Tag Archive: financial professionals

1. “The Good Karma Divorce” as a Prescription for Successful Collaborative Family Law Outcomes

   August 3, 2012 9:08 am Leave a Comment

   

   By Meredith Cox

   In addition to all the bad things we associate with the advent of television, there is another item to put on the list. All the lawyer shows have fostered unrealistic expectations about the legal system. Television judges always seem to get “it” and they only need an hour to do so. They are always banging gavels to signify a decision has been made. Then people start hugging and shaking hands. The halls of justice are not constantly echoing with the sound of gavels and quickly dispensed rulings. The judge does not always assess the situation with the same standards of fairness as clients. This is largely why lawyers can never predict what will happen in court.

   The Good Karma Divorce is an excellent resource for anyone going through separation and divorce. As a family court judge, the author, Judge Michelle Lowrance, understands better than most why going to court is not the best option for couples. She debunks the myth that there exists a “non-discretionary standard of justice that is not dependent upon the judge’s personal values.”

   I know this all too well because I argued a hotly contested motion before a judge, who wrote out his ruling in my client’s favour before he realized he knew a relative of one of the parties. He advised us he was stepping back from the case. We went down the hall to argue the same case in front of another judge. The result was completely different. We were not successful. Same facts. Same materials. Same family. My client was gobsmacked. My competitive side was irked. No one likes to lose, but even more to the point, I learned a valuable lesson about the justice system.

   Another myth destroyed by Judge Lowrance is the notion that the judge can solve everything simply by virtue of his or her exalted position using special powers. The gavel is not a magic wand. We need to be aware that a trial decision is not the wonderfully cathartic experience we all believe it will be. Clients do not leave the court room unscathed. They limp out exhausted, emotionally depleted, imbued with renewed animosity and a lot lighter in the wallet. Moreover, the blistering aftermath of a family trial can endure for years. People remember what the other person said about them in court. Generally, testimony is not flattering and sometimes people take serious liberties with the truth.

   Family law trials are about law and not about punishing the perceived wrongdoer. In our no-fault divorce system, you don’t get to bring up adultery and watch your spouse get yelled at. Because we have watched our parents disciplining our sibling offenders with time-outs, lectures, disappointed head shaking and raised voices, we anticipate the judge, who operates with similar authority, will treat a spouses indiscretions and misdemeanours with like aplomb.

   The Good Karma Divorce gives us a comprehensive four point prescription. First, you need to develop a personal code of conduct to guide your behaviour in the face of conflict and around your children. Second, put a harness on the negative emotions that swirl around – criticism, anger, blame, resentment, etc. Throw forgiveness and apologies on the fires of conflict. Third, prevent collateral damage to your children at all costs. Children do not just forget all the ugly details. Not all children are resilient. It takes an incredible amount of effort and forbearance to raise healthy, well-adjusted children. Do not make them take sides… ever. Fourth, you must not give up when you are tired of negotiating. Never assume you are the only one compromising or that your lawyer folded in your darkest hour. This is the point where you have to dig deep.

   Judge Lowrance wants us to view divorce as an opportunity for personal transformation and not a total failure. An awareness of karma as a force presents the ability to alter your life by changing thoughts and actions. Despite the belief that our brains are fully developed by the time we are adolescents, the experts now know the brain can evolve and change its structure. The scientific word for this phenomenon is called “neuroplasticity.” This is an emerging area for collaborative teams of family lawyers, mental health professionals and financial professionals. Part of the theory is that if we anticipate, manage and understand how the brain works in stressful, trigger-laden situations, we can achieve better outcomes for families.

   The good news in all this is even if you only adopt some of the recommended behaviours successfully, you can improve your brain’s functioning. It is more like a lifestyle than a diet where you have to do it all perfectly. You can adopt the principles at any time during and after negotiations. We always hear the saying “it takes two to tango.” When just one of the parties begins to apply the basic tenets, there can be a benefit for all involved. I took heart when I read this because I kept thinking how difficult it might be to get both parties on the same page at the same time. Karma? What is that anyway? Isn’t that just for New Age self-deceiving freaks trying to comfort each other in the face of evil?

   The Good Karma Divorce holds out the promise of finding a place of composure, wisdom and bravery with an easy to follow recipe. There is a judge in our region who orders parties to read certain books and prepare summaries of what has been learned to send to the other side. This book should be recommended reading for every couple and every family lawyer on the road to separation and divorce with regular reviews to ensure the learning stays imprinted on our collective psyches.

   As a dispute resolution process, Collaborative Family Law offers a forum for separating couples to learn important life skills, prevent more harm to the family and get on with the business of negotiating from a place of enlightenment.

   Regards,

   MEREDITH G. COX | Principal
   B.A. (Hons), J.D., LL.B.
   Barrister & Solicitor, Collaborative Family Lawyer and Mediator
   SWEATMAN LAW FIRM
   1400 Cornwall Road, Unit 11 | Oakville, ON L6J 7W5
   T.905.337.3307 | F.905.337.3309

2. The Collaborative Team: Does the Financial Professional just act as a number cruncher?

   May 22, 2012 3:07 pm Leave a Comment

   

    

    

    

    

   by Bronwen Bruch, BMath, CMA, FDS

   The answer to this question would be sometimes; but not always. A Financial Professional can fill many roles on a Collaborative Family Law file.

   1. Collecting financial data from the clients, and preparing and presenting financial statements to the rest of the Collaborative team.

   2. A Neutral. Some Collaborative Family Lawyers find having a neutral in the room to facilitate the discussion, enhances the Collaborative process. Both Financial and Family Professionals are called upon by lawyers to come to the Collaborative table as the neutral. A Financial Professional in this role can also provide creative solutions to some of the financial issues that can frequently become obstacles to resolution.

   3. Develop long term forecasts based on alternative financial scenarios, as opposed to short-term snapshots. This takes the guess work out of the numbers for the separating couple; which in turn reduces the fear about their financial future. This has proven time and time again to be a very effective tool when resolving financial issues that are long term in nature. Examples of these are investments, debt reduction, purchase and sale of homes, retirement planning, and post-secondary education costs for children.

   4. Analyze and discuss the financial ramifications of alternative settlement options. An example of this is tax consequences of their financial decisions. Clients need to know how their decisions can affect their tax situation as well as their access to government benefits.

   5. Financial Mediation. A financial professional trained in Family Mediation is able to mediate all or some of the financial issues with the clients.

   So it seems that a Financial Professional can be more than a number cruncher when asked to work on a collaborative file. Their toolbox is full of many tools that are essential to resolving financial conflicts that come up in the separation and divorce arena.

   Bronwen Bruch, BMath, CMA, FDS

3. Finances go beyond Valuation Date

   April 10, 2012 2:02 pm Leave a Comment

   By Bronwen Bruch

   It seems so simple! Divide the property in half, use the guidelines to calculate spousal support, and use the tables to calculate the child support. How difficult could that be?

   Unfortunately it is like when you are told that all you have to do to lose weight is to “diet and exercise.” Again, the concept seems simple enough. But as many of us know, you quickly find out there are obstacles that get in the way of your success when you go at it alone.

   The same goes for separating couples and their finances. The good news is that they don’t have to go at it alone. In the last decade, a different kind of financial professional has come on to the divorce scene. They are Financial Divorce Specialists (FDS) or Certified Divorce Financial Analysts (CDFA). Applicants for either accreditation must already have a recognized professional designation in accounting or financial planning. Financial professionals that have an affinity to conflict resolution may also choose to be trained as mediators. And financial professionals that would like to be part of a Collaborative Law Practice Group are required to take the same courses on collaborative procedures that are required of the collaborative lawyers. However, what all of these financial professionals have in common is that they are all able to provide clients with a thorough evaluation of the financial ramifications of divorce settlement options. This is of benefit to the process because the client is being asked to make irrevocable financial decisions during an emotional roller coaster ride.

   That is why more and more lawyers, call on these financial professionals to assist their clients in arriving at a settlement. The lawyer may not feel comfortable giving out some types of financial advice. And it isn’t always cost effective; or they aren’t always able to take the time to analyze the future financial impact of alternate proposed settlements, or educate a client that has less financial knowledge.

   These financial professionals:

   1) Can work with the spouse that is less knowledgeable financially, so that they come into the negotiations on equal footing
   2) Organize financial data that comes in from both spouses and prepare various financial documents, and
   3) Prepare financial scenarios around future cash flows and net worth

   Financial issues in a divorce can be a challenge. This is exaggerated by the emotional turmoil the couple is experiencing. They say that for married couples, financial stress will magnify any bumps in the road ten-fold. So for separated couples, it follows that the financial stress, will be that much worse.

   When trying to put together the “dreaded” financial statements or budgets for your lawyer or looking at your spouse’s financials, it can trigger feelings of anger, mistrust, fear and inadequacy. This explains why a client may freeze in the middle of this process. The financials then go on the shelf until the client is ready to face those numbers or “emotional triggers” again.

   Individuals, couples, lawyers and family professionals that are interested in “collaboration” enlist these financial professionals. Their approach to a legal settlement includes the usual analysis of the “Valuation Date Needs.” However, there is an additional component which is the analyses of future financial needs. We know that financial stress is compounded by fears about your financial future. In a separation, there is the added resentment that the other spouse will be unduly better off. Adding this future component to the analysis can reduce these fears and resentments, which will help bring the settlement to resolution sooner, which in turn will save time and money for all involved.

   Bronwen Bruch, BMath, CMA, FDS
   Certified Management Accountant
   Financial Divorce Specialist
   Family Mediator

   The Tax Management Centre
   14-2530 Sixth Line, Oakville, ON L6H 6W5
   T: 905-257-6528 F: 905-257-4221

   bbruch@taxmanagementcentre.com
   www.taxmanagementcentre.com

4. Lessons for Collaborative Clients and Practitioners

   February 15, 2012 9:55 am Leave a Comment

   
   by Diane Daly
   In many years of collaborative practice, I’ve had only one really, over the top, bad experience with another collaborative lawyer. A lot of files have been challenging for sure, but only this one stands out as absolutely over the top bad. And the first thing you think as a person who has separated is, “why is she telling me this bad news story?” “Why would I want to consider Collaborative Practice as a means of negotiating a settlement with my spouse?” Because the story illustrates two points:

   First, it was one bad file in about nine years of Collaborative Practice – that’s pretty good, especially when you consider the number of bad files family law lawyers have in litigation – I can’t begin to count them in 22 years of practice, there are so many!

   Second, it illustrates the importance of choosing your collaborative practitioners wisely.

   Here is the “Reader’s Digest” version of my story. I and another “collaborative” lawyer (I’ll call her Jane) set up and attended two or three four-way meetings with our respective clients. We exchanged most financial disclosure and were just getting down to the details of settlement, when Jane tells me (at a Christmas party, no less) that her client has asked mine to meet at Jane’s office and sign a draft separation agreement that Jane had prepared, outside of the collaborative process, based on her client’s instructions.

   The agreement was a horrible deal for my client, who was being pressured by spouse and children, also outside of the collaborative process. I pointed this out to Jane who knew the situation. Well trained collaborative practitioners understand that people don’t always behave well. It’s human nature. People are being asked to put their best foot forward at one of the most difficult and stressful times in their lives. It’s just not realistic to expect perfect behaviour all the time. As collaborative practitioners, we have to deal with that in a non-judgmental way, within the process, and still advocate on our client’s behalf. By virtue of the Participation Agreement that clients sign, and collaborative practitioners confirm, we are bound to withdraw from the process if a client’s behaviour lacks honesty and integrity. In this situation, I pointed out to Jane how inappropriate this was from a collaborative process perspective, not to mention the fact that it was a serious breach of professional conduct to have a vulnerable person sign an agreement at her office, without the benefit of independent legal advice. Well, it happened anyway. I found out that my client had gone to the other lawyer’s office and signed the separation agreement. I called Jane to tell her what I thought of the tactic and her response was that her client wanted her to do it, so she had to.

   It was a terrible outcome – not only because it was so unfair to my client, but more importantly, because my client wasn’t happy with the result. It was just a case of not being able to deal with the stress, and being bombarded with pressure, outside of the collaborative process.

   Jane’s behaviour in that process was inexcusable. But the really good news is that Jane is truly the exception. The vast majority of lawyers, mental health professionals and financial professionals who practice using the collaborative model have a genuine desire to assist their clients in a dignified, respectful, non-adversarial way, and with the very utmost of integrity. Our credo is “Resolving Disputes Respectfully” and we live by that.

   The anecdote begs the question, “how do I choose a collaborative practitioner, be it a lawyer, mental health professional or financial professional?” So here are a few pointers:

   1. Ask about their training. Most Collaborative Practice groups require their members to have a minimum of five days of basic training. But ongoing, continuing education is absolutely critical.

   2. Ask how long they’ve been practicing collaboratively? How many collaborative files have they done in that period? If they’re just starting out, they may only have their basic training and done only a couple of files. And that’s okay. Everyone has to start somewhere and the beauty of the collaborative model is that dedicated collaborative practitioners exchange information. We meet to talk about our cases (on a no name’s basis, of course). We mentor each other. We do not take advantage of the other client’s or lawyer’s mistakes. We strive for agreements that emphasize a “win-win” approach. If your collaborative practitioner has been around for five years and never taken anything but the basic training, and has had only two collaborative files, you might want to have a frank discussion with them regarding their commitment to the process.

   3. Ask whether your practitioner is a member of a local collaborative practice group. Do they attend group meetings? Do they attend any of the collaborative conferences? Do they demonstrate commitment to the process by working to develop and improve the process in their community and with other collaborative professionals?

   4. If it’s a collaborative lawyer you’re looking for, ask them how much litigation they do? Many collaborative lawyers do some litigation, of course, but if most of their files are in court, you should at least discuss with them why and get some feel for their commitment to the collaborative process.

   5. Most importantly, trust your instincts. Whether it’s a collaborative practitioner or a litigator, you need someone who is on the same page philosophically as you are. Your collaborative practitioners are part of your team, and you need to be comfortable dealing with them.

   Diane F. Daly
   Collaborative Lawyer, Mediator & Arbitrator

5. A Recipe for the Collaborative Process

   February 1, 2012 11:44 am Leave a Comment

   by Meredith Cox

   I have to get on the bandwagon and write about the latest news about Seal and Heidi Klum. They were the celebrity couple that was going to make it. Their marriage seemed perfect…to the outside world. They are two extremely talented parents with four adorable children. The first comments to hit the tabloids were from Seal. He was still wearing his wedding ring and said he loves his wife. From one report I read, it sounded as if Ms. Klum was not so quick to take off her ring either. The couple is known individually and collectively for extremes of beauty and lyricism. If their early statements and conduct are any indication, we can expect them to set the diamond standard for separating couples everywhere. We will just have to wait and see how this unfolding story turns out.

   I started to think about my ideal recipe for the Heidi Klum/Seal collaborative family law process and what I would say if one of them came to my office:

   1. Start with the foundation of the collaborative process. Understand what you are agreeing to do. It will not be like an episode of The Good Wife. No one is going to get off on a technicality. You will not be finished in one hour with commercial breaks. It took time to get in this mess and it will take time to unravel it.

   2. Bring a healthy serving of love, caring and/or respect to the table. It can be one without the other two.

   3. Be aware that being concerned about the other person’s well-being is not a bad thing. Be generous. Stretch a little even if you are mad or disappointed.

   4. Really think about how your children are going to fare. This requires you to put them first before your own agenda. I mean “FIRST.” What you do now will be forever in their eyes and hearts. You are setting the example that will govern their conduct in relationships.

   5. If you have done something really bad in the eyes of the other person, own it and apologize. Deal with it up front and move on. If you do not do this, expect the issue to hang over the bargaining table like an overflowing compost bin.

   6. Do not refuse to give relevant information to the other person. If you do, there will be lingering doubts. The minute the phrase “none of your business” enters the discussion the other person will be hurt, suspicious and angry. Progress will grind to a halt.

   7. Watch your language. You do not need to score points with verbal swordfights. Think about how you would like to hear the message you want to deliver.

   8. Do not be shy about the time or costs of involving family professionals and financial professionals. They are there to support you, create options and provide vital information. Ultimately, their input will be critical to your success. If you do not know what they can do for you, ask.

   9. Listen to your lawyer. We are there to advise you and help you make decisions.

   10. Above all, use your own brain. Think. Be prepared to offer options and solutions. Do not allow this to just happen to you. No one will make the decisions for you. You are part of the process. It is your divorce or separation. It is your family. It is your future.

   Meredith Cox
   Sweatman Law Firm

   11-1400 Cornwall Road

   Oakville, ON L6J 7W5

   Profession: Family Law Lawyer
   Tel: 905-337-3307
   Fax: 905-337-3309
   meredith@sweatmanlaw.com
   www.sweatmanlaw.com

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