Friday, March 11, 2011

Collaborative Law: A Senior's Approach to Divorce

70 is the new 50! In the 21st century we are now facing the stark reality that more people of retirement age are getting divorced. This poses a set of challenges that previous generations rarely faced. Today, we have blended marriages, multiple sets of children and grandchildren, friends from the current marriage and former marriage, and lifestyle issues. How can a divorcing couple maintain dignity and save the relationships from devastation? One possible solution is a Collaborative Divorce.

Collaborative Law is an innovative approach to family law which is sweeping the country. It is an approach to family law matters in which the parties and their attorneys commit to each other in writing that the case will be settled completely out of court. If the case does not settle, the parties must retain other attorneys to litigate the matter.

The typically long, emotionally draining, and often economically disastrous litigation process ends up with an agreement or judicial decision with which neither party is particularly happy. Enlightened Collaborative lawyers have the answer to how a marriage may end without the potential emotional and financial devastation often associated with litigation.

Although the vast majority of family law cases do settle out of court, the significant difference is the manner in which a Collaborative family law matter is settled. It is often particularly important to older adults that, even though they are dissolving a marriage, they remain as amicable as possible. As parties to a divorce grow older, the parties often have relationships, not only with long-time friends, and children of their marriage, but also with their grandchildren. Collaborative law is geared only toward a peaceful, “out of court” resolution and may assist the parties in maintaining their important relationships even though the marriage relationship is dissolved. Collaborative attorneys are specifically trained in collaborative negotiation skills. The process involves informal discussions and conferences attended by both spouses and their attorneys. Additionally, psychological professionals are often employed to “coach” the clients toward a shared, peaceful resolution that is geared toward the future well-being of the parties and the family. The psychological professionals may assist the parties in learning constructive, rather than destructive, forms of communication. This communication education can be especially important when children and grandchildren are involved.

Divorce, at any age, can be difficult financially. However, when the divorce occurs after age 60, it can be financially devastating. Lifestyle changes are imminent. Who gets the social memberships? How are adult children going to respond? Will I get to see the grandkids as often? Who will help if I become ill or incapacitated? Who will make decisions according to my powers-of-attorney?
Other questions which will need answers are:

• Spousal Maintenance (alimony): Will I get help?
• Property Division: Must we sell the house?
• Health Care: Medicare, COBRA, Long Term Care
• Pensions/IRAs/etc.: How are they divided? How does a QDRO (Qualified Domestic Relations Order) work?
• Social Security: Can I get more than my small amount?
• Debt: Who is responsible and how will this effect my credit rating?
• Income Taxes: What are the tax traps in a divorce?
• Other Stuff: What about my will and powers-of-attorney?


These and many more questions should be answered in the divorce process, thus, the need for an experienced Family Law Attorney and a Certified Divorce Financial Analyst becomes apparent. They can answer your questions, and help you make the right decisions for yourself and your family, and potentially save you many years of heartbreak and financial devastation.

In Texas, collaborative cases are not scheduled on the court dockets in the same manner a traditional case is docketed. The only time a party and attorney go to court in a collaborative case is to enter the agreement and ask the Court to grant the divorce. Thus, while the case is pending, parties to a collaborative divorce do not bear the financial or emotional burden of preparation for hearings or trials, or numerous court appearances.

About the authors:

Carol Griffin is an attorney practicing Family Law in Houston, Texas. She has been licensed 19 years and has handled Collaborative cases for about 8 years. You can contact Carol at cgriffin@pbgfamilylaw.com or 713-461-5288.

Dirk Cummins is a practicing Certified Divorce Financial Analyst (CDFA), a Chartered Financial Consultant (ChFC), and a Certified Senior Advisor (CSA) in Houston, Texas. He entered the financial services industry in 1981. You can conctact Dirk at dcummins@dirkcummins.com or 713-609-9805.