Time to End "Scorched Earth" Divorce

Pretty amusing, no?

This isn't a real video - it's a viral video used to promote Triumph Boats.

However, this sort of behavior, while not common, is still not unheard of either.

Just today we read that a man was arrested for burning his house down, rather than sell it as part of a divorce settlement.

Net result, he's probably going to go to jail, and the wife no longer has the $160,000.00 she was supposed to get from the sale of the home.

This isn't how divorce needs to be.

The idea of a "scorched earth" policy, where you hurt yourself to inflict pain upon your former spouse or partner is pointless and stupid.

It won't make you feel better.

It will, one way or another, cost you - both financially and emotionally.

More and more in my practice I see people coming to me who understand this intrinsically.  They don't want drama and conflict - they've often had enough of that for a life time, and want peace and resolution.

They understand that life is short, and moving forward in an effective way, to get beyond the pain of a broken relationship is their goal.

As lawyers, it is incumbent upon us to understand this.

To see the sometimes ill-considered desire of our client for revenge or vindication, and to channel their efforts towards minimizing their emotional and financial loss and to allow them to move forward with their life in a healthier manner.

So.

To people suffering a relationship breakdown, I suggest:

Put the boat away.

Put down the gasoline can.

And call a lawyer or mental health professional, and work towards a healthier resolution in your relationship breakdown.

Alberta Access to Justice? Maybe Not So Much.

How important is your child's happiness..?

So.

I'm in Court of Queen's Bench family and divorce chambers yesterday in Lethbridge.

And ahead of my matter is an application pitting a father acting on his own with the mother, who is represented by counsel.

The parents had been sharing custody of their daughter, who is 10 years old.

Both parents live in a small community, both live within a block or two of her school, and both appear to be very loving and capable parents.

But.

Here's the problem.

Dad has had his shifts change, and so, he has to leave for work at 6:30am, and doesn't get home until 5:00pm.  As a result, mother applies to obtain primary care of the child, who was being left alone to get up and go to school, and was left at home alone after school until dad got home.

And here's the stupid thing.  The father earns $87,000.00 per year.

And, yet, he shows up in court on his own, without a responding affidavit to the mothers suggestion that the child is being improperly attended to - and is asking the Judge for yet another adjournment (after being served with the mother's application and affidavit in mid-July, two months ago).

Long story short, the father lost shared custody of his daughter.  And, likely, will never regain it.

This is Alberta's proud effort to assure "access to justice".  Encouraging people to perform legal surgery on themselves.

This guy could easily have afforded the $2,000 or so to have a very qualified lawyer in court assisting him.

Better yet, the lawyer acting for the mother is someone I know who is very amenable to the collaborative practice approach, and I am very certain, were I counsel, we would have had these parents employ the assistance of a child expert and some parenting coaches to help them craft an arrangement that would have allowed the father to retain an integral position in his child's life.

Instead, yesterday, he became another weekend dad.

And here's something that's sort of interesting, in a tragic sort of way.

The Alberta government has fallen all over itself to dramatically change our Rules of Court, our Court Forms, our processes and procedures, to make it easier (to encourage) people to go to Court on their own without counsel.

The result has been an increase in litigation, which means an increase in cost to the tax-payer, which means an increase in unhappy people - like the dad in the case above - who learn the hard way about the shortcomings of the judicial system.

And - likely, this dad is going to be hurt and angry, and his relationship with the child's mother will be worse today than it was yesterday, which increases the chance of discord between them, which increases the chances of this little girl growing up dysfunctional - at yet more cost to the tax-payer to assist in children having children, or children not meeting their potential as they become adults.

A very real human cost and a financial cost to the tax-payer.

Yet.

At the same time.

When the Progressive Conservative Party held a policy conference a couple years ago, seeking input from it's members as to policies they would like the government to pursue, there was a proposal accepted by a majority vote of the members present to ask the government to support and assist in the promotion of Collaborative Law.  A "grassroots" effort, if you will.

Reducing the human cost of divorce battles.

Reducing the cost to the tax-payer of attending to these fights, and reducing the collateral damage, the "fall out" from those battles - including increased costs to our criminal justice system, increased costs to our social service organizations, and increased costs of continued future litigation.

And Progressive Conservative leadership hopeful Allison Redford spoke to this writer on two occasions, suggesting her support fore the collaborative process.

But - at the end of the day - the Alberta government decided to go the other way, and has provided virtually no support or promotion of collaborative practice.

They decided it was better to encourage litigation, and to make it easier for people to go to Court and perform legal surgery on themselves and their families.

How's that working out?

Well, not so well for at least one father in court yesterday.

Divorce - One Size Fits All?

"Welcome to the Divorce Factory"

Are you an individual?

Is your life experience unique to YOU?

Or, when you find yourself in difficulty, do you feel like the answer to your problem should come to you like a ball of gum from a vending machine - put your nickle in, and out pops your solution.

Welcome to the judicial system, dealing with your divorce.

If you want to understand my point, take a look, for example, at the mandated Form for a Statement of Claim for Divorce in Alberta.

It's a PDF online form, where you fill in the blanks, and then literally "check off" the boxes to tell the Court what you want them to do.

It's the epitome of "one size fits all".

Is that how your divorce should be treated?

Is your marriage, your family, your business the same as everyone else's?

Are the circumstances in YOUR home, in Lethbridge, or Calgary, or Grande Prairie, or Kalamazoo for that matter, the same as everywhere else?

When you find yourself in the midst of a divorce -  one of the most stressful and uncertain periods of your adult life - do you want to engage a system where your problems, and your hopes are treated like they are coming into Court on an assembly line?

Well, welcome to the litigation system.

Ignoring the costs and delays inherent in litigation, the judicial system is truly like a big factory assembly line, except that on that conveyor belt are your children, your bank accounts, your business, and your sense of self.

And like any assembly line, the success of the process is premised on uniformity of product.

Input "A" must lead to output "B".

Now - lawyers and judges do their best to try and deal with the differences between the parties, however, starting from the top down, our Courts have, over the last two or three decades, tried to accomplish radical change in the family law system.

And that means, well, creating "uniformity".

Do you doubt me?

Take a look at the Child Support Guidelines, the Spousal Support Guidelines, and the Matrimonial Property Act.

Input income and assets - "A", and the courts are asked to then create outputs by way of Child Support "B", Spousal Support "C", and Property Division "D".

And while there are circumstances that the court can use to differentiate between outcomes (except in child support), the reality is that Judges are human beings.  They see people coming before them every day, day in and day out, and all of those people at a certain point begin to blur into a large faceless blob.  And when you combine that with massive pressure to produce "desired" outcomes, well, the results in very little ability for the divorce factory to see you as unique.

And so, very often, it is patently obvious that as sincerely as Judge's may attempt to exercise their duties, the tried and true ground (precedent if you will) becomes their touchstone.

One. Size. Fits. All.

Is that for you?

If not, you might consider Collaborative Divorce.

No judges.  And while the law is relevant and will be explained to you, if you and your spouse or partner would like to consider other ways of addressing YOUR issues, "outside of the box" if you will, well, that option can be put on the table.

Maybe you would like to pay your wife much higher support than a court would order after your separation to help her get into a good University to complete that degree she put on hold to have your children.

Maybe having your children remain in their home is more important to you than increasing your income stream through spousal support - so you waive or limit your support claims in exchange for keeping your husband's share of the house.

Maybe you would like to make some of your property settlement tax deductible, so you negotiate a higher spousal support order, in exchange for a greater share of property.

Maybe you are a farmer - and instead of selling the land you inherited from your father, who inherited it from your grandfather - you agree to transfer two quarter sections of land to your wife, and then enter into a long-term lease.  And then maybe both of you agree to ultimately sell the whole of the farm to your children.

All of these options, and more, can be discussed and, possibly, agreed to in a Collaborative Divorce.

In a Courtroom?

No so much.

More like, "Do you want fries with that?"

How to Start a Collaborative Divorce

There is a very nice article today by Julie Garrison in "Dadsdivorce.com " titled How To Begin The Collaborative Divorce Process.

While the website is aimed at fathers going through divorce, it is equally applicable to any party, and is a very nice, easy to digest description of how to engage your spouse or partner to work out differences arising in a family breakdown using the collabortive process.

Getting Divorced? Put your Children's Welfare First

Future Binge-Drinkers?

Would you like your child to be a binge drinker?

Would you like them to grow up with mental illness?

Would you like your children to grow up with an increased likelihood of relationship difficulties.. perhaps similar to those you are currently encountering with your spouse or partner.

If so - then be sure to allow your hurt, your pain, and your anger to turn your divorce into a lengthy, ongoing battle.

In today's Huffington Post, Dr. Eva M. Selhub exhorts parents to "Be Mindful of the Children" in divorce.

As Dr. Selhub points out:

While the parents in the divorce grapple with feelings of anger, worry, fear and confusion, the children usually experience even more fear and confusion. Often parents turn to their children for comfort, sometimes use them as pawns in the divorce war, and sometimes are blinded by their anger and fear to the impact their actions may have on the children in that moment or in the future. In the meantime, the children, unlike the adults, not having the capacity to understand what is happening, become increasingly confused and unsure of what their involvement needs to be to either bring the parents together, to "make things better" or to side with one side or the other.


Studies show that children whose parents divorce or separate before they are 5 are more likely to develop binge drinking behaviors by the time they reach their teen years versus parents who stay together or show high levels of parental warmth. The problems are not limited to drinking behaviors. Children can become more vulnerable to both physical and mental illness at the time of divorce and may develop problems with self-esteem, other behavioral problems or issues at school, and difficulties in forming healthy relationships.

However - experience shows that to the extent that parents can avoid using their children as supports in the divorce, to the extent that parents can set aside their personal differences in encouraging the children to have a healthy relationship with both parents, to the extent that parents can, well, be the "ADULTS" in the home, providing their children with warmth, love and security - that can mitigate many of the negative impacts that Divorce may have on their children.

So.

If you are very angry or hurt and feel the urge to demonstrate that, directly and indirectly to your children - by all means go ahead and do that, provided that your goal is to have your children grow up to be scarred and damaged.

If not - you might consider being mindful of your children, and making all effort possible to avoid allowing your divorce to become a lengthy war.

Lawyer: The Divorce Caddy

Are you helping your client line up THEIR best option.. or YOURS?

My new job (well, part-time job) is a collaborative divorce blogger from Lethbridge, Alberta.

And part of that job entails getting up, having a coffee (or today, I'm having tea) and reading my Google Alerts to see what other people are saying about collaborative law.

And this morning I came across a somewhat critical blog by Gregory R. Nugent, a Washington D.C., and Maryland area family and divorce lawyer.

His commentary is relatively respectful of the collaborative process, but, overall, he suggests that it is a process which is perhaps being (to use his word) "foisted" upon clients who are inappropriate for the process, and he further suggests that the process is open for abuse by those who refuse to honestly disclose their financial affairs.

My response?

Firstly, no process, litigation or collaboration, should be "foisted" upon any client.  At our best, as divorce lawyers, when guiding a client to consider their process alternatives, we should consider ourselves "caddies" on a golf course. 

To begin with, you don't pull out your driver on the green, and you don't use your putter off of the tee box.  Not every situation is amenable to collaborative work.  Some cases don't require it because they are simple and straightforward.  A short put in other words.  Or maybe a small pitching wedge - perhaps brief mediation.  Other cases present themselves as long drive.  Where possibly the client feels they require the "driver" of the litigation process.

However - in the legal system, there are hazards all around us.  And if the fairway (no pun intended) is narrow, you may still be better off leaving the driver in your bag, if an errant effort may put you in a much more difficult situation than a more prudent, controlled effort. 

But - regardless - the bottom line is that we have many choices to present our clients, from "kitchen table" resolution, to mediation, to collaboration, to arbitration, to litigation.  And that choice, at the end of the day, is the client's.  Not the lawyers.  Our job is to equip them with the right tools, make suggestions as to why they may or may not want to use one process or the other, and then respect them enough to allow them latitude to choose what is best for them.

No foisting.

Secondly - respecting disclosure concerns - which are always a source of criticism for those who don't practice collaborative law (and Gregory Nugent, fairly, confesses he doesn't) I would offer these two comments.

To begin with - what makes litigators (and I continue to be a divorce litigator) consider that they confidently can assert they have received full disclosure?  If there is a shoe-box of cash under the bed, and the other party is willing to lie under oath, you will never know about that box of cash.  A long time ago, I concluded a litigation, after trial, and several years after my client (former client) disclosed that he, in fact, had a large herd of cattle in the U.S. that he had never disclosed and in fact, boldly, lied about.

So much for perfection in litigation.

But - to be fair - and I've had this argument at IACP conferences and on the Collaborative Listserv, we do not cease our discovery skills in collaborative process.  We do it kinder and always with respect - but that same curiosity that drives the discovery process should continue in collaboration.  You need to obtain full and adequate disclosure.  You need to ask questions to turn over the rocks (or the mattresses as the case may be) - and assure yourself that there appears to be full and complete disclosure.   The Alberta Court of Appeal in Webb v. Burkett affirms that obligation - as it should.

And if you aren't getting full disclosure, and if there is reticence and obfuscation - well, it may well be that you need to withdraw from the process to assure your client's interests are served.  However - my experience is those cases are, in fact, few and far between.  That when clients and their lawyers commit to being open and honest - in most cases, they are.

So - is the Collaborative Process perfect?  Nope.  Is it appropriate for each and every divorce?  Nope.

But while we can write an article, or perhaps a paper on the difficulties the collaborative process presents - and it is always evolving to the benefit of our clients - we can write volumes about the shortcomings of litigation as a perfect process choice.

Ask people who have gone through litigation.  "Did you have fun?"  "Was it quick?"  "Was the outcome perfect?"  "Was it cheap?"  "Did you feel in control?"  "Did it make it easier to parent with your former spouse?"  "Did competing experts work well?"  "Would you recommend it to your friends?"

Don't get me wrong.

I enjoy litigation.  I get paid good money to enter the gladiators arena to do battle in the courtroom.  And the adrenalin rush of a good cross-examination is truly a heady experience.  And there is some truth to that great speech by Vince Lombardi, which ends:

"...I firmly believe that any man's finest hour, the greatest fulfillment of all that he holds dear, is that moment when he has worked his heart out in a good cause and lies exhausted on the field of battle — victorious."

It's truly a heady experience to succeed at trial.

But, sadly, my sense is that it is an experience which provides a much greater benefit to us, as lawyers, than it typically does for our clients. 

So.

Go out and be a good caddy today.

"Family is Forever" - A Great Idea in Wisconsin, Could be a Great Idea in Alberta

Collaborative Law in the news today.

The Milwaukee Wisconsin Journal Sentinel reports this past weekend that the Governor of Wisconsin and the Mayor of Milwaukee have recognized the reality that a divorce doesn't mean the end of a family - and that the WAY you get divorced can impact greatly on your children and yourselves.

As reported in the Journal Sentinel last Thursday:

Both Gov. Scott Walker and Milwaukee Mayor Tom Barrett have proclaimed next week "Family is Forever - Children and Divorce Awareness Week" in Wisconsin and Milwaukee, respectively. These proclamations do not speak to the rightness or wrongness of divorce. As these proclamations from two leaders suggest, this is not a political issue.

These proclamations do challenge us all to consider the impact of divorce upon children. And they do support the use of the collaborative practice in family law and for divorce in particular.

And the article goes on to support Collaborative Law as a process to help maintain a healthy family after divorce:

These proclamations do challenge us all to consider the impact of divorce upon children. And they do support the use of the collaborative practice in family law and for divorce in particular.

The guiding principle in collaborative practice is that despite divorce, a family can be forever. The collaborative divorce process has a simple goal: resolve family issues using professionals trained to do so without the destructive aspects of litigation.

The use of a collaborative team addresses the emotional aspects that emerge in such intimate conflicts and permits the development of a parenting plan by coaches trained in this area. It allows a financial "neutral" to prepare a detailed financial plan based on reality, not a "winner/loser" mind-set reinforced by the combative legal process. This allows the attorney to focus on the law rather than on other family issues for which he or she is not necessarily trained.

Well done Wisconsin.

Now, consider for a moment.

Governor Scott Walker is a conservative republican, in fact, he's recently been on the hot seat for his position on reducing public employees' ability to strike.

But the importance of maintaining civility and "family" transcends political boundaries.

At least in Wisconsin.

In Alberta - well, maybe not too much.  At least for now.  While current leadership hopeful Allison Redford has made overtures suggesting she is supportive of the process, to this point our Conservative government has chosen to ignore the promise of Collaborative law.  And this is notwithstanding a policy proposal from the members of the PC Party passed at policy conference asking the government to do provide such support.

So.

If you think that "family is forever", if you think that the Alberta government should encourage Albertans to work out divorce issues collaboratively, tell your MLA.  Ask them why our former Attorney General Allison Redford refuses to support collaborative law to resolve divorces.

And then - if you, or someone you know, is in the midst of a family breakdown - maybe mention Collaborative Law to them.

It might just save a family.

Because the "family" doesn't end when the marriage is over.

Who needs Collaborative Divorce?

Who needs Collaborative Divorce in Alberta?

Easy answer.

People who are unable to easily navigate the minefields of emotions and complexities that may arise when they are facing a divorce.

People who wish to protect their children from the fallout that can accompany divorce.

People who wish to minimize the harm to their finances or businesses that may result from a runaway divorce train.

People who value the skills of lawyers, mental health professionals, and financial professionals who can offer their skills to help guide them to their optimal outcome in a divorce.

It is easy to say, "I want a fair way to get divorced."

But it can be very difficult to find your way without the assistance of skilled and trained professionals who are committed to help you make your way through divorce
without going to court.

If you are a person, or you know a person who might benefit from this kind of assistance, contact a collaborative professional through:

http://www.collaborativepractice.ca