What is a “Surgical” Divorce, and How to Get One

Maybe you and your spouse want to get a divorce and want to do it in the simplest way possible.  Your situation is fairly straightforward.  You and your spouse have already figured out the basic terms.  (You’re still fairly friendly with each other and talking.) You both want to keep peace in the family and get to a fair result.  You both want to keep fees low and avoid complexity.  You both just want to get divorced.  Perhaps you fit the profile for a “Surgical” Divorce.

What is a “Surgical” Divorce and how does it get started? A “Surgical” Divorce is generally the most cost-effective, simple divorce that is professionally done.  It is generally started by one of the spouses retaining a lawyer.  You want simplicity, but you don’t want to go pro se (i.e., without the benefit of legal advice).  But you both really want to keep the divorce under your control.

Can one lawyer serve both of you as attorney? The simple answer is “no.” Even though you might both want to hire one lawyer, you can’t.  Because you are two theoretical adversaries in a divorce action, you cannot have one lawyer representing both sides of the court action.  And, as much as you may think there are no disputes between you or remaining issues to address as you work towards divorce, one (or two) may raise its ugly head.  So to begin the process, one of you should hire a lawyer.

What the lawyer does. Let’s say you’re the one that hires a lawyer.  You’ll work with the lawyer to understand how you and your spouse’s proposed plan corresponds with the laws in your jurisdiction and the facts of your marriage.  During this process, you’ll discuss with your spouse any changes in the terms suggested by your lawyer and the reasons for the changes.

When you start working with the attorney, you may find legal or practical issues that you did not address.  You also may find that something you and your spouse thought was “fair” perhaps isn’t, in light of what you are learning about your mutual rights and obligations in the divorce from your attorney.  You might find some better ways of doing things as a result of suggestions by the lawyer, who has lots of experience in divorces.  And, the attorney will provide a helpful reality check for you (and indirectly, your spouse) as you work through the process.

Drafting the court papers professionally. Then your lawyer drafts all the papers to your satisfaction.  The most important and extensive of these is the Separation Agreement (sometimes called a Divorce Agreement), which sets out the terms of your divorce.  These terms are for the period of marital disengagement and also (very importantly) provide a roadmap for the future.

Your spouse’s attorney. At some point, your spouse may consult with an attorney on his/her behalf.  That attorney will provide helpful feedback, which should aid the process.  If there are any unresolved disagreements along the way, hopefully you and your spouse can resolve them readily, now that you have been advised of what the rules of divorce are.  Or if an issue proves intractable, you can seek resolution of that issue through mediation or marital counseling.  Through this, you remain on good terms with your soon-to-be former spouse and will probably come easily to settlements on all of the issues.

What a strong divorce is. The “Surgical” divorce is a strong divorce.  It complies with all the rules of law of the jurisdiction of your divorce, because it has been done professionally.  If the court needs to approve it, it will almost always gain the court’s approval, because the drafting attorney (and the reviewing attorney) have made it so.  It has been done professionally, so technical issues (such as the mechanics of a division of retirement accounts) have been addressed correctly.

Do the attorneys need to go to the divorce hearing? Sometimes, in a “Surgical” divorce, the spouses do not bring the attorneys  to court for the hearing.  Your attorney will let you know whether there are special issues that may make it prudent to bring one (or both) of the attorneys to the hearing.  If you have decided that your attorney will not be at the divorce hearing, your attorney can prepare you for all the questions the judge will ask, and what kind of answers are expected.  If you run into problems, you can ask for a short “continuance” and telephone your attorney who can be on call during the hearing date and time to assist if needed.

Conclusion: You would be surprised at how many divorce cases fall into the category of “Surgical” divorces:  two nice people, who, for whatever reasons, can’t stay married.  They want to move forward fairly and expeditiously towards divorce.  The process is client-driven.  It reduces the escalation of acrimony during the divorce.

As you can imagine, this type of divorce is generally the least expensive of the professionally prepared divorces.  As a professionally prepared divorce, it is drafted carefully and soundly, with practical and workable provisions.  The spouses benefit from the experience of divorce counsel.  This all bodes well for the client and his or her soon-to-be former spouse as they transition into post-divorce life.

© Laurie Israel 2011.

The Problem with Prenups — How Mediation Can Help

Laurie Israel’s article on Prenups was published in The Huffington Post in 2 parts on August 31 and September 2, 2011 and on www.mediate.com on October, 2011.   To read the article, click here.

How Transactional Attorneys can Provide Value in Consensual Divorces

Laurie Israel and R. Paul Faxon’s article on use of transactional attorneys attorneys in consensual and collaborative divorces was published in the Boston Bar Association Family Section Newsletter in Summer, 2011.  To read the article, click here. 

About the authors: 

R. Paul Faxon is a transactional attorney, concentrating in closely held business law and commercial real estate, as well as a mediator and collaborative practitioner.  He is a past board member and former president of the Massachusetts Collaborative Law Council

Laurie Israel  is a active mediator and collaborative lawyer in Massachusetts. She is a former board member of the Massachusetts Council on Family Mediation and the Massachusetts Collaborative Law Council.  Laurie currently writes for The Huffington Post as a blogger on divorce-related topics, and is managing partner of Israel, Van Kooy & Days, LLC.

Home Funerals — An Old Fashioned Option

by Laurie Israel, Esq.

In the not so long ago times, people kept their loved ones in their parlors prior to burial.  I remember my parents telling me that my grandmother (who died in 1955) was wrapped in a shroud afterwards, and the family was around her during the day she died, and overnight, until she was buried. 

Our burials are very antiseptic arrangements.  The bodies are whisked away to a morgue and then sent to the funeral home.  Depending on our religions, we may (or may not) view the bodies of our loved ones.  We are taken away from physical association from the departed almost from the moment of death. This distances the grievers from their loved ones. 

Though separating the dead from the living is now tradition, it was no always so.  People used to have home funerals. Preparing the dead for burial and funeral rites were generally done by the friends and family members of the deceased.  This “old-fashioned” manner of dealing with the dead offers much.  It is essentially a return to a more traditional, personal approach to honoring the dead and going through the grieving process.  It may seem scary to us, but that is because we are so used to the other way, where the body disappears, and professionals handle everything.

If you want to find out more about this end-of-life option, a good place to start is by seeing the movie, A Family Undertaking  (PBS 2009), a film by Elizabeth Westrate, available on Netflix.   The movie follows several families and friendship networks in the United States during the illness of a loved one, through preparations prior to death, sitting with the bodies, the funerals, and the burials.  It is an eye-opening and touching experience. 

Another good source of information on home funerals is the classic Caring for the Dead:  Your Final Act of Love, by Lisa Carlson (1998).  It is still in print, and provides a wealth of information on home funerals, with articles written by various commentators on aspects of home funerals and caring for the dead.

In some states, home funerals are not permitted.  In Massachusetts, they are, but you have to follow the rules.   State health and sanitation laws and regulations must be scrupulously followed in the preparation and handling of the body, home funeral, and burial or cremation.   There are a number of individuals working in Massachusetts with people who want to have home funerals for their loved ones.  You can find Massachusetts information, find them, and get guidance by clicking on this link. 

http://homefuneraldirectory.com/archives/category/directory-listings/home-funeral-guides-and-consultants/ma

 The Commonwealth of Massachusetts has posted many useful resources addressing handling of bodies, burials, and cremations by family members for people planning home funerals.  http://www.lawlib.state.ma.us/subject/about/burial.html

 If you would like to pursue this matter further, it will take time to address all the legal and practical issues.  Therefore preplanning is important.  You can’t wait until your loved one (or you) dies.  So if having a home funeral interests you, start now to prepare.

© Laurie Israel 2011.  All rights reserved.

A Cautionary Tale — How Not To Prepare For Aging

 What follows is a composite of a story (really a family tragedy) that occurs again and again as people age.  It has to do with aging parents, the onset of dementia, and insufficient preparation for the future.

 A husband and wife, let’s call them John and Joan, have 2 children.  They have had middle-income earnings and saved for their retirement.   They now live in the (big) house where they raised their children.  Their income comes from social security, and IRA, and a small amount of income from a securities account.  They are 85 and 86 years old.  

During the past few years, they have started to progressively decline mentally and physically.  This is no surprise, since they are both older than average life expectancy.  (Most people over 85 have some sort of dementia).  John and Joan meant to have estate-planning documents (wills, health care proxies, powers of attorneys, etc.) but they never got around to it. 

John and Joan cannot take care of themselves in the house.  They are barely able to pay their bills (although they have enough money to do so, and are confused about what they have and what they can afford.  They have trouble climbing the stairs.  They are both still driving (small distances, slowly), but clearly are a threat to themselves and others on the road.  (Their refusal to stop driving is a symptom of their dementia.) 

John and Joan are only able to stay in their house because of the assistance of their daughter and her husband, who are driving 480 miles every week, and taking turns staying with the parents.  They are leaving their children (young adults who live with them) at home with only one parent at a time.  The daughter and her husband are at the end of their rope.  

John and Joan want to stay in their home on some days, and on others, they want to move to an assisted living facility.  When a lawyer came with power of attorney and health care proxy papers, they decided they did not want to name anyone.   With proper organization, they could hire home health care workers during the day, and continue to stay in their home for a while.  The help they need to stay in their home wouldn’t cost very much.  

The parents are getting very close to the point where, if they do not voluntarily accept help from their children, things will spiral down, and the parents will be in danger.   Then the children will need to ask for an involuntary guardianship/conservatorship.  The children do not want to do this, because they love their parents, and know their parents will hate them for it.  It’s not a good way to end a family history. 

So, if you are in your sixties, seventies, eighties (or older), do your planning now.  See the lawyer of your choice.  Try to plan for a smooth transition between you and the ones you trust.  Make it easy for your loved ones.  Otherwise, you will sadly be leaving them as a burden, which I’m sure you don’t want to do. 

© Laurie Israel.  2011.

Why Add a Neutral Process Coach to a Collaborative Divorce?

Collaborative divorce combines several elements of the divorce process into an effective whole.  The result is, in general, a divorce that is more closely tailored to the needs and interests of the divorcing individuals (and their children).  But adding a Neutral Process Coach to the mix may provide great value and lead to a better result. 

Here are some of the features of collaborative divorce:

Face-to-face meetings.  The litigation process is inefficient because the clients and their attorneys are not resolving the divorce directly, through direct communications, but through attorneys.  This is also a problem in non-litigated negotiated divorces. Because there is no face-to-face contact, hurtful and aggressive positions tend to be interchanged by the attorneys and the spouses.

In collaborative divorce, the parties engage in face-to-face sessions with their two collaborative attorneys.  Issues can be dealt with directly.  Miscommunications and misunderstandings can be cleared up or avoided altogether. Spouses tend to be more conciliatory and gentle to one another in this setting, leading to less extreme positioning.  In a sense, the collaborative process is the last act of the marriage, unlike litigation, which is at its essence, an act of war.

Client control of process.  As divorce attorneys, we partner with our clients.  Our clients should be in control and make the decisions that they can live with.  They are the ones who know the history of their marriage, their day-to-day needs and concerns as parents and as individuals.  We, as attorneys, are there to assist and support our clients.  The more we understand their concerns, the better we can help them.  Our skills, experience and legal knowledge benefit our clients.

What does “the law” have to do with it?  Part of what we do is help our clients manage their expectations by providing sound legal knowledge, helping the clients to be realistic in their desires for the terms of divorce.  Divorcing couples need to deal with multiple issues relating to finances and children.  We analyze the facts of their divorce through the filter of the law pertaining to divorce applicable in our state.  This way the client can understand the range of settlement on the various practical issues that the couple needs to resolve.  Issues analyzed may include future inheritance, the amount and duration of support, and whether the law would require an at-home spouse to enter the job market.

This all assumes that the law is worthy of application.  It is a living body of the best ideas of the most competent professionals dealing with the practical issues facing our divorcing clients.  These ideas and rulings are formulated in practicality and a deep understanding of the human condition. In most states, as in ours, divorce law is considered an “equitable” legal system, based on treating the parties fairly and justly. 

I am a lawyer and have great respect for written court decisions, as well as the skills of the probate and family judges in Massachusetts as they make decisions (often unpublished) in the cases before them.  These judges are high-level experts in this area and are worthy of respect.  For all the above reasons, I believe wholeheartedly in the appropriateness and suitability of the law.

Collaborative attorney as advocate.  There is very often a range of results.  When applying the law to the facts of an issue in a divorce, we attorneys seek to help our clients take a reasoned view on any issue, so that our clients feel supported and educated at the same time.  This helps parties to avoid taking extreme positions.  Extreme positions can derail collaboration, or negotiation, and cause the divorce spin into litigation. 

At the same time, collaborative divorce includes lawyer advocacy for the respective clients.  We meet with and speak with our clients off-line (not in the collaborative meetings).  They can truthfully express all the thoughts and wishes for their case that may not be appropriate to express in the group collaborative practice meetings.  In addition, in the separate meetings with the client, the lawyer can provide legal information that may support (or detract) the client’s position.  This helps orient the client as to what is possible.  The collaborative group meetings work best if words expressing advocacy (by the clients, but especially by the attorneys) are limited.[1]  In a collaborative case, because negative interactions and aggressive positioning are highly minimized, the spouses tend to be more generous to each other in offering terms of settlement.

With this as the background, a Neutral Process Coach can make the collaborative divorce case even better.

What is a Neutral Process Coach?  The Neutral Process Coach (NPC) is, most importantly as the term implies, a neutral.  He or she does not take sides and does not advocate for either of the spouses or for any result. 

The NPC is concerned with the process of collaborative divorce – to make sure the process works well.  The NPC does not coach either of the spouses or the attorneys, but facilitates effective discussions.  In that way the NPC is a coach or facilitator for the entire process. 

The NPC makes verbal observations of communication dynamics in real time.  The NPC identifies communication problems and issues on the part of the divorcing couple.  The NPC also calls on the attorneys when the attorneys are acting too much like advocates or litigators, thus detrimentally affecting the collaborative process.

Why attorneys cannot do the job of the NPC. When the communications become unproductive, the NCP can step in to offer a more productive mode of communication.  There are patterns and dynamics of a marriage (conflict, emotional) that come into play in the collaborative group meetings.  It is much more effective for the NCP to deal with these issues than the attorneys, because the attorneys are advocates for their clients and not neutrals.  It is very appropriate for the NPC to identify and address these dynamics.  He or she is a neutral and not an advocate for either of the spouses.  The NPC is on the side of the collaborative process and helping the clients transition through the divorce.  

Who can serve as a Neutral Process Coach? An NPC is generally (but not always) a licensed mental health professional.  However, the NPC can also be a trained collaborative practitioner who is not a mental health professional, such as a businessperson, a coach, or a mediator.  The NPC must be formally trained in collaborative practice and should be an active member (either full or associate) in the local collaborative practice association.  In addition, the NPC should have other training in conflict resolution, including mediation training, advanced mediation training, and advanced collaborative practice training.

Who chooses the Neutral Process Coach?  Generally, the two collaborative attorneys choose the NPC based on their experience in other cases, the needs and personalities of their clients, the location of the meetings and the skill of that particular NPC. 

Does the Neutral Process Coach need to be at every meeting?  Yes.  You never know when something will come up that needs to be addressed by the NPC.  If he or she is not there, the process could derail.  The NPC should be present at all times, especially at the first meeting.

Sometimes a NPC is mostly silent, only entering the discussion at certain points.  However, those points can be very important ones. The participation of the NPC at these times could be crucial to success or failure of the collaborative process. 

The NCP is the only neutral in the room.  The most important value the Neutral Process Coach has in the collaborative process is that he or she is the only neutral in the room.  They provide important ballast to the meetings, balancing the conflicts between our clients and how to resolve them.  They also help reign in the attorneys from acting like attorneys.  (We are highly trained to argue and to advocate for our clients and have to learn other skills in order to be effective collaborative lawyers.) 

Having a neutral person in the room at all times should not be underestimated.  It is a breath of fresh air.  When things get tough, all eyes look towards the NPC, literally and figuratively.  When that happens, if he or she has not already sprung into action, the NPC will assist by addressing what is happening to the process that is making it go awry.

The NPC can identify when the discussion is going off base, either because the attorneys are acting like attorneys, or the clients are reliving their conflicts.  With a few words, the NPC can right the discussion.  Richard Wolman, a Boston-based NPC, likens his role to that of a river boat captain.  When the water is rough and we reach rapids, he sticks paddle in the water and gets us going in the right direction. 

What about the clients seeing the Neutral Practice Coach outside of the collaborative group meetings?  We have found it useful for the NPC to be available as a resource to the divorcing couple in between collaborative meetings.  Sometimes the couple meets with the NPC together, and sometimes they each might meet with the NPC separately.  When the NPC meets with the spouses separately, it can have highly beneficial effect, as it gives each of the parties an opportunity to speak freely without the other spouse present.    It is similar to “caucusing” in mediation. The input obtained in these separate meetings with the NPC helps the NPC do his or her job better. 

Having been present for all group meetings, the  NPC doesn’t have to be brought up-to-date and already knows the clients and has viewed their interactions first hand.  He or she is learning the details of the divorce and the agreements that are being discussed.  He or she can be a valuable resource for the divorcing clients in between meetings.  This is been extremely useful to many of the couples in collaborative cases I have been engaged in.

What about the cost.  The NPC adds an initial cost to the divorce “package” based on the NPC’s hourly charges.  However, the value added by the NPC is great.  I believe that adding the NPC generally reduces the number of group meetings required to conclude the collaborative divorce. In addition, lawyer time between meetings is reduced by the lessening of unnecessary conflict and positioning. The NPC also adds to the quality of the process and the quality of the agreement.  This makes the couple’s post-divorce relationship better.  Finally, collaborative practitioners believe that the presence of the NPC improves the chances that the collaborative process will result in agreement and not spin out into litigation.  So, on the whole, we believe having a NPC does not change the overall cost of a collaborative divorce and may, in fact, reduce it. 

Are there any downsides?  The NPC is a trained neutral.  However, the NPC is not an expert in divorce law.  As a result, the NPC may say something in a group meeting that shows that the NPC assumes that a certain result must apply (due to his or her incorrect or imprecise legal conclusion).  This may arise in issues pertaining to spousal support, a very hot issue in divorces. 

In the background, the two attorneys might be fully aware that there is a range of results the alimony law provides.  The two attorneys might be in disagreement as to how the law of alimony applies to this case.  The attorneys also may have differing points of view as advocates for their clients.  And the clients’ views might be in opposition, not having reached resolution on this issue.

An NPC may come into the group discussion with a view of the law of spousal support and how it would be applied in the case inadvertently imbedded in his or her words.  This view might appear to take a position on what is being contested in the collaborative process.  What results is that the NPC no longer seems neutral to one of the parties, thus impairing his or her usefulness.

When this happens, it is important that the attorneys (especially the one whose client’s view was validated by the remark) immediately remedy the NPC’s presumption at the group meeting in real time (gently and mildly), so that the NPC can understand, be aware of it, and regain his or her neutrality.

Everyone makes innocent mistakes once in a while – even collaborative lawyers.  If mistakes can be immediately identified and corrected and apologies forthcoming, the collaborative process can move on unimpaired.  We are not perfect collaborative practitioners or NPCs.  We can only be “good enough” collaborative practitioners and NPCs. [2]

Conclusion.  Neutral Process Coaches add value in collaborative divorces by ensuring that the communications in group meetings are not derailed by emotional and position-based dynamics on the part of the clients and the attorneys.  The NPC can help the clients address their concerns better and can be the neutral element that the spouses and their attorneys can look to at difficult moments during the process.

© Laurie Israel.  2011

 

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[1] Another very important feature of collaborative divorce is the contractual agreement of the parties and their attorneys not to litigate the case while the collaborative process is ongoing.  This agreement prohibits the collaborative attorneys and any attorneys in their firms in engaging in litigation for these clients.  What results is a safe place (often called a “safe container”) where the parties and their attorneys can address the issues in the case without fear or threat of litigation. It makes a collaborative divorce different from any other process. 

[2] For a more detailed explanation of what Neutral Process Coaches do, visit Mary Jane Harmless’ informative post at http://neutralcoachincollaborativepractice.blogspot.com/  For the concept of the “good enough” collaborative lawyer, see Donald W. Winnicott’s concept of the “good enough mother” http://en.wikipedia.org/wiki/Donald_Winnicott.  See also therapist blog assessing the effectiveness of Dr. Melfi, Tony Soprano’s psychoanalytic psychotherapist, in “The Sopranos” as “a good enough therapist”  http://www.agpa.org/pubs/GC_0103_sopranos.html.

Do You Need Divorce Insurance? Take the “Divorce Probability” Test and Find Out

Published in The Huffington Post, April 19, 2011.

This past week, a colleague in the collaborative practice community, Chris Chen, a CDFA (Certified Divorce Financial Analyst) in Waltham, Massachusetts, told me about a company offering divorce insurance.  As someone involved in the business of both divorce and marital mediation (www.maritalmediation.com) I was intrigued.  I couldn’t resist taking a look at the company’s website, www.wedlockdivorceinsurance.com.  Here’s what I found:

WedLock Divorce Insurance^SM  is an insurance product marketed by SafeGuard Marketing Management, Inc., a division of Safeguard Guaranty Operations, Inc., which itself is a wholly owned subsidiary of SafeGuard Guaranty Corporation.  http://www.wedlockdivorceinsurance.com/About_us.aspx . 

The company, a North Carolina-based start-up, was formed by John Logan, a former victim of divorce.  Logan’s own personal experience with divorce proceedings served as the catalyst for developing this new product.

    Offering the insight that most divorces “don’t happen overnight”, Logan’s aim is to give people “a realistic and affordable way” to protect their net worth in case of divorce.  The divorce insurance basically provides coverage based on the number of “units” purchased and is payable after a 48-month waiting period.  This is essentially a “pre-existing condition” provision, the pre-existing condition being that your marriage is on the rocks, and you and your spouse hate each other.  (The waiting period can be reduced to 36 months by purchasing an “Accelerated Maturity Rider”). 

In order to get paid after the divorce, all you need to do is send a copy of your court decree to “Claims Direct Access” in Sandy, Utah. You can use the money for anything – even a post-divorce vacation with future spouse #2. However, it is unclear whether the divorce insurance proceeds might have to be shared as “marital property” with the ex-spouse, especially if earnings during the marriage paid for it.

 The parents of a spouse can buy a WedLock policy for their child.   What a thoughtful wedding gift that might be, although it may cripple a good in-law relationship. 

You can apply and pay for the policy online, and you won’t even have to take the “Divorce Probability Calculator” test on the site to qualify for coverage.   (More about that below.) 

The coverage consists of “Units” in the amount of $1,250 each, with an automatic increase of $250 per unit per year, a very nice feature.  Each unit costs $15.99 per month.  The sample contract on the firm’s website shows that for 15 units of coverage (payout of $18,750), the cost to you is slightly under $240 per month.   (“Hey, honey, marry me, but I’m spending $240 a month on this little insurance policy.  I hope you don’t mind!”)  

The maximum policy is 200 Units ($250,000 of coverage) and would cost about $3,200 per month.    Due to the cost, the insurance is probably mainly used to pay legal costs and not to replace assets taken by the rapacious ex-spouse in the divorce proceeding.  In fact, 10 or 15 units of coverage might nicely pay for a Collaborative Divorce, which is a very nice way to go if you’re getting a divorce.   To learn more about Collaborative Divorce, visit www.massclc.org

According to the website, WedLock policies are underwritten by a number of insurance companies, depending on where you live.  These are the so-called excess & surplus insurance lines which provide unusual insurance.  Reasons for this include insurance offered by new entity, a new kind of coverage, or one with an inadequate loss history or unusual risk.  E&S policies are not written by standard, licensed insurance carriers subject to state regulations.  

According to the video on the WedLock site, its insurance is not available in North Carolina, Kentucky, Oregon, or Pennsylvania.   By the way, in case you’re interested and would like to make extra money,  you can have the “ability to earn unlimited income through” by selling WedLock Divorce Insurance through SafeGuard’s  Partner Affiliate Program. 

I loved the website.  It contains wonderful information about divorce: its causes, factors, and statistics, all nicely researched.  http://www.wedlockdivorceinsurance.com/(S(sgewocwgy4pt34dtbiepevft))/Learn_more.aspx

 There is a divorce cost calculator, which helps you estimate how much your divorce hair cut will cost. http://www.wedlockdivorceinsurance.com/div_costs.html

The site is actually kind of upbeat and not depressing at all, especially if you think you are far from divorce.   I loved taking the “Divorce Probability Calculator” which tells you how risky your marriage is.  This happens immediately online.  You only have to give the company your name and email address in order to take the test and get your results.  After you take the test, WedLock electronically delivers a very nice report which explains the results.

The Divorce Probability Calculator relies on the 20 factors that research has shown are significant in the success or failure of a marriage.  These include key elements such as educational level, age at marriage, cohabitation before the marriage, whether it is a second (or third) marriage, the existence of children from a previous marriage, and unemployment of a spouse.

I put the factors that are present in many of my married friends into the “Divorce Probability Calculator”:  casual drinking, religion “not important”, having cohabited during marriage, and “regularly arguing” with your spouse.  The result was not good – a score of 92.  That hypothetical person would have a “Very Strong Probability” of divorce.   The result noted, “The news is not good.” But on a more encouraging note, it posed the question, “Does that mean you should never get married because you’re almost guaranteed to get divorced?  Certainly Not!  You may end up happily married forever after… but statistically, the odds are against you”.  

Then I adjusted the factors, thinking that maybe my friends didn’t “regularly” argue, but “occasionally” argued.  I hoped this would greatly improve the results. 

Unfortunately for my friends, the score went down only to 72.   They are at risk of losing their marriages, their homes, and in general, getting a divorce “hair cut”.  If they are marital mediators who help people improve their marriages (www.maritalmediation.com), this might be somewhat professionally embarrassing for them, too.  Many of my friends had previously thought their marriages were strong, and loved their spouses.  Now it has become my duty to warn them and inform them otherwise. 

 When I put “rarely argue” into the factors, the score got better – a 63.  But I thought the couples who rarely argue are the ones who – surprisingly to all their friends and family – end up in divorce court.

Then I began to wonder whether 92 was really a bad score, or if the results continued beyond 100.  I put in some additional unfavorable factors to test my hypothesis.   In addition to “regularly argue”, I added high school (not college) education, the existence of step-children in the marriage, and unemployment.  At that point the result was 150 points.  It was a still “Very Strong Probability” of divorce (the same as when the score was 92), but I was given this advice: 

 “Does [this] mean you should never get married because you’re almost guaranteed to get a divorce?  Certainly not!  In your case, we very STRONGLY [emphasis in the original] recommend that you adjust your budget to ensure that you can cover yourself against the unexpected.  In any event, we wish you the best of luck!” 

For all of you who take the “Divorce Probability Calculator” on WedLock’s site, I wish you the best of luck, too.  Based on the results, you might seriously consider buying WedLock insurance.

 © Laurie Israel 2011.

Can Transformative Mediation Help Your Marriage?

Published in The Huffington Post, March 21, 2011. 

As a divorce lawyer and divorce mediator, my divorce clients describe problems that led to the failure of their marriages.  These problems seem to be universal.  There might be anger and frustration about sharing household duties and creating income for the family that finally caused a breakdown.  Some marital failures were a result of concrete problems relating to livelihoods and financial security.   Other couples report problems associated with lack of time, diverging interests, in-laws, difficulty with children.  Whatever the problems are, at the end of a marriage the spouses no longer want to live with each other. 

 We take our divorcing clients’ problems seriously and respectfully.  But when asked, most divorce lawyers and divorce mediators will tell you the same thing:  in most cases, if their divorce clients had addressed their problems a year or two earlier with the proper help, their problems could have been resolved.  

 This vision has motivated many of us divorce attorneys and divorce mediators to begin working in the area of “marital mediation”, in which we use mediation as a way to help married people improve their marriages and avoid divorce. 

 How can mediation help a marriage? 

 Here is a pattern that we often see divorcing clients complain about.  The husband may be the primary bread-winner.  The wife complains that he spends too much time outside the home and doesn’t adequately participate in home life and with the children.  The husband is under a lot of stress at work and is exhausted when he returns home.  The wife is exhausted with child and home care, and may also be working outside of the home.

 When people think of mediation, they think of “traditional” mediation.  In this type of mediation, the mediator focuses on helping people come to an acceptable agreement, usually written.  It is a solution- oriented process.  The mediator focuses on resolvable issues where agreement can be reached. It is the type of mediation often used in workplaces and with divorcing couples. Because it is results focused, the roots of the problem are not addressed.  When used for divorce mediation, this can be appropriate, because the couple has decided to end their marriage, and not deal with the reasons for the breakdown.

 Another type of mediation is “transformative” mediation, which can be very helpful in ongoing marriages.  Transformative mediation does not necessarily seek to resolve an immediate problem. It is a free-form process that does not immediately narrow its focus to try to seek solutions or agreements. 

 The transformative marital mediator helps guide the clients to talk and think deeply about issues that are troubling them about their marriage.  These are often issues that the spouses cannot meaningfully talk about themselves, because they are emotional issues.  Talking about them always seems to be a replay of anger, and nothing seems to improve. 

 When spouses discuss difficult issues in front of a third-party neutral mediator, things are different. Just by having a third party present and listening, the parties are better able to express themselves without interruption and without argument.  The mediator can guide the discussion to keep it respectful, open and on track.  This process can help the clients clarify the nature of their problems and better understand and respect the views of their spouse.  With understanding, a range of options for minimizing conflict becomes more apparent.

 The mediator does not provide counseling or give advice.  But the mediator does view the exchange and give feedback.  This by itself is very helpful.  The mediation can help eliminate patterns of conflict, reduce negative thoughts, and reframe interpretations about motive.

 The mediator can give the party feedback to their communications and whether there is miscommunication and lack of understanding. Part of the work of the mediator is to identify the underlying issues in the conflict or discussion.  These may be issues that are not recognized by the spouses themselves even in a long-term marriage. Having a third party identify issues makes it acceptable for the spouses to openly discuss the issues.  The mediator can lead the spouses in a productive discussion and how it may relate to their marital conflict.

 Transformative marital mediation can be seen as a place for full discussion, active listening, being receptive to the other party’s point of view, and being heard, understood and acknowledged.  When marriages do not work out, it is generally lack of acknowledgement and understanding between the parties that is the core of the failure.   With an increased understanding from transformative mediation, spouses can begin to solve their problems, reduce their conflict and have a happier marriage. 

 If you would like to locate a marital mediator in your area, search “marital mediation” and your city or state, and you will find mediators who work in this area of practice near you.

 © Copyright 2011.  Laurie Israel.

Laurie Israel to present marital mediation workshop in Brooklyn, NY

This coming weekend, Laurie Israel will travel to Brooklyn, NY to give an all-day workshop for mediators on how to help married couples through mediation.  She has been invited to present by Mediation Works, Inc., 16 Court Street, Brooklyn.   The all day-conference will include presentations, discussion, role plays and power points.  In addition, Matt Gross is expected to make a Skype appearance to present on how to increase your mediation practive through social media techniques.

Laurie Israel presents marital mediation workshop in Brookline

On Saturday, April 23, 2011, 16 mediators gathered in the Courtyard Marriott in Brookline, Massachusetts for an all-day workshop on how to help married couples through mediation.  Discussion, role plays were part of this interactive seminar.  In addition, Matt Gross presented on how to increase your mediation practive through social media techniques.

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