This question can refer to two very different sets of divorce papers. One is the initial papers filing for divorce, and one is the final order completing the divorce; and of course, I am only discussing this from the perspective of divorce in Washington State. The law in other states or countries may be different. […]
As a general rule, the best thing you can do for your children during a divorce is to keep the impacts on them to a minimum. Certainly there will be impacts – they will have two homes, they won’t see both parents most days, etc. But the toughest impacts come from being exposed to conflict […]
A question that comes up from time to time is: how much should the children be given a voice in the divorce?
This generally relates to the parenting plan. I cannot think of issues related to the financial settlement where this would generally be a question, although some issues related to the parenting plan may have some impact on financial decisions, and vice versa, such as where the parents are going to live after the divorce.
This is certainly an issue that is going to vary greatly between families. Some parents will prefer to keep the children out of the divorce process entirely, and some children really would not want to be put in the position of having to state any preferences. Other parents will feel that it is important to make sure that the children are heard, and some children do want to be heard.
If you do want to give your children some voice in the process, I think there are two important principles to keep in mind:
First, it is generally best to make it clear that while you want to listen to what they have to say, the parents will be making any final decisions.
This actually makes it easier for the children to say what is on their minds, since they are not being asked to make decisions. It also avoids the parents being boxed in by the children stating preferences that the parents do not believe are best. It gives the parents the freedom to craft an agreement that takes into consideration both their own views as well as any concerns or opinions expressed by the children.
The second principle is that the child should not be asked questions that put them in a position of expressing loyalties between the parents.
The children are generally very attached to both parents, even when the parents see themselves in more good spouse/bad spouse terms. A continued good relationship with both parents is important to the children’s long term development and mental well being.
Asking a question such as which parent they want to live with, or how much time they would like to spend with each parent, is really asking them to choose between their parents; which is not only a terrible position for them to be put in, but also could be detrimental to their relationship with whichever parent comes out the loser on the choice.
A better way to allow the children a voice with regard to schedule is simply to ask them if they have any input about the parenting schedule. This makes room for them to say something if there really is something they want to say (some teens may have some strong opinions related to how their own schedules will be affected) without putting them on the spot to make choices.
Children tend to prefer stability and predictability over change. Stability and predictability feel safe. Divorce means change.
On the other hand, a home with significant conflict also does not feel safe, and even without open conflict a home where love between the parents is missing sets our children up to accept that as normal. A bad marriage is not what we want to teach our children to expect for their own futures.
Therefore, if we want to avoid a divorce being an overall negative for our children, we need to find ways to make the change lead to something better. A reduction in conflict between the parents because they are not living together can be a positive. New and better relationships can be a positive.
The secret is to allow the positives while avoiding the negatives. Ways to do this include:
1. Keep the conflict away from the children. Don’t argue in front of them.
You will need to have discussions about various divorce issues, but save those discussions for times or places away from the children. Meet at a coffee house, step away from your desk at work, go for a walk, etc. This also means not criticizing the other parent in front of the children, even in conversations with friends (children have big ears).
2. Let a professional guide the conversation.
Discussions about divorce issues can be very frustrating when we disagree but don’t know how to resolve the disagreement. When that happens, tempers flare, and the discussion gets even less productive. A professional mediator or family therapist has tools and methods for leading the discussion down productive paths and avoiding the less helpful tangents, for putting out brush fires that block the path, and for jointly setting the goals the path should lead toward.
3. Reassure the children.
Emphasize that both of you still love them and will be continuing to work together on parenting. Be positive, and this means you have to feel positive – children readily see through you faking it. To be able to convey a positive attitude, you need to develop a positive attitude. Meditate on the positives of your new life like new relationships, new opportunities, and reduced conflict rather than the negatives.
4. Focus on presenting a united front.
Even when the two of you disagree about parenting, find a way to work out those differences away from the children and then both support the agreement in front of the children. Not only will this give the children much greater stability and less confusion in their lives going forwards, but it will avoid the children learning to play one parent off against the other (“Mom lets us …”, “Dad doesn’t make us …”, etc.), and that will make YOUR lives easier.
Over the last couple years, Seattle has seen an extreme rate of growth in housing prices.
Right now we are leading the nation in housing price growth. While this may be good for sellers and landlords, it is making it harder and harder for buyers and renters. One impact is that some people in the area are questioning whether they can afford to divorce, given how hard it may be to find new housing if they move out.
Divorce is about ending a relationship. It should not be about affordability. If you need out, you need out.
Here are some options to consider if you are concerned about the cost of independent housing:
Nesting. While this may not be a long term solution, and certainly won’t work for every couple, some couples who want to avoid disrupting the children choose to rent a small apartment nearby and take turns between the two residences. The parent who is scheduled to be parenting stays in the main home while the person who is on “parenting break” stays at the apartment. This allows them to keep the children in the family home and pay less for a smaller residence that only one person is using at a time.
Co-housing. Sharing residences can take many forms. There is the traditional taking in a roommate, but there are also options like purchasing a home with separate rental space (such as a duplex) and living in one part while renting out the other. Similarly some homes may have space, such as a mother-in-law apartment, that are easily converted into separate living space for a second person or family. Co-housing can also mean several people purchasing land together but building separate housing on it. There are several established co-housing communities in the Seattle area.
Downsizing. You may find that without your partner living with you, you can get by with less space, and that you can find something affordable if you are willing to accept that tradeoff.
Relocating. This does not need to mean moving to Nebraska, it may just mean getting a bit further out of the city. You may be able to find significantly better prices in Edmonds than in North Seattle, for instance.
Tapping equity. The upside of the growth in housing prices is that many couple have acquired significant equity in their existing homes. There may well be enough equity to provide a down payment for both parties on new less expensive residences. Even if one party is going to stay in the existing family home, it may be possible to refinance the home in order to take out equity for the other party to get into new housing.
Shifting investments into housing. Real estate can be a good investment. There may be other investments that can be tapped to shift the funds into housing. You may even be able to take money out of retirement plans to put into housing.
When considering options like these, it is important to get good financial advice. You may want to find a financial advisor who has specific training in divorce financial planning. A CDFA is a person who has completed training as a Certified Divorce Financial Analyst. One list of people who do this kind of work in the Seattle area can be found at the King County Collaborative Law website.
The process of developing workable housing options may be easier if both parties can cooperate in joint problem solving, finding solutions that will work for both.
If that sounds like it may be an option for you, then look into Collaborative divorce process. This is an option we offer at Seattle Divorce Services, and we can give you the names of other Collaborative lawyers for your partner as well. The Collaborative team typically includes a Financial Specialist who can help both of you look at ways of handling the difficult housing market, including whether it makes sense to hang on to an existing residence versus cashing out.
One final point to consider is that if refinancing may be part of the equation, you may find that it is easier to to refinance before a divorce action has been filed. Your financial advisor may be able to give you more information on that issue, and even help you connect with a mortgage broker who is experienced in divorce related financing.
In the course of a divorce involving children, the parents will need to develop a parenting plan that determines how they share time with the children, including various holidays and special occasions.
For many families, the December holiday season is one of the most important family times of the year, and requires special thought about how best to plan it around the new family relationship where the parents are not living together. This can become a difficult conversation, since the holidays are laden with so much emotion and meaning for each parent.
It may help to keep in mind that what is best for the children is parental cooperation. This thought can help make it just a bit easier to make room for flexibility and compromise to achieve the goal of a good holiday experience.
If it feels like the two of you are not able to work through these arrangements on your own, it can be very helpful to involve a neutral child specialist, family therapist, or family mediator. This provides for a more structured and moderated conversation at a location that may feel safer to both parents. The mediator, therapist or child specialist can provide guidance on child needs and development, ideas that have worked for other families, and methods for getting past “stuck” points.
From a practical perspective, it often helps to look farther into the future than just the currently upcoming holiday season. A good way to help plans feel fair to both sides is to alternate them – i.e. the time Parent A gets in year 1 goes to Parent B in year 2, and vice versa. This helps each parent feel like whatever the specific arrangement is this year, what goes around comes around. It is easier to reach agreement when the agreement feels balanced.
Assuming a two week school vacation and a family that celebrates Christmas, an arrangement we often use to keep the back and forth to a minimum is Parent A has the children from the time school lets out through Christmas morning, and Parent B has the children from Christmas morning until school starts again. Even if the time split is not quite equal because of where Christmas falls in the week in a given year, it should balance out over the years.
Alternatively, your family may have traditions around the holidays themselves, travel to visit relatives, skiing vacations, or other issues that may need to be considered in coming up with a plan that best fits your situation.
In the end, the best present you can give to your children is a stress-free holiday season.
If your spouse agrees to pay for both divorce attorneys, certainly it is possible.
Some attorneys may be reluctant to accept payment from the other spouse, citing conflict of interest concerns, but I would expect most would be okay with it. Even if the attorney does not want to take direct payment from your spouse, your spouse could always give you the money for paying the bills.
Keep in mind that even if your spouse agrees to pay your attorney fees, the attorney’s contract is still with you, and you remain primarily responsible for making sure the bill gets paid, one way or the other.
The more difficult question is whether you can force the your spouse to pay for both attorney fees. The short answer is you cannot, but the court can. The court has the authority to order your spouse to pay towards your attorney fees. The court can order the spouse to advance a certain amount for current and future fees, or it can order the spouse to reimburse you a specific amount for past fees.
Generally an attorney is not going to take on a case without some fees advanced up front, which means you will need to come up with the initial deposit yourself. Once you have hired the attorney, they can bring a motion asking the court to require the other spouse to pay some amount towards your attorney fees. Also, at trial, your attorney can ask the court to include a judgment for attorney fees in the final orders.
The usual standard for evaluating attorney fee requests is “need and ability to pay”. This means that the court looks at how much the one party needs help with their legal expenses, and at how much the other party has the ability to help pay those expenses.
Typically the amount the court awards is only a portion of the total legal expenses. You remain responsible to your attorney for any amount the court has not ordered the other side to pay, and in fact also for any amount the other side is ordered to pay but fails to pay.
For this reason many attorneys will still require you to front the money, and then seek reimbursement from your spouse.
The main thing you need to be aware of (at least in Washington State): you don’t need to know every detail about what you will ask for at the time the divorce is filed.
The Petition, or Response to Petition, can be framed in very general terms. All you need to know are the broad categories. For instance, the Petition should state whether or not you are requesting:
property to be divided
a parenting plan
spousal maintenance (alimony)
a name change
As the divorce process progresses, you and your attorney will work together to determine what specific settlement terms are appropriate to request in negotiations. And of course as the negotiations progress, the terms will likely change.
It is important to be aware that when dividing property, there may be types of assets that some people forget about or think are not subject to division, such as business interests or retirement plans.
Just because a retirement plan is in one spouse’s name does not mean that it is not community property and subject to division. We often use a special order called a QDRO to divide retirement plans and award a portion to the other spouse.
Also be wary of simplistic solutions like assuming everything will be divided 50/50. There are various reasons why property often is not divided 50/50, including the future earning potential of each spouse and separate property owned by each spouse.
It is important to take stock of your needs and goals and how structuring a settlement can support those needs and goals.
For instance, you may determine that you should receive $250,000 of total assets from the marital community, but which assets should you take to achieve the $250,000?
Taking on the house (with $200,000 equity) may not make sense if you don’t have the cash flow to support continuing to live there.
If you are concerned about your long-term future, you may want to push for more of your share to be in retirement assets. On the other hand, if you are more concerned about getting back on your feet in the short term, you may want to push for more liquid assets.
It can also be helpful to take stock of your spouse’s needs and goals.
The more you can make proposals that also address your spouse’s biggest concerns, the more likely you are to actually come to agreement.
If you ignore what they care about, the harder it is going to be to come to agreement on the things that are important to you. In fact, it is best if you can avoid getting into a pattern of request and response but rather engage in a discussion where both sides problem solve together.
Finally, when making requests, it is important to neither over reach or under reach.
Asking for the moon usually accomplishes little except causing you not to be taken seriously, and even ticking off the other side and making them less willing to deal with you. The end result of such tactics is to increase the cost of getting to resolution.
On the other hand, intentionally asking for too little in order to get the divorce over quickly is trading off long term needs for short term satisfaction. It might feel good now, but in a few years you may have major regrets when your finances, or your parenting time, fall short.
Work with your attorney to assess what is a realistic range for settlement and try to structure something within that range that works for both parties.
Last week I discussed questions to help you decide which attorney to hire. This week, I wanted to suggest some questions to ask to help you be better informed about the divorce process itself and to help you make decisions about the divorce.
Some basic questions include:
What might it cost to get divorced, and
How long it might take through the local courts
The courts in different areas can run longer or shorter than courts in other areas, so you need to know what is typical in your area. In particular, you need to know how long it takes to get to trial, if a trial ends up being needed.
With costs, be aware that this can vary significantly from attorney to attorney depending on how they operate. Some attorneys are better than others at scaling their costs to what you can afford. Some see it as their responsibility to do the best job they can for you even if it means higher costs, while others see it as their responsibility to do the best job they can for what you can afford.
You might also ask the attorney to what degree would they check with you before taking specific actions which you will be expected to pay for.
What factors are considered by the courts?
Most attorneys resolve litigated cases by referencing what they think a court is likely to do in your situation.
You may have your own ideas about what you think is fair or what the court should do, but often the factors used by the court to decide the issues are different. To understand what you may be looking at, you need to understand how the court approaches the issues.
For instance, in Washington, property is not simply divided 50/50. The court has to look at whether property is community or separate, what the incomes of the party are, what the overall financial position of each party will be after the divorce, etc. There are also a number of factors that go into decisions about support and parenting.
You need to understand what those factors are and how they may affect your case, so be sure to ask your attorney about them.
What is the range of potential outcomes?
Many people ask their attorney what they think is the most likely result. This may get you a good guess of what could happen, but a much better question is: what is the most likely range of outcomes.
Things rarely turn out exactly as expected. There is just too much variability in the system. If you have only asked about the most likely outcome, you will be fixed on expecting that and will disappointed when it turns out differently.
If you understand what the likely range of outcomes is, and the factors that may influence the outcome, you will be much better prepared to make decisions as you proceed through the divorce process, and better prepared for the final result.
For instance, it is one thing to hear that the most likely spousal support amount is $4000, and another to hear that anything between a low of $2000 and a high of $7000 could be considered normal.
What process options are there for reaching agreement?
Very few divorce cases actually go to trial. Generally, the attorneys are able to settle the case prior to trial.
The usual method is for the attorneys to talk to each other, and perhaps bring in an evaluative mediator to give a third party perspective on what a court might do. However, you might also want to discuss options like you and your spouse talking to each other or working with a facilitative mediator yourselves. You could discuss using a Collaborative process with attorneys trained in that process.
You may want to discuss your attorney’s negotiation style – is he or she someone who tries to beat up on the other side to get them to back down, or do they work with the other attorney to problem solve solutions that both sides can be comfortable with? Your choice of approaches might depend both on your current relationship with your spouse as well as whether a future relationship with your spouse is important to you (and if you are going to try to co-parent with them).
What are the pros and cons of having a court make decisions for you?
Certainly having a court make decisions offers finality, but it also reduces your say in the final result. You are putting your future in someone else’s hands.
If you have particular goals in mind for your future, you should discuss those with your attorney and ask whether court is the best way to achieve those goals, or if a different negotiation strategy might be more successful in achieving what you really need.
Next week I plan to write about questions for your attorney about the divorce. This week I am focusing on questions to ask to help you decide which attorney to hire.
One very important thing when hiring an attorney is deciding whether they are a good fit for you. Every attorney is different and every client is different. No matter how good the attorney is, they may or may not be a good fit for you. When the fit is not good, it is going to be a frustrating experience for you both.
The following questions can help you figure out if your attorney’s goals and perspectives line up well with yours.
How would you describe your job as a divorce lawyer?
This question is to get an overview of how the lawyer likes to work. Some see their job as fairly independent from the client, i.e. getting what they see as being the best deal they can for you, while others see their job as working with you to help you achieve your goals.
You then have to ask yourself how involved you want to be in the divorce process – do you just want to turn the attorney loose to do what they can for you, or do you want to be part of the team?
Some attorneys see themselves as problem solvers, while others see themselves as fighters. Would you prefer an attorney who is very aggressive and thinks first in terms of going into court, or do you prefer an attorney who thinks first in terms of negotiation and saves court for those times when negotiation fails to produce agreement?
What is your process for handling a divorce?
It is a good idea to have an idea of how your attorney works. Do they have a specific process they like to follow, or is it more fluid depending on the nature of the case? Your own personality may incline you to be more comfortable with one approach or the other.
Also, listen for how much their process is designed around working with you or is largely independent from you. How do you feel about their style?
What is my role in the divorce process?
This question further explores how much the attorney will be working with you and how much you will be involved in the case. Some people prefer to sit back and let the attorney make most of the decisions, while other people like to be involved at every step. It is very good to know what to expect before you get started.
Who is your ideal client?
This is to see who your attorney is most comfortable working with, which will tell you a lot about how good a fit you may be with that attorney.
If the attorney says something like “anyone who can pay the bill”, then I would suggest that the attorney has never thought about who they are a good fit for. I would also suggest that such an attorney may be less focused on you as an individual client.
If the attorney does have a good idea as to the type of client they work best with, ask yourself very honestly whether you are that type of person or whether you might work better with a different attorney who prefers someone more like you.
How would you define a “good” settlement?
Does the attorney focus on objective standards based on their experience, or do they focus on your goals?
Some attorneys will look primarily at the immediate outcome (it is good if I can get you $X), while others will look at a broader picture (it is good if it allows you to feel secure about your future, live where you want, pursue a career, etc.).
I personally prefer the approach that looks at the broader picture, as it takes into consideration more factors about you and your future, as opposed to the generic client. I believe that the settlement that is right for Client A may not be right for Client B if it does not fit their lifestyle, hopes for the future, or unique circumstances.
What is your idea of a good parenting plan?
This is a good question if you have children. An important thing to watch for in the answer is whether it focuses on you, on your children, or on the whole family.
I believe that the best parenting plans focus on the whole family, as the children will benefit the most when they have the best possible relationship with both parents, and the parents are most able and prepared to co-parent in the most cooperative way they can.
An attorney who only focuses on you and your time with the children may be more likely to set you up for an increased level of conflict with the other parent for years to come, which will leave everyone involved miserable.