FYI - New Article in Nevada that talks about Collaborative Law.
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This article was printed from the News&features
section of the Reno News and Review originally published January 25,
2007.
This article may be read online at:
http://www.newsreview.com/reno/Content?oid=271501
Copyright ©2007 Chico Community Publishing, Inc.
Printed on 2007-01-31 09:56:03.
Divorce with love
A how-to guide for couples (and parents) who want to separate without
hate
By D. Brian Burghart
Photo Illustration by Andrew Nilsen
Stop the hand-wringing.
You've been through the screaming arguments and tearful
reconciliations. You've played the blame game and earned the sweat equity.
Maybe you've just grown apart, gone down different paths. Perhaps there was
a life-changing experience that altered you or your partner's priorities.
Could be you had an affair; could be your partner did.
None of that matters. This is Nevada, right? We're a no-fault state,
which means divorcing partners are going to split everything down the
middle. There's no palimony here, so domestic partnership breakups aren't
the issue--unless there are children involved. Either way, your relationship
is broken, and only you can decide whether it's worth the time, energy and
money to repair it.
It's crunch time.
Are you going to split with your spouse or not?
The fact is, since half of first marriages end in divorce and an even
higher percentage of subsequent marriages come to a bad end, the odds are
pretty good that, sometime, when you reach the point of considering divorce
as an option, you're going to take it. And if you don't, your spouse will.
Divorce is probably going to suck--from financial, spiritual and
emotional standpoints. The decision to split is only the first decision you
are going to make in coming months. Often--usually--divorce is a horror
show. Who knows your emotional weak points better than someone you once
trusted with your innermost thoughts? And who is more likely to push those
buttons quicker than someone you once loved but wih whom you can now hardly
sit on the same couch?
The thing is, it doesn't have to be this way.
Gary Silverman has a checklist of precautions for choosing a
divorce lawyer.
Photo By David Robert
Split decision
Making the decision to divorce should not be made on the spur of the
moment, psychologists say. While it may seem easiest to walk out during the
anger of a heated argument, this is a decision that must be made with the
cold sobriety of a judge.
Kristen Davis-Coelho, Ph.D., a Reno psychologist at Renown Behavioral
Health, said people considering divorce must take a long view of the
ramifications of splitting up, and the pros and cons of staying together or
splitting up must be considered.
"In our culture, we get into this sense of immediate pain or immediate
unhappiness, and we have a hard time looking backwards and forwards
long-term," she said.
Imagine that: a demand for instant gratification in an institution
that supposedly lasts a lifetime. She recommends that people take an honest
look back at the good days and the bad days of the past and then attempt to
look forward: What are the long- and short-term expectations for the
relationship?
"That helps prevent people from making impulsive decisions based on
what's happening in this moment or these months," she said. "If there are
children involved, a couple must ask themselves the impacts on the kids--the
impact of staying together versus the impact of separating or divorcing."
Because, sometimes, staying together for the kids' sake--as in cases
of domestic violence--is the absolute worst thing that you can do for the
kids.
Breaking up is hard to do
Get with the 21st century. You have choices. Society has long
recognized that divorce can hurt everyone involved. And it doesn't just hurt
emotionally, it also hurts financially. It can be an expensive proposition:
one mortgage becoming two, one household becoming two, two lawyers, two
therapists, two rebound relationships (just kidding about that one). It's no
wonder that we've begun to try to find ways to make divorce less expensive.
The key to frugality is to keep lawyers out of the picture as much as
possible.
One attorney, who for obvious reasons did not wish to be identified in
this story, said a reality check is the first order of the day.
"In Nevada, whether you are a man or a woman, generally speaking, half
of the debts and half of the assets are going to be your responsibility," he
said. "Any money that you and your soon-to-be-ex spouse pay to an attorney
is going to be deducted from your share of the assets. That's money that you
won't have."
The idea is that once the decision to divorce is made, partners
approach the separation with all the emotion of a business transaction.
Cheryl Field-Lang counsels patience because a divorce can drag
out.
Photo By David Robert
"Most people, when they go into get a divorce, are nuts. They want
vindication. Their idea of what they can get has been distorted to a
delusional level by conversations with friends who always talk about how
'their divorced girlfriend got 125 percent of the assets plus alimony.'
Completely absurd expectations. They're not satisfied until their ex is cut
up into little pieces and the little pieces set on fire and tossed into the
sagebrush."
By far, the smartest thing to do is to have a level-headed
conversation with your partner. Discuss the assets, the debts and the
children, including such things as custody, insurance, future education
costs--everything you should have planned for when you were in the first
bloom of love and didn't.
"And if you can do that, then you go down to the Washoe County Court
System, get a petition or a joint petition for a divorce, and fill it out.,"
he said. "And they have people down there who will help you. You will be a
hell of a lot happier and a fair amount more affluent than you would have
been if you ever went to a divorce attorney."
In Washoe County, forms can be downloaded at
www.washoecourts.com/index.cfm?page=selfhelp_forms.
The secret to dividing property is fairness: First you split the debts
down the middle, then you divvy up the cash assets; then you take the
property assets you can't agree upon. You assign them cash value. And then
each person gets an alternating choice. Like "OK, you can have $5,000, what
do you want?" Then the other person has the next $5,000 worth of choice.
"If you do it that way, nobody's happy, but it has the feature of
fairness," he said.
Send lawyers, guns and money
OK, please, leave the guns at home. And stay off parking garages.
Does the idea of a rational conversation with the person who destroyed
your hopes and dreams seem a little ... Pollyannaish? There's always the
court system. That's probably your most expensive and emotionally damaging
choice, but it certainly must be discussed in this context.
Gary Silverman of Silverman, Decaria, & Kattelman is the go-to divorce
attorney in Reno for complicated cases. If you've got a large estate or
intertwined business interests or a psycho for an ex, he may be your man.
His advice when checking out lawyers: First, ask the Nevada Bar
Association if your potential attorney has disciplinary matters on the
record. Second, ask the lawyer about ethical complaints and about his or her
reputation in the community. Third, ask the lawyer about their experience in
cases similar to yours. Fourth, ask about the lawyer's policy on
communication--Do you get copies of all pleadings? Can the lawyer
communicate with the frequency you desire? Fifth, decide if you and the
lawyer have sufficient rapport to work together. Sixth, if you decide to go
with a particular attorney, do not leave the office without a written fee
agreement; very few attorneys will agree to a flat rate for an uncontested
divorce, so it's usually an agreement on an hourly rate, from $200-$550 an
hour.
Kimberly Surratt says an important goal is to keep a family
functioning even though the parents are going through divorce proceedings.
Photo By David Robert
Silverman said after 25 years of litigating in family law, his most
important piece of advice for those getting divorced is to remember that the
judge does not care about your broken heart or crushed ego.
"Remember that Nevada is a no-fault state," he said. "Emotions are not
taken into account, and people [should] put their emotions aside and
recognize that this is now a business transaction."
Games people play
Emotions sometimes are difficult to put aside. There are many areas
where soon-to-be exes will have difficulties. After all, if the couple had
perfect communication and 100 percent agreement--well, few people get
divorced just because their lives are too simple.
"Most people, when they're going to have a contested issue, it's
generally regarding property or their children," said Cheryl Field-Lang, a
Reno attorney who has specialized in family law and criminal defense law
since February 1993. "The law and the courts say we're supposed to
determine, when deciding the custody of children, what is in the best
interests of the children. Sometimes that means being with mom, and
sometimes that means being with dad. Sometimes that means being with each
parent on an equal basis. But the law said it's better to have two parents
than it is to have just one. And sometimes that also is not a workable or
viable solution, but if you've got two parents who are interested in their
children, you hope that at some point in time, they're going to be able to
work together."
The wisdom of Solomon is irrelevant in a courtroom--besides, they
hardly ever let people cut children in half anymore. Getting along is the
key to moving through the divorce quicker and returning to stability.
Field-Lang said not to plan on getting your divorce settled and
getting on with your life anytime soon, especially if hostility and lawyers
are involved.
Divorce between antagonists can take a long time to resolve--depending
on animosity, depending on the court's calendar, depending on your
attorney's calendar and the opposing counsel's calendar. The case management
conferences are supposed to be set and heard within 30 days of filing.
That's your first time before the judge to try and get some preliminary
orders, such as who's going to have temporary custody, how visitation or
custody is going to be set up, who's going to live in the house, who's going
to pay for what. Then a settlement conference is set--normally at least a
couple months later. If you don't settle your case in your settlement
conference, then your trial date gets set, and that could be several more
months out. In the meantime, you're paying your attorney by the hour.
"If you're getting along, and you're able to resolve your case, then
it can be done much more quickly because you don't have to wait for a
hearing," said Field-Lang.
"Everything can be done on paper and then submitted to the court. So
all your paperwork is submitted, it's signed, and you get divorced that way
without appearing in court."
And guess what? That long litigation trail is fully accessible by any
member of the public or the press. If you think Mrs. Grundy has spent too
much time peering through your almost-closed draperies, wait until she gets
a look at your 401(k). Your privacy has gone the way of first love's blush.
Photo Illustration by Andrew Nilsen
But it doesn't have to be that way.
Why can't we be friends?
Kimberly Surratt is an attorney who works out of the Jenkins Law
Office in Reno. She also chairs the Reno practice group of the Collaborative
Professionals of Nevada. Collaborative divorces are a wholly new idea in
Nevada, and the whole premise is based on resolving disputes with respect.
It's kind of similar to mediation in which the couple has one person to
coach them through divorce's rough waters, But instead of having one person,
there's a whole team of experts working in the best interests of the couple.
Basically, the couple signs a contract that said they will not take
their dispute to court. A group, not just attorneys, but also financial
professionals and mental health professionals and any other experts who may
be necessary to the process work together as a team to help a couple
divorce. The contract also requires open financial disclosure.
Having a team on the "project" may speed the process, allow the couple
to split amicably and may even cost less than an antagonistic divorce with
attorneys, although it could also turn out to be much more expensive. In a
typical divorce, the attorney ends up giving financial advice, even though
he or she is probably not an accountant. The attorney probably also ends up
giving emotional counseling, despite the fact that few attorneys are
psychiatrists or psychologists. The list of duties performed by attorneys in
divorce goes on and on--and the attorney is likely the least qualified, but
most expensive, person doing the job--except for the actual legal stuff.
The contract is not without teeth. If one of the parties--who comes up
with these words?--breaks the contract, all the professionals involved in
the collaborative efforts are conflicted out. So the couple must start over.
Needless to say, there's a financial incentive to play fair.
"The No. 1 benefit of collaborative is non-economic," said Surratt.
"The goal of collaborative is to keep people civil, to preserve
relationships--meaning, you've got two parents with a 3-year-old child. They
are going to have to co-parent that child for the next 15 years. Our goal is
to get them to communicate, to teach them a new way to talk with each
other--even though they're divorced, they're still both parents. We want to
preserve the relationships, making sure they're still calm and relatively
working well together by the end of it."
Sound too good to be true? It's a divorce method that's got adherents
all over the world. Nevada, being the old-school state it is, has been slow
to get on the bandwagon, and Surratt has only collaborated on four divorces
using this procedure.
Another benefit to collaborative is couples are not exposing their
lives to the world. It's all confidential because there's no court filing
until there's a settlement agreement. Then a couple is just asking for a
decree, and they're not having a big, long drawn-out battle in the court
records where any reporter can access it.
All you need is love
Say what you will about the childishness of some couples who are
divorcing, in cases where there are children, it's the children who will
suffer the most serious impacts of divorce. Again, it doesn't have to be
this way. If the parents work together to instill respect for each
other--even when they can't have a joint checking account--the children will
probably come through it OK.
Terry Lowey, a Reno psychologist with a master's degree in marriage
and family therapy, said the best way for even the most rancorous couple to
divorce is with ... love.
"Once a couple has made the decision to divorce, it's a good idea to
talk to the children together," said Lowey. "Don't badmouth the other
parent. Assure the kids that this isn't about them, it's about the grownups,
and both parents love the children very much, and they will continue to be
mommy and daddy and work together as a team in the children's best
interests. I believe that in this situation, as in any situation, the most
important thing is not to harbor bitterness and resentment. You can approach
anything, even the most distressing situation, with love and with a sense of
reconciliation."
Lowey said children don't need divorcing parents to buy them anything
their hearts desire or to slack on the parental discipline. Really, children
need parents to continue being parents--even if they no longer live
together.
"When kids see parents treat each other with respect and kindness,
that gives kids more sense of security than anything," she said. "Parents
don't realize how much how they treat each other impacts children and their
sense of well-being in the world. My belief is you can do that, even if you
are getting a divorce."
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