Collaborative Divorce

Divorce can be emotionally harmful to a child.  Divorce inalterably changes the family dynamic.  To help limit the negative impacts that divorce can have on children, parents should consider and rely on the Collaborative Divorce process

It is vital to understand how childhood experiences can impact a child in the future.  For context, consider The Adverse Childhood Experiences (ACE) Study, first published in the late-1990s.  This seminal work is critical to understanding the negative impact that adverse childhood experiences have on children.  The study concluded that adverse childhood experiences could have significant physical, mental, and emotional effects into adulthood. (See https://www.cdc.gov/violenceprevention/aces/.)

It is well-known that child separation from a parent, a form of neglect, is an adverse childhood experience.  A recent interview of Dr. James Coan by the Institute for Family Studies highlights how neglect can adversely impact children.

“Adverse Childhood Experiences range from things like parental divorce (relatively common) to many forms of abuse and neglect (relatively rare).  Their effects vary, and the data suggest that most children are resilient.  But there does seem to be a cumulative effect—so the more of these traumas one experiences, the worse outcomes you can expect.  Such outcomes include behavioral problems, anger, aggression, impulsivity, ADHD, depression, anxiety, and a number of physiological symptoms like heart disease, diabetes, autoimmune activity, etc.  The age at which a trauma is experienced matters as well.  The younger you are, the more devastating the trauma can be.  More surprising to many people is the relative impact of neglect versus more active abuse.  Of the two potential traumas, it looks increasingly like neglect is the most negatively impactful.  Children need to be cared for and interacted with.” (See The Trauma of Family Separation: An Interview with Dr. James A. Coan, https://ifstudies.org/blog/the-trauma-of-family-separation-an-interview-with-professor-james-a-coan.)

As Dr. Coan appropriately notes, divorce is a relatively common adverse childhood experience.  Many children are sufficiently resilient to overcome divorce.  The concern, though, is one of accumulation.  A child living through the divorce process may experience neglect because she no longer sees each parent every day.  Also, and unwittingly, a divorcing couple could allow adverse experiences to accumulate during the divorce process (for example, fighting with your partner in front of the child, emotionally neglecting the child’s needs, or denying visits with the non-custodial parent).

Divorcing parents should strongly consider the Collaborative Divorce process when a child is involved.  A key to Collaborative Divorce is the Collaborative Team, which helps the adults navigate through their own emotions and fear.  The Team includes the parents, the attorneys, a Divorce Coach, and a Financial Professional.  The Team will support the entire family and help the family resolve their case issues.  The Collaborative Team can help the adults keep the best interests of their children in mind and can help the parents avoid the accumulation of adverse experiences and potential trauma from the parent’s divorce.  The Collaborative Team, which could include a Child Specialist in complicated situations can also help the parents understand their child’s possible response to the divorce.

Ultimately, the Collaborative Divorce Team can help the parents keep the focus on the health and safety of their children.  The goal is to bolster the children’s resilience and allow the entire family successfully navigate the divorce.

Over the past few months, someone has been painting small rocks with kind words and leaving them around our neighborhood. The stones in question are the kind that could easily be picked up and thrown. They are small, perfectly sized for a hand. I’ve wondered who is leaving them about but realized that the message is more important than the messenger. Someone, perhaps a child, reminds us not to throw stones but rather to treat each other with kindness and respect.

As we enter the holiday season, these stones remind divorced parents to be kind to each other during the holiday season because this kindness is in the child’s best interest. When a child who used to live with both parents is now living with one parent, both parents should keep an almost universal truth in mind – the child loves both parents. The child wants his family to be kind and respectful of each other.

During the Collaborative Divorce process, you and your team talked about the holidays and the need to keep the child’s best interest in mind. You, your team, and your former spouse came to agreements about the holiday schedule. You also probably worked hard on a plan to make the holidays as “normal” as possible for the child. But, as the holidays approach, it will likely become clear that the situation is no longer the norm that it used to be.

For the first time, each parent may face the prospect of having their child not present for the usual family traditions. The child will feel the loss as well. The child will need support during this holiday season in a way that she has not required in the past. It is crucial to avoid expressing negative feelings about the ex-spouse in front of your child. Expressing these negative feelings in front of your child, even subtlety, will only undermine the child’s well-being.

It is also crucial to avoid placing the child in a “loyalty bind” by making the child feel she has to choose a parent. Parents should not compete for the child’s affection through gift-giving that undermines the other parent. The Collaborative Divorce process helps parents to learn to address these issues together. The holidays are the perfect time to put these skills into practice.

Supporting your child does not mean continuing to pretend that the family unit remains a whole. The child likely knows that is not accurate – even at a young age. It may be possible to maintain some traditions. Still, most specialists recommend finding ways to make new traditions for you and your child during the holidays. To the extent possible, parents should involve the child when establishing new traditions. Responding to the physical, social, and emotional age of the child is essential.

Also, it is necessary to be empathetic towards the child’s feelings about her other parent. Even if the divorce finalized months before, the holidays are a time of heightened emotions. The parents must acknowledge that the child is trying to understand her new normal, which may involve seeing the parents separately, seeing one of the parents sporadically, or not seeing a parent if the parent is not safe. Empathy in this situation may be just acknowledging the child’s emotions and possible sadness. It requires a level of kindness about the other parent that may be hard to express, but the child needs to hear. Above all, it requires that both of the parents do their very best to show kindness under trying circumstances.

If you had a Divorce Coach on your team during the Collaborative Divorce process, reach out to that person. You will likely find that a short conversation will go a long way toward helping you show empathy and kindness to your ex-spouse and your child, which will only help the child in the long-run. It will also help you to have a safe and joyous holiday season.

This pandemic has been devastating for many families. You may know people who have been sick, or you may know families who have lost loved ones. The emotional strain today is tremendous. Families who are already contemplating divorce are under even more stress and, likely, significant household tension. Unfortunately, the pandemic has also impacted the judicial system, limiting families’ ability to take advantage of the in-court process to divorce or legally separate.

Oregon’s most respected Judges are concerned about the court’s long-term backlog caused by the pandemic. Washington County Circuit Court Judge Janelle Factora Wipper told the Oregon State Bar Bulletin that”‘[c]ases are backing up. At some point, we know we’ve got to deal with the backlog, but we have no clue when that’s going to be, or any sort of returning to normal.” The case backlog will worsen as new cases are filed, noted Oregon Chief Justice Martha Walters. (Bring in the Jury, Cliff Collins, Oregon State Bar Bulletin, Vol 80, No. 10 at 30 (August/September 2020.)) The pandemic has also created a backlog of cases that will prevent divorces and separations from being heard on time. In Multnomah County, Oregon’s largest county, non-emergency domestic relations matters (i.e., divorces) will not be set for trial until January 2021, meaning that divorces filed with the court during the last eight months will only start going to trial in January at the earliest and most will not be heard until well into 2021. This backlog is expected to continue with the courts for the foreseeable future. (See https://www.courts.oregon.gov/courts/multnomah/Documents/Multnomah%20Covid%20Information%20Sheet%209.18.20.pdf.) 

Families contemplating divorce consider Collaborative Divorce over the traditional court process to avoid the stress and burden associated with the court’s backlog. Collaborative Divorce is an out-of-court process that allows the family to self-determine the divorce outcome through the collaborative team’s support, is an excellent alternative to litigation. The Collaborative team includes the clients, the attorneys, and possibly a Divorce Coach and Financial Planner (depending on the family’s needs.) The family commits to sharing information and working together to protect their children and equitably distribute assets. The attorneys support the family throughout the Collaborative Divorce process.

Most importantly, for the family, the process also works on the family’s schedule, rather than the court’s calendar. Families do not need to wait for the court to act. The family can work with the team to move the process forward.

This pandemic will impact divorcing families long after the immediate health dangers are resolved. Families that choose the Collaborative Divorce process can help minimize some of the stress from the judicial system’s delays.

For more information about the Collaborative Divorce process, you can review the Collaborative Divorce section of Clarity Law’s site or visit the Oregon Association of Collaborative Professionals https://collaborativepracticeoregon.org/collaborative-divorce/.

 Be safe and stay healthy.

The Buffy the Vampire Slayer episode, Hush debuted just about 21 years ago. Slate magazine reminded me about the episode and upcoming anniversary yesterday. I’m a huge fan of the episode because it still gives me the hee-bee jee-bees. If you’ve not seen it, it’s worth the 48 minutes or so. In Hush, the bad guys, called The Gentlemen, come to Buffy’s town of Sunnydale to steal still-beating hearts from unsuspecting victims. The victims cannot scream because the entire town’s voices are stolen to allow The Gentlemen to be undiscovered. Buffy, with the help of the Scooby Gang, learn to communicate without words to defeat the gentleman and regain their voices.

Slate’s article addressed the question of communication, the episode’s central focus. The article focused on verbal communication’s importance. The show emphasized non-verbal communication. Both the article and the show remind me that face-to-face, verbal and non-verbal communication are part of successfully getting through a challenging experience. Of course, divorce and post-divorce communication are challenging. Learning to successfully communicate with your soon-to-be ex-spouse, especially about ongoing child custody issues, is key to success. As a Collaborative Divorce professional, I know that the Collaborative Team is key to this success.

 Divorce is emotionally stressful, and stress inhibits effective communication (especially when contact with a spouse may have led to the breakdown of the marriage.) In custodial disputes, the stress undermines the parents’ ability to engage in dialogue about their needs and the children’s needs. Responses are driven by emotion. Neither side effectively hears the other. The voices might as well be stolen.

 But, the Collaborative Team, much like the Scooby Gang from Buffy, can help the parents understand the feelings, work through the emotions, and communicate effectively to resolve the Divorce. Hopefully, the team will also give the parents the ability to continue to communicate effectively as the needs and interests of the child change.

 The Collaborative Divorce Team, which includes the Divorce Coach, attorneys, and the parents, meets together. During the meetings, the Coach and the attorneys help the clients identify their primary interests. The team helps the clients talk to each other about why these interests are important. Each parent and the team member can see the non-verbal responses to statements – allowing unsaid interests to be addressed. The Coach and the attorneys also help the clients understand the children’s current and ever-changing interests. Collaborative Divorce is a forward-thinking process. The child’s needs and interests will change. Hopefully, the Collaborative Divorce team can help the parents learn to communicate effectively as those changes occur.

 The Collaborative Divorce team is like Buffy’s Scooby Gang. The team helps the parents read each other’s non-verbal cues during the team meeting and learn to verbally communicate with each other while trying to parent their child. Objective communication is key to success for a divorced family. The family should rely on their own Scooby Gang to have success in the future.

No doubt that COVID has been hard on all of us – especially for children of divorce. COVID parent’s  ability to spend time with both of their parents and overturned carefully cultivated parenting plans. I cannot tell you how many stories I’ve read about from attorneys who are seeking advice from colleagues about how to enforce parenting plans that have been upset by COVID. The parents seek judicial enforcement of their settled, court-ordered parenting plans, but the courts are unable to set hearings to enforce those plans due to COVID. Unfortunately, parents often run to court when parenting plans are disrupted, even outside of COVID. This creates ongoing litigation over the children, which is not in the children’s best interest.

I cannot help but feel that the process let these families down. Acrimonious divorces happen, and, unfortunately, anger undermines the parent’s ability to work together to discuss parenting options. Instead, it appears that many parents are asking their attorneys to file motions because COVID has undermined the parent-child relationship (although I believe that some parents and attorneys would assert that one parent is using COVID as an excuse to purposefully harm the parent-child relationship of the other parent.) 

COVID is an extreme example of an unforeseen event. But, in every divorce involving children, there will be unexpected events because children are unpredictable. Their interests change. Their activities change—their relationship with their parent’s change. Any parent who can predict a child’s changes has some sort of magic crystal ball that they must share with all other parents.

There are two lessons to be learned from these situations:  (1) it is impossible to plan for all scenarios when putting together a parenting or joint custody plan; and (2) the divorce process needs to anticipate the possibility of lesson one.

Too often, divorce judgments involving parenting plans do not include a way to address unforeseen events. When a divorcing couple puts together their parenting plan, they must have a tool to manage unexpected events in their divorce judgment.

There are multiple options for parents. First, parents  should be to talk to each other and agree about a change in the parenting plans. Any agreement could be informal if it’s short term, or formalized into an Amended Judgment if it is something more permanent.

If the parents cannot informally agree or their relationship prevents them from even having a productive conversation, the parents should consider mediation as second option. Mediation is a voluntary, confidential process that allows you to resolve your parenting conflict with the assistance of an impartial third party. The mediator helps empower the parents to reach mutually acceptable solutions, even when the relationship has a lot of friction. Parents could plan for unforeseen events by including an agreement to mediate in the initial divorce judgment, which would allow for a process to address unexpected circumstances before the parties go to court.

 I also advocate for parents to use the Collaborative Divorce process at the outset to get divorced in the first place. The process gives the parents a support team to make it through the divorce. Also, the initial divorce judgment could an agreement to re-form the Collaborative Divorce team if the parents can come to an agreement when facing an unforeseen circumstance. The team will then work with the parents to agree to any necessary changes that need to be made to the parenting agreements. Again, any subsequent agreement could be informal if it’s short term, or formalized into an Amended Judgment if it is something more permanent.

All parenting plans will face unforeseen circumstances. The parents should plan ahead about how to address these unexpected circumstances in their original divorce judgment and should use either mediation or Collaborative Divorce as a means to avoid constant and ongoing litigation.

Spousal support (otherwise known as alimony) is one of the most challenging issues to discuss during your divorce, especially when the spouses are likely in different financial positions – with one making more money and the other providing support to the household in other ways. The lower-earning spouse may be afraid for the future. The higher-earning spouse may not want to continue to support the ex-spouse longer than needed. They are, after all, looking to end the relationship.

How then do you determine spousal support? The divorce process you choose will likely determine the answer.

If you choose the litigation process, the law, not you and your spouse, will drive the range of support that you may receive. Under Oregon law, there are three types of spousal support in Oregon:  transitional, compensatory, and maintenance support. Transitional support allows one spouse to transition into the job market and become self-sufficient. Compensatory support pays the spouse who made significant contributions to the other spouse’s education, training, or career.  Maintenance support helps make up for a wide disparity in earning capacity between the spouses and provides an ongoing supplement to one spouse for a short or long duration. In determining the level of support, the judge is going to apply a series of factors to determine the duration and level of support – all of which include any factors that “the court deems just and equitable.” ORS 107.105(1)(d)(A)-(C).

In litigation, your attorney may advise you to settle the case based on an expectation of what a judge will do, compared to what other judges have done in similar circumstances and who have applied these different factors and also based on rules of thumb used by the attorneys. Depending on the attorney’s negotiation skills, you may end up with a reasonable settlement – but, regardless, the decision will be driven by the attorneys and the legal process.

Litigation is a top-down approach – where you are at the end of the decision-making process. In comparison, the Collaborative Divorce and Mediation processes empowers you to control the spousal support decision-making process.

Collaborative Divorce and Mediation are both forward-looking processes and rely on information that is immediately at hand. For example, it makes sense to start discussing support with a realistic budget for each spouse. In Collaborative Divorce, the family can use their Collaborative Team to evaluate their short and long-term needs and determine an appropriate resolution for them. In mediation, the impartial third party can help guide a discussion about the short and long-term needs. The spouses share all information, and everyone can evaluate what is available for spousal support.

Spousal support conversations are not easy. It’s natural to be afraid about the financial future. But, as both parties look to have these difficult conversations about financial support, they must share their budgetary needs and interests. Open and frank discussions about financial interests, supported by the Collaborative Team or impartial mediator, may open up productive discussions about the amount of support and how long the support will continue. The family drives the support conversation. Collaborative Divorce and mediation both encourage an open dialogue on these difficult questions and empower the clients to come together to make difficult decisions.