Monthly Archives: May 2012

Good divorce vs. Bad divorce

To understand the differences between good divorce and bad divorce requires a distinction between the two things: the fact of the divorce and the way of the divorce. The first refers to the losses that usually accompany the end of a marriage. There are inevitable dislocations as some or all of the family have to adapt to new homes, changed economic circumstances, new parent-child arrangements and all the feelings that come with major change, feelings of loss, anger, humiliation, failure, insecurity and fear for the future of oneself and one’s children. At its best, divorce is a painful and stressful experience for all whether done well or poorly. The second factor is the way or the how of divorce. This refers to the manner in which the couple gets divorced. Do they negotiate a settlement of child-related and financial issues that both regard as fair or is it a war of attrition to see who can bludgeon the other into submission? Do they retain the capacity for civil and cooperative communication around the children or do they forfeit this to bitterness and recrimination? Do they retain control over the negotiation process or do they give that control up to contending lawyers and the judicial system?

The fact that some couples have ugly divorces and others have decent divorces is not explained by chance alone. We know that there are steps that couples can take that dramatically reduce the level of conflict in divorce. And we know that reducing that level of conflict also reduces the impact of the divorce on both the couple and their children. For the past twenty years mental health counselors have been encouraging divorcing clients to use mediation rather than adversarial divorce as a way to negotiate settlement agreements. We know that most couples who mediate do so successfully. About 80% of those who try, succeed. We also know that those couples conclude their agreements in much less time, at far lower cost and have a much higher rate of compliance with agreements than do couples who settle their divorces through traditional methods.

In mediation the focus is on keeping the divorcing couple in control of the process. A mediator helps the couple to have discussions and negotiations that they are unable to have on their own because of the deteriorated state of their relationship. Issues related to parenting, support and division of property are all explored and resolved by the couple facilitated by the mediator. The role of lawyers is changed, in this system, from surrogates to advisors and consultants.

Contact me anytime you have any questions about North Carolina divorce law, custody issues, or separation and settlement agreements.  You are under no obligation and it would be my pleasure to answer your questions.

Sam Margulies
(336) 669-3141
sam@sammargulies.com

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The Do-It-Yourself Divorce

I have long been convinced that with a few scalpels and clamps I could remove my own appendix in a pinch. But that conviction does not mean that it would be a good idea to attempt nor does it mean I would survive the operation. And so it goes with many of life’s tasks that don’t seem so difficult that we couldn’t do it ourselves.  I am frequently asked this about divorce.

“We don’t have much money and we don’t have kids and we’re in agreement on everything. Why not just download the forms from the web. Do it ourselves and save the bundle that the lawyers will charge us?”

With that frequently asked question in mind I thought I would outline under what conditions couples should or should not try it themselves.

The simplest divorce is one in which there has been a short marriage with no significant property accumulated during the marriage, no children and two employed and self sufficient spouses. No children means no parenting or child support issues. Two economically self-sufficient spouses means no alimony issue. And little or no property means no need to detail how the property is to be divided. Under these conditions there is really no need for a written settlement agreement. The couple separates and after the statutory required waiting period files for divorce using forms and directions easily available on the Internet. In some states you don’t even need to go to court; you just do it by mail. In other states a court appearance is required but the court personnel will usually talk you through the pro forma hearing.  Feel free to contact me personally for specifics on North Carolina divorce law.

Recognize that there are two parts of a divorce. The first part requires that you agree on the issues of children and custody, financial support and division of property. The settlement agreement is an enforceable contract that permanently resolves all the child related and economic issues. If you need a settlement agreement and you are not very experienced in drafting contracts you probably need a little help from a lawyer, mediator or at least a knowledgeable paralegal. Once you have a drafted settlement agreement it is relatively easy to do your own paper work and get yourselves divorced. But even in a seeming simple divorce there may be issues that if not written down may result in anger and economic loss.

Consider Pam and Tom who have been married two years and have no children. Tom is self-employed as a contractor and Pam is an assistant professor at a local college. At first glance the couple felt they had nothing to negotiate. They had always kept separate bank accounts and just assumed that each would keep everything in his or her name. This is fine, but they have to recognize that they may each have rights and needs that are provided by law.

For example, during the marriage Pam has increased her retirement account by $10,000. Tom is entitled to a share of it. More complicated yet, during the marriage Tom’s business has doubled, he has earned a lot of money and used it to buy a lot of equipment. According to law, Pam is entitled to a share of the increase in value of the business including both hard assets like the bulldozer and the accounts receivable but also the goodwill value that has increased during the marriage. Finally, Tom, who has high blood pressure, needs to stay on Pam’s health insurance plan for the eighteen months their state requires before it will grant a divorce.

If Tom and Pam just assume that each keeps his/her own assets all will be well unless one of them has second thoughts later. After the divorce when Pam finds out that Tom has been dating her best friend she may decide that she acted too hastily in not pursuing Tom’s business assets. In many states she would have no trouble reopening the case because there was never a legal finding with respect to these assets. And when, out of anger, she cancels Tom’s medical insurance without telling him and he has an emergency appendectomy two weeks after the coverage disappears, there is going to be trouble and both may wish they had attended to these issues in a proper document.

What Pam and Tom should have done was to obtain a few hours of professional help to understand their choices. Property distribution law is very complicated. You may have all sorts of claims on each other’s property. But even if you both are clear and adamant that each should keep his /her own assets you need a simple contact in which your waiver of these claims is clearly stated in writing and signed before a notary public. It will also help if the contract states that you are each aware of your claims to the other’s property and that you are knowingly waiving your claims. While you are at it a mutual waiver of alimony will preempt a subsequent claim if one of you gets laid off or a business collapses.

A written separation agreement is necessary if there are any economic issues or any potential economic issues. And if your situation is more complex than Pam and Tom then you certainly need a separation agreement and it is very unlikely that you know enough about divorce to do it yourselves.

This does not mean that you are doomed to the greedy clutches of adversary lawyers eager to make a fight. There are plenty of mediators around who can help you through at minimal cost and there are some decent lawyers who minimize conflict and help you make practical choices. You can obtain the actual divorce yourself but you take a terrible risk when you do it without a professionally assisted separation agreement.

Call me anytime you have any questions about North Carolina divorce law, custody issues, or separation and settlement agreements.  You are under no obligation and it would be my pleasure to answer your questions.

 

Sam Margulies
(336) 669-3141

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Divorce Doesn’t Have to Mean Going Broke

How mediation saves a great deal of money

A mediated divorce saves clients many thousands of dollars. In a typical adversarial divorce using lawyers you can expect to pay each lawyer an initial retainer of from $1500 to upwards of $10,000 just to begin the case. Even though almost all divorces are settled by negotiation before trial, most attorneys approach every case as if it was going to have to be tried. If it settles before trial, fine. If not they keep preparing for trial, a process that can cost tens of thousands of dollars. So you pay to prepare for a trial that is not going to happen in close to 99% of divorces.

Today, the average conventional divorce, using an attorney for each spouse, costs roughly twenty thousand dollars.

When you choose mediation there is no retainer to pay. I charge $250 per hour paid as you go. The average mediation is resolved in less than eight hours of work. Most cases cost less than $2000 to complete the mediation. And if you consult with an advisory lawyer, you pay for each consultation instead of paying a retainer. Then, you pay the lawyer to prepare the final separation document and put the divorce through the court. The fees for both parties for this phase are generally less than $1500. So in the typical divorce the total professional fees for the entire process are generally about $3000, less than most couples pay for the initial retainer fees. That is why mediated divorce usually saves couples from $17,000 and up.

There is an important second reason that mediation can save you a lot of money. We know that about half of lawyer mediated settlements break down within two years requiring a return to court to fight about children and money. Each time this happens can cost thousands of dollars for each party. And this does not include the emotional toll this post divorce conflict take on you and your children. The reason so many of these lawyer negotiated settlements break down is that they are not real agreements between the couple but rather grudging concessions worked out by the lawyers. The result is that the level of true commitment to the agreement by the parties is low. And a low level of commitment results in a high level of willingness to breach the contract.

Mediation requires the parties to negotiate directly with each other until agreement is reached. A good mediator keeps you working until you are both satisfied that the agreement is fair. The result is a much higher level of commitment to the terms of your settlement and a greater willingness to abide by the terms. We know that less than five percent of couples who mediate their settlements return to court within two years. Compare this to the fifty percent of couples whose divorces are negotiated.

Call me anytime you have any questions about North Carolina divorce law, custody issues, or separation and settlement agreements.  You are under no obligation and it would be my pleasure to answer your questions.

Sam Margulies
(336) 669-3141

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You can achieve a “good” divorce

Because divorce is generally regarded as regrettable and socially undesirable, we tend to think of all divorce as bad and destructive. Certainly, most of us have known people who have had bad divorces. These are the ones in which couples do so much damage during the divorce that they are left unable to cooperate, still angry at each other and unable to adapt to post-divorce life because they are still destructively engaged with each other. For these unfortunate people the divorce has been a failure because neither is free of the other and they continue to interfere with each other’s contentment.

So is there such a thing as “good” divorce? As in any human endeavor there is a range of performance and a range of possible outcomes. Just as there is bad divorce characterized by mutual self defeat, there is also successful divorce in which a couple has successfully negotiated a post-divorce arrangement that leaves both partners as well a s their children able to adapt to their new lives. The key to understanding good or successful divorce is an understanding that almost all divorces (99%) are resolved prior to trial by a negotiated settlement agreement. The negotiation of the agreement, also called the settlement agreement or the divorce agreement, can be regarded as the final task of the marriage. A settlement agreement resolves all economic issues between the parties and describes their mutual rights and responsibilities as parents. It describes how their property is to be divided .and resolves issues of child support and spousal support. Done well, the settlement agreement becomes the economic blueprint for the family’s future. Done well, the document represents the genuine agreement of the partners so that both view it with a sense of justice and goodwill.

There are seven characteristics of a good divorce.

  1. Emotional closure for both partners. This means that there is no unfinished emotional business and they have both disengaged from the relationship and the conflict.
  2. A successful post-divorce social life. Each has achieved a place in the community, or has developed a network of friends. If they are interested in a new relationship, each has begun to date or has found a new mate.
  3. A sense of economic justice. Both have a sense that the settlement was fair. This does not mean that one or both does not feel strapped from time to time, but that the disparity between them is not glaring or dramatic and neither feels victimized by the other, or by the divorce process.
  4. Basic trust. This means that neither has demonized the other and gives the other the benefit of the doubt when disputes arise.
  5. Communication skills. They can communicate effectively, and their style is conducive to cooperative parenting.
  6. Mutual goodwill. Each can wish the other well and support the children in accepting, if not liking, the other’s new mate or lifestyle.
  7. Conflict resolution skills and a mediation clause. Both came out of the divorce process with a reasonable capacity to settle differences themselves, or with the occasional assistance of a mediator.

Although some may think that this notion of a good divorce is unrealistic or naïve, I think it is within reach of the majority of divorcing couples. Bitterness is not a necessary part of the process of divorce. Sadness, anger, fear of loss and loneliness are, perhaps, inevitable. But the bitterness that poisons post divorce communication is more often the product not of the decision to divorce, but of the adversarial process still used by most people to get divorced. When divorcing couples feel humiliated and terrorized by each other’s lawyers they invariably hold each other responsible for the things each other’s lawyers have said and done. That anger so poisons the relationship between the parties, that it precludes cordial communication and mutual trust.

Good divorce is more likely for those couples that keep their contact with divorce lawyers and the court system to a minimum. Couples who insist on maintaining control rather that surrendering control to an adversary system are those who have the best prognosis for successful divorce. They are the ones who manage their strong feelings and don’t allow their own acting out to sabotage their futures. They approach the tasks of the divorce with a firm resolve to treat each other respectfully and to solve problems as efficiently as possible. Some couples can do this themselves. Others will need the help of a mediator. But most couples, when informed about the alternatives, can negotiate fair and lasting settlements.

Call me anytime you have any questions about North Carolina divorce law, custody issues, or separation and settlement agreements.  You are under no obligation and it would be my pleasure to answer your questions.

 

Sam Margulies
(336) 669-3141

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How you manage the beginning shapes the entire divorce

Most divorces are not decided mutually but are initiated by one of the partners who has reached the conclusion that the marriage cannot continue. This “initiator” has thought about the divorce for a long time, has had the opportunity to mourn the failure of the marriage and to begin to visualize a new life separate from the spouse. This partner is ready for the divorce and regards the losses associated with the divorce as outweighed by the advantages. The other partner, the “non-initiator,” may or may not be ready for the divorce. He/she may be resigned to the divorce and may agree that the marriage needs to end, or, may be absolutely thunderstruck be the revelation from the spouse and caught totally by surprise. The non-initiator is in a very different psychological space and needs time to come to grips with the new reality.

Whether you are the initiator or the non-initiator, how you manage the beginning of the divorce can shape the entire process. If you define the divorce as the result of your spouse’s terrible conduct or character you will have a mess. If you tell your spouse that the divorce is all his/her fault you will have a mess. And if you press your spouse to reach a lot of decisions that he/she is not ready to make you will also have a mess. If you use the divorce to try to vindicate all your emotional agendas of the marriage, you will have a mess. On the other hand, if you approach the divorce as the sad but unavoidable decision occasioned by the erosion of the marriage, erosion to which you have both contributed, you have a chance at a good divorce. If you assure your spouse that you will wait until he/she is ready and then negotiate in good faith, you have a chance of a good divorce. And if you minimize your contact with an adversarial court system, you have a chance of a good divorce. Mediation can help you do this.

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