difficulty trusting others
10. unrealistic expectations about marriage
As if this were not enough, many children of divorce are
exposed to violence, addiction, abuse and poor communication
between their parents prior to the divorce. Since children
learn what they live with, they often grow up to repeat these
behaviors as adults. It’s all they know about how to do
family.
There is no doubt at all that divorce is a major crisis in the life of a family and all members are affected. Nevertheless, there are things that parents can do to minimize the negative effects on their kids.
1. Be aware of the temptation to take sides and take steps to avert it. Let the kids know that no one is at fault. It?s just a change the parents are making because they?re not happy together anymore.
2. Make sure the kids know this is not about them and that there?s nothing they can do to change it.
3. Reassure them that the major aspects of their lives will continue without major change, and then make it true. (If you can?t make it true then don?t promise it.)
4. Remind them that although Mom and Dad are leaving their marriage, neither of them are leaving the kids. And then make sure that is true!

Some think that the fifty-year rise in the divorce rate was a terrible thing. I say “was” because that rise now seems to have leveled off at just under fifty percent. Maybe, after all, it’s not so terrible that people can now do what they want to do, even change their minds, that women can support themselves and their children or that spouses can choose not to live with abuse, infidelity or emotional isolation. It’s the damage to kids and to society that people worry about.

But wait. We shouldn’t assume too much, even when it appears logical and intuitive that children would be permanently scarred by the losses and uncertainties involved in their parents’ decision to split. The truth is often more complicated, especially when the subject is human.

And the way we arrive at the truth is through careful, scientific study, not biased conjecture. This is what we’re offed by E. Mavis Heatherington of the University of Virginia in her book, For Better or For Worse (W.W. Norton). Heatherington, one of our leading scholars of divorce, followed 2500 children of divorce from 1400 families over thirty years.

Twenty percent of children of divorce are troubled, compared with ten percent of those in intact families. They also face a higher risk of getting divorced, themselves. Some people never do recover from their divorces–but these are mostly men, not women and not children. In fact, some adults and children, especially women and girls, actually do better after a divorce than they did before. They may grow and become competent in ways they never would have before the break-up.

Of the twenty percent who didn’t thrive, Heatherington found that many of their problems predated the divorce. Living in an unhappy family is just as dangerous for kids as breaking it up.

As a society and individually as parents we all want children to reach their highest potential. But they need good “growing ground” in order to do so. The costly negative short-term and long-term effect of divorce on children has long been researched. Although many court districts mandate for divorcing couples with children to take a parenting-divorce course, the varied psychosocial and emotional needs of children are often missed. Consider the following case narrative:

  In a session with a child of divorcing parents, the Child Specialist asks the child to, “Draw a picture of you and your family doing something together.” Sitting slumped over at a children’s desk the child draws with colored markers a ping pong table. On one side of the table, holding a paddle in hand is a female figure (“the mother”), on the other side, also holding a paddle is a male figure (“the father”). The faces of the figures look angry and contorted. In the middle of the table is a ball. “Where are you in this drawing?” asks the Child Specialist. The child responds, “Oh, I am the ball in the middle.” The Specialist then asks, “If that ball could speak, what would it be saying?” The child states, “Stop hurting me.”

In the above example, in a neutral environment, the child is able to express for the first time how he is really feeling. Caught in the conflict between his parents, he does not honestly share with either of his parents his true state of suffering.  The parents, although very well educated, caring and nurturing parents to their child, are both so preoccupied in their own complicated emotional turmoil, that they are unable to fully recognize the extent of their son’s emotional hurt. The child, loyal to both of his parents does not want to choose between his mother and father who are both battling over custody and other affairs.  As each parent separately seeks advice from his or her individual attorney, the crucial needs of the child become further and further overlooked.

Collaborative Divorce offers divorcing parents an alternative course of action that eliminates the need for litigation—a legal process that is very expensive—emotionally, physically, socially, financially and spiritually. Untangling interwoven lives is extremely difficult.  When children are involved the painful separation is even more complicated.  In Collaborative Divorce a team of trained professionals work together to help divorcing couples navigate the divorce process by means of agreed contracting. Most importantly divorcing couples and their attorneys sign a contract agreeing to settle matters “at-the-table”—so to speak—thus alleviating the option of litigation. The attorneys agree to resign from the case if the parties are not able to work through their differences—a rare problem in Collaborative Divorce. The team is made up of Family Law Attorneys, Financial Specialists, Mental Health Specialists and a Child Specialist. Each professional has a defined role within the process. In regards to the Child Specialist, his or her role is to advocate for the “voice” of the child.

The Child Specialist’s unique role is to gain the perspective of each child in the family while also providing a safe haven for children to express themselves. The Child Specialist also listens to the parent’s hopes and dreams for their children’s future. From the perspective of both parents their children’s highest good is put forth and examined. In this light the divorce experience is thus reframed and parents can begin to make decisions with their children’s best interests as a foundation.  The Child Specialist works collaboratively with the other team members to help make recommendations and advocate on the children’s behalf. In this way the children’s voice is heard and represented.

By Cary B. Stamp, CFP®,CDFA™

Recent court rulings in Florida divorce cases have held that when the alimony calculation is made in a divorce case, all “available sources of income,” including potential withdrawals from equitably distributed IRA and retirement (“Qualified”) accounts should be included (Niederman v Niederman 60 So.3D 544)  These cases have held that even if the recipient is under age 59 ½ and not normally eligible to make a withdrawal without a penalty they may do so using an exception to the normal rules under IRS rule 72(t). The exception in rule 72(t) allows the holder of an IRA or qualified retirement account to make distributions without penalty provided that those distributions are made as a series of substantially equal periodic payments and continue for the greater of 5 years or until the participant reaches age 59 ½.

IRS instructions on using a 72(t) distribution can be found on the IRS website:

http://www.irs.gov/retirement/article/0,,id=103045,00.html#/

Fortunately, the court ruling in Niederman V. Niederman only requires the distribution of earnings on retirement accounts and not the invasion of principal. In that case, both financial experts agreed that a 5% withdrawal rate would not require invasion of principal. Ironically, that case was concluded in 2008 and could not have foreseen the significant declines in the equity markets or the low interest rates we experience on deposits today.  From the prospective of a financial planner, the ruling makes little sense in calculating income. As a practical matter, almost none of our clients choose to draw income from their retirement plans before age 59 ½ and many clients choose to delay those distributions as late as possible until age 70 ½.  The ruling, like most of the laws regarding alimony in Florida, also fails to take into account the effect of inflation on future income needs.  While 72(t) distributions may have a waiver of the penalty of these withdrawals, taxes are always due on these distributions at the time they are made (Roth IRA’s are excluded if the rules are followed).

If we have historic inflations rates of close to 3% and investment returns on a conservative portfolio could average 5%, then the “safe” net withdrawal rate of income on these accounts should be closer to 2%.  Again, as a practical matter, many divorced women are not in a position to take risk with their portfolios and with current rates on fixed income investments at mutigenerational lows, even using a 5% return calculation is aggressive. The conclusion that I draw from these observations is that using rule 72(t) as a source of calculating income available to a divorcee places a significant burden on the non-working spouse and creates a situation where they may easily outlive their income.  Other court rulings have included the finding that alimony payments may not contain a “savings component” even if this was the standard practice during the marriage. I would argue that including an index for inflation in alimony calculations is not a reflection of savings—it is a reflection of reality. Inflation will happen and portfolios will need to be invested to take inflation into account.

Florida Statute 61.082(g) requires the use of “all sources of income available to either party.” There is little question that this issue will continue to be litigated unless there is a change in Florida Statutes that eliminates qualified assets as a “source of income.” While it makes a compelling argument from the spouse who is compelled to pay alimony, it does not make sense as a long-term financial strategy for either party. The courts have also indicated that the ruling cuts both ways and that the payor spouses’ “ability to pay” should also include using 72(t) distributions as a strategy for calculating available income. While it appears that current case law states otherwise, it would be difficult to find many financial professionals who would advise their clients to make pre-59 ½ distributions from their qualified accounts to pay for anything. Rarely is that a prudent financial or tax strategy.

Other Cases relevant to the 4^th District Court of Appeals in Niederman:

Donoff v. Donoff              940 So.2d 1221

Mallard V. Mallard           771 So.2d 1138

Diffenderfer v. Diffenderfer 491 So.2d 265

Castaldi v. Castaldi           968 So.2d 713

This material has been provided for general informational purposes only and does not constitute either tax or legal advice. Investors should consult a tax or legal professional regarding their individual situation.  IRS CIRCULAR 230 DISCLOSURE: To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code; or (ii) promoting, marketing, or recommending to another party any transaction or matter addressed herein.

Divorce attorneys are familiar with the statistic that the overwhelming majority of divorce cases are settled before trial.  If so many cases are resolved prior to trial in the traditional adversarial method of divorce, then why would anyone desire to use collaborative process law as an alternative to the usual adversarial method of dissolving marriages?

Most people in Palm Beach County and elsewhere don’t realize that the majority of divorce cases are either settled because of the threat of trial and on the eve of trial.  Divorcing couples often settle their cases because one or both parties are either emotionally exhausted and/or financially exhausted.  Either way, the parties cannot proceed.  In the adversarial system, information is not shared freely.  Spouses also may develop a pattern of adversarial interaction and oftentimes they relate to one another out of mutual concern and fear.

As a result, agreements are often reached under considerable tension and anxiety and relationships are damaged and family units may be negatively impacted.  Under such conditions, divorcing spouses often experience buyer/seller’s remorse at the conclusion of their negotiations.

In contrast, divorce cases using the collaborative process are generally settled sooner and are much less costly than the traditional adversarial method.  The collaborative process divorces require a respectful environment where the participants are involved in problem solving in the context of interest-based negotiation.  As a result, their interactions are far less stressful and they develop a pattern of interacting with one another in a respectful and cooperative fashion.  This develops a pattern of interaction that divorcing couples continue subsequent to their divorce.

As a result, each spouse can bring emotional and legal closure on the issues of the divorce and transition into the next aspect of their lives in a far more meaningful and healthy fashion.  Given these alternatives, many divorcing spouses will find the collaborative process far more beneficial to them in every aspect of their life.

This famous Yogi Berra quote about baseball holds equally true when it comes to dissolution of marriage.  You may think that it will all be done once you attend your final hearing or trial, and receive your Final Judgment of Dissolution of Marriage signed by the judge, but that doesn’t necessarily mean that your work is done.  There can be many loose ends which, if not properly tied up, could potentiallycreate costly and time consuming problems when you are recently divorced.

People who are divorcing or who have recently divorced should, if they haven’t already done so, review their Will, Trust, Durable Power of Attorney, Designation of Healthcare Surrogate, Living Will, Designation of Pre-Need Guardian, and other estate planning documents with their estate planning attorney, to make sure that all of these important documents, and the persons and instructions set forth in them, are still consistent with their wishes and best interests in light of the divorce.  If you don’t already have these documents, you should consider getting them.  A careful review of all pensions and other retirement plans, as well as all investment accounts, bank accounts, brokerage accounts, IRA’s, Certificates of Deposit, financial institution accounts, and similar accounts, should be made to assure that all beneficiary designations are still consistent with your wishes, your estate plan, your marital settlement agreement, the ruling of the court, and your potentially changed tax circumstances.  Also, many pensions and retirement vehicles require specialized court orders to effectuate a transfer of interests, and a delay in obtaining such specialized court orders can result in costly surprises.

A review of life insurance policies should be made to determine if you have a changed need in benefit amount, and if beneficiary designations are consistent with your wishes, as well as with the terms and requirements of your marital settlement agreement or Final Judgment of Dissolution of Marriage.  Many families have contributed to pre-paid College Plans and 529 Plans to provide for the future college education of their children.  Most such plans have a designated owner, designated survivor, and the children as designated beneficiaries, and these designations may need to be changed to reflect your agreement with your former spouse, the ruling of the court, and the change in circumstances. If you are recently divorced, check these documents.

You may have credit cards, debit cards, or other charge cards that have rewards programs associated with them.  These valuable rewards, points, miles, credits, etc., may have a limited period of transferability after divorce, or may not be transferable at all.  The same holds true for many frequent flyer and frequent guest programs, so you should discuss with your divorce attorney all of the programs in which you and your spouse participate, and act promptly before and after your divorce to make sure that you do not lose your interest in these valuable benefits.  Having all or some portion of them awarded to you in your marital settlement agreement or the court’s Final Judgment is often not enough to assure that you receive them, and many programs require both spouses to sign transfer documents, if transfer of these benefits is permitted at all.  Act swiftly to preserve your interest in these programs.

Though not a comprehensive list of all the things you should be reviewing as your divorce nears or has achieved its conclusion, these items are some of the more common, yet easily avoidable, pitfalls on the path to starting over and achieving a new beginning following divorce.

Ronald L. Bornstein, Esquire, is an attorney and frequent lecturer on Florida Marital and Family Law.  His practice includes contested and collaborative family law cases throughout the State of Florida, with offices in Palm Beach County.  He is a member of the Executive Council of the Family Law Section of the Florida Bar, serves on numerous Florida Bar Family Law Section Committees, and has been practicing for more than 23 years.  To learn more about him and his practice, email him at trialguy(at)aol.com.

The disintegrating marriage and resulting march to divorce of the relationship of Arnold Schwarzenegger and Maria Shriver has been well documented by the press and noted by experienced divorce lawyers in West Palm Beach and throughout Palm Beach County.

This couple has four children and are searching for privacy as they attempt to resolve their relationship.  One method of doing so would be Collaborative Divorce.  Collaborative Divorce is a confidential and private process whereby the parties and their attorneys agree to meet in a series of meetings to resolve the issues in the parties’ divorce.  The advantages of Arnold Schwarzenegger and Maria Shriver using this type of divorce resolution method include:

1.       Privacy and Confidentiality: Contracts signed by their attorneys and the parties in a Collaborative Divorce clearly indicate that this is a private process and is a confidential process.  Consequently, the press would have no access to the meetings or the paperwork generated during the process.  If Arnold and Maria engage in a litigated divorce in public court, their documents will be available for public review and all hearings would be open to the public and the press;

2.       Concerns of the Parties Can Be Heard. The collaborative process provides the parties the opportunity to vocalize their major concerns and receive acknowledgement of their concerns from the other spouse.  This does not mean that all concerns are resolved.  However, it does mean that the parties have the opportunity to express any issues of hurt, pain and regret that may be plaguing them.  Some concerns, although important to one or both spouses, are not relevant or material to resolving legal issues and often get lost in the litigation that occurs in the public courtroom;

3.       Child-centered Solutions.  Collaborative Divorce permits the parties to focus in a series of meetings upon child-centered solutions.  Both of these parents love their children dearly.  Collaborative Divorce provides them an open, creative field to fashion a solution that best meets their children’s needs in the future; and

4.       Communication Coaching. The collaborative process permits the inclusion of confidential professionals to assist the parties in resolving any issue in terms of resolving the divorce and creating their new separate lives.  Divorce coaches are mental health professionals, who provide guidance and coaching on how to speak and communicate with their spouse in a constructive manner and how to appropriately manage their emotions during the collaborative process.  Consequently, they can discuss freely and openly creative solutions to any issue that they may encounter.  The statutes and case laws of many jurisdictions create boundaries in the courtroom which stifle and prevent the creativity of the parties in formulating child-centered solutions for their family.

Whether people in Palm Beach County live in Jupiter or Wellington, they will be watching with interest how Maria Shriver and Arnold Schwarzenegger deal with their divorce.

Time will tell if this couple will act intelligently in their best interests in some type of an alternative dispute resolution such as Collaborative Divorce or whether they will air their dissolution in the public forum of an adversarial proceeding in court.  Let’s hope that they follow the footsteps of other more enlightened celebrities such as Robin Williams in selecting a collaborative result.

Charles D. Jamieson, Esquire practices Marital and Family Law in adversarial and collaborative cases in West Palm Beach, Florida.  He is Board Certified in Marital and Family Law by The Florida Bar.  Trained and experienced in Collaborative Law, Charles D. Jamieson has been an attorney for over 30 years.  To learn more about him and his divorce and family law blog, visit his website: www.cjamiesonlaw.com and visit his blog:  Palm Beach County Divorce and Family Law Blog at http://blog.cjamiesonlaw.com/

In a sense we can say that one is either divorced or is not.  When the judge’s gavel comes down and she pronounces the divorce final, that’s the moment it happens, officially.  But divorce isn’t only an “official” pronouncement.  That’s just the legal divorce.   Divorce has other dimensions as well which are not the matter of a moment when things suddenly change from one condition to another.

And these dimensions take time to unfold.  While they may be happening simultaneously, that doesn’t mean they all happen at the same pace or in some coordinated fashion.  You may be legally divorced long before you’re emotionally divorced or vice versa.  You may be financially divorced before you’re socially divorced, that is, before your friends and associates have caught on that your marital status has changed and have started treating you accordingly (i.e. leaving you out of their couples gatherings and trying to fix you up with their single friends.)

One dimension that can be pretty complex is the parental one.  Divorced parents are obviously not the same as married parents.  They need different modalities for communication and they will have different expectations of each other.  Accomplishing a workable co-parental relationship with one’s ex-spouse can be challenging when there is so much at stake and when the emotional divorce remains incomplete.

While legal, financial and parental considerations can seem complicated, I think it’s the emotional dimension that’s trickiest.  Achieving an emotional divorce can take a lot longer than you might think.  Even though the love may be long gone, if negative emotional issues remain, one might say that the emotional divorce is still incomplete.  Part of getting divorced is moving on to the next phase and many have trouble with this, especially if the divorce was not their own idea.  Even those who are willing sometimes take longer to detach, emotionally, than they expect.  Finding a new way to thrive can be difficult for some and this makes it hard to finish, finally, with the marriage.  Additionally, after years of living together, finding oneself suddenly alone demands an adjustment that isn’t necessarily easy.  Making that adjustment might be considered part of your emotional divorce.

Finally, even after all the emotional issues have been resolved, financial and parental connections will likely linger on for a while.  So, even after you’re ready to be finished with your ex, you find you can’t (and won’t) be finished for some time.  This can be distressing and occasionally oppressive but coming to terms with the reality of it can be considered part of your emotional adjustment.

We now have scientific ways to predict which couples will stay married and which will split with over 90% accuracy. It depends a lot less on the severity of the issues dividing them than upon the way they talk to each other. But it is impossible, in all but the most extreme cases of abuse, for a therapist to know whether a particular couple should separate or not.

We can tell people what we know, “If you don’t change what you are doing you are not likely to be any happier in the future than you are now and you probably won’t stay together.” We always have to add, “But, I could be wrong.” Some people value stability over happiness.Many miserable spouses tell me they’d get a divorce if it weren’t so damaging to the kids. They are worried about how kids do in divorce. We believe we know that kids are better off with an intact home. That’s the conventional wisdom. It makes intuitive sense so it’s easy to believe. But healthy, happy and fulfilled parents are better for kids than “together” parents. Some marriages are so joyless, lifeless or strife-ridden that putting them out of their misery would seem the most merciful act. Kill it before it multiplies and takes over the world!

Kids learn whatever they live with. Some of the most recent and best-controlled studies indicate that it is the conflict associated with divorce that does the damage and that the actual effects of the divorce itself can be small and transient. Of course, there are many interacting variables that determine how kids do post-divorce, age, sex, personality and economics among them.

Here are the big “ifs”. If fathers stay involved and if parents can continue to co-parent effectively, children may do better after the divorce than they did in the conflictual or devitalized family that existed before. At least then they know, this is not how marriage is done. that’s how kids do in divorce