Diana Telfer

One year ago this month, I stepped into my dream of establishing an integrative family law practice.  I made the decision to shift from a litigation model to offering out-of-court resolutions where my clients have the option to work with mental health professionals, financial neutrals, and various other professionals in reaching the best possible outcome for their families.   My practice now offers collaborative divorce, mediation, unbundled services, and assisted settlement negotiations.

Since 2009, after my second divorce, I realized how transformative divorce could be.  I wrote about this in my first blog article but sometimes we are faced with a life experience that utterly breaks us.  This can be in the form of a life-threatening illness, a death, lost job, divorce, or breakdown of an intimate relationship.  For me, my second marriage utterly crushed me emotionally.  But that experience forced me to look at myself, figure out the beliefs, patterns, and choices that no longer served me.  I figured out who I was through diving deep into my beliefs, searching various spiritual philosophies, exploring Jungian archetypes, attending therapy, and writing into my pain.  It was a difficult soul journey, but it opened my eyes to the opportunity that divorce offers in finding oneself and one’s life purpose.  From this experience, I dreamed about approaching my law practice from an integrated/holistic perspective addressing the whole family system.  I realized that my family law clients could benefit from an integrated team approach that involved working with collaboratively minded attorneys, mental health professionals, financial advisors, mediators, vocational advisors, spiritual advisors, meditation teachers, and other professionals.

In the 1970s, many medical professionals embraced a different approach to medical care, recognizing the need to treat the whole human system (mind/body/soul).  The United States saw the introduction of meditation, acupuncture, Chinese medicine, homeopathy, naturopathy, biofeedback, reiki, massage, yoga, yoga nidra, shamanism, and many other practices.  However, these practices were shunned by the traditional medical profession.  Yet, 40 years later many of these practices have become mainstream. Courses in mindfulness, meditation, and yoga are now taught in medical and business schools worldwide.

I find that the legal profession is in a similar transition period right now.  There are many alternative dispute resolution approaches to divorce, custody disputes, and other similar family law disputes where couples resolve their dispute outside of court.  Some of these approaches have been around for 30 years.  For example, mediation as an alternative to resolving issues in court started in the late 1970s/early 1980s.   Yet, Utah did not adopt the mandatory divorce mediation program until 2005 and the Uniform Mediation Act until 2006.  Now, a trial in a court divorce proceeding cannot be scheduled unless the parties have attended at least one session of mediation.  In 2010, Utah was the first state to adopt the Uniform Collaborative Law Act [1].  However, the majority of the public does not know this approach exists and few attorneys in the state are trained in collaborative law.

Last year, I stepped off the “cliff” and dedicated myself to offering integrated approaches to resolving family law disputes outside of court. I still litigate issues at times, but my focus is helping clients discover a better way to divorce.  What has been surprising is the reluctance and confusion from clients and other attorneys that I have experienced over the last year.  Many clients respond when I inform them that my role is to help them reach a resolution outside of court with “Well, I don’t want to go to court.”  But others assume their case will have to be litigated and they do not see a possibility of resolving their case out of court.

This year has been full of unlearning much of my legal training and redefining my role as an attorney.  My approach recognizes the emotions that steer decision-making.  Time is taken to explore what really matters to my clients.  It does not shy away from conflict. It recognizes conflict as a means of discovering what really matters.   When conflict exists between two people, it is because something of value is being threatened.  How can parties reach their best possible settlement outcome without fully understanding what really matters to each individual?

It is a challenge to shift away from the traditional approach to conflict resolution and family law litigation. The easy path is to follow what has been done before.   But it has been incredibly rewarding to work with divorcing couples in this new way. To witness couples signing agreements satisfied with the results.  Couples who each feel heard and have confidence moving forward.  I have no regrets in choosing a path that focuses on integrated approaches to family law disputes.

[1] A true collaborative divorce is a complete paradigm shift where the parties and attorneys commit to full disclosure, transparency, and a focus on the needs and interests of the parties rather than the rights and obligations recognized under the law.

“Feare no more the heate o’ th’ Sun,
Nor the furious Winter’s rages.”
– William Shakespeare

As with any devastating storm, your divorce can often leave a path of destruction.  Feelings of helplessness and despair regularly take over.  Fear prevails.  Anger may ensue. Must it be this way? “NO.” Can you avoid it?  The answer is an affirming “YES.”

The key to weathering any storm is preparation and planning.  Aesop’s fable, “The Ant and the Grasshopper” illustrates this point artfully.  The fable begins one summer day when a Grasshopper, who is hopping and singing to his heart’s content, comes across an Ant.  The Ant is working hard carrying an ear of corn to his nest when the Grasshopper suggests he join in his frolicking.  The Ant answers, “I am helping lay-up food for the winter and recommend you do the same.”  The Grasshopper responds by saying, “Why bother about winter?”  When winter comes the Grasshopper finds himself without food and dying of hunger while he watches the Ant distributing corn and grain from his stores.  At this point, the Grasshopper realizes only too late that “It is best to prepare for the days of necessity.”

Preparation and planning will be essential in reducing the conflict and stress that so often overshadows divorce.   Once the decision to divorce has been made, take the time to prepare mentally, physically, emotionally, and spiritually for what is about to unfold.  Explore your feelings and motivations.  Identify your wants and needs.  In his article entitled “Waging War Against Procrastination,” Dr. Bill Knaus points out that “Decisions are affected by the preparations you take prior to taking any action.”

Divorcing couples so often forget that they are the most critical piece of the divorce process.  Retaining the right attorney and/or mediator will be important.  However, you and your spouse will be setting the tone of your divorce.  You will be making the decisions.  Most importantly, you and your spouse will be the ones having to live with the final resolution.  Taking the time to reflect and gather information will be instrumental in keeping you focused.  It will lessen the chance of being driven by emotionally based decision-making.   It will help you “keep your eye on the ball.” Remember that even if a judge is left to make the ultimate decision as to your divorce, the choice to proceed to trial is yours.  Why choose to leave the determination of your life to a stranger?

Prior to retaining an attorney, take the time to complete the following few steps that I refer to as P.L.A.N.S.  This is best done as a couple, but it can still be effective if done on an individual basis as well.

Step 1:  PINPOINT the issues in your divorce.  The following issues are among those most addressed in divorce.

• Child-Related Issues
  • Who will have decision-making authority (legal custody) relative to your children?
  • Where will your children live?
  • How should the time with your children be shared between each parent?
  • How much in child support will there be?
  • Who will cover the medical, dental, and vision insurance for the children?
  • Who will be responsible for paying the out-of-pocket expenses including premiums, medical expenses, dental expenses, orthodontia, mental health, and vision expenses?
  • How do you want to handle the participation, transportation, and payment of the extracurricular activities for your children?
  • Who should be responsible for paying school fees including private school tuition, tutoring, or other fees?
  • Do you want to create or maintain educational funds for your children?
  • How will you handle college related payments on behalf of your children?
• Alimony and Other Related Issues:
  • How much income does each of you earn a year?
  • What will your monthly expenses be during the divorce and after divorce?
  • Does one of you need additional financial support from the other spouse?
  • How long will that person need additional financial support?
  • Who will cover health insurance during the divorce? Where will each of you get health insurance coverage after the divorce? How will it be paid?
  • Should you get or maintain life insurance on our lives while the children are minors?
• Property and Liabilities:
  • What real property do you own?
  • Who will get the property and who will pay for it?
  • How do you handle the marital home? Does one of you get the home or do you sell it? Who will pay the mortgage on the home?
  • For the moving spouse, where will you live during the divorce and after?
  • What is the value of your real property?
  • How do you handle joint bank accounts during the divorce? Do you maintain or close them?
  • How do you want your debts and other obligations to be paid (e.g., mortgages, auto loans, auto insurance, credit cards, and other loan obligations)?

Step 2:  LIST your marital assets and liabilities that may include the following:

• What do you own as a couple?
  • Real property
  • Automobiles
  • Recreational vehicles
  • Personal property
  • Bank accounts (savings, checking, money market, etc.)
  • Education savings accounts
  • Investment accounts
  • Retirement accounts
  • Life insurance policies
• What debts do you share as a couple?
  • Mortgage, home equity loans, HELOCs
  • Personal loans
  • Automobile loans
  • Student loans
  • Credit cards; and
  • Any other liability.

Step 3: ASSEMBLE all documentation. You must verify your incomes, assets, and liabilities. You may need to contact your accountant or financial advisor to help you with this step.  Documents may include monthly statements, titles to property, copies of policies, billing statements, tax returns including W-2s, 1099s, and K-1s, and other supporting tax schedules and attachments, appraisals, property tax assessments, financial statements, and loan applications.

Step 4: NOTE the issues that are most emotionally charged for you and your spouse.

Step 5: START writing down the ideal outcomes.  First, begin by imagining the ideal outcome from your perspective.  Write this down.  Second, imagine the ideal outcome from your spouse’s perspective.  Write that down.  Third, identify where the areas of agreement and disputes will likely be.   As part of this process, consider looking at the areas where compromises may be made.

These exercises will not only help you with getting organized but are also intended to help you see the divorce from each side’s perspective.   As the wise Chinese military general, strategist, and philosopher Sun Tzu once said, “If ignorant both of your enemy and yourself, you are certain to be in peril.” Know yourself and know your spouse.  By viewing the situation from both perspectives, you will be better prepared for finding a resolution.

Following the steps above will be well worth your time.  You will be in a much better position to face the winter storm of divorce.

See Also

Today’s blog provides a question rather than answers.

In his book, The Sacred Enneagram, author Christopher L. Heuertz writes that our limitations, destructive patterns, addictions, or other seemingly unpresentable parts are invitations “to return to what wounded us as children so that our eyes may be opened to the gift of who we are and who we can become.”   Mr. Heuertz has spent his career understanding the Enneagram of Personality.  If you have not heard of the Enneagram, it is a tool that has been around for thousands of years.  As Mr. Heuertz explains, the Enneagram offers nine personality types that “explain the ‘why’ of how we think, act, and feel.”  He further writes “the Enneagram is a blueprint for developing character that each of us carries throughout our life, but one that we don’t open until we discover our type.”  The Enneagram types explain the strengths common in each type and also the “shadow” side of each type caused by childhood wounds. For instance, my dominant type is Type Six, the Loyalist.  It is the type that needs to be sure and certain.  At their best Sixes are a source of determination and strength. But often Sixes doubt themselves.  Type Sixes include individuals who were often raised in unpredictable situations that left them doubting and disbelieving.    The Enneagram is a complex tool that not only can help us understand who we are, the good and the bad, but also our incredible potential that is there to be uncovered.  Mr. Heuertz asks “are we suffering the pathology of how we were hurt or neglected in our childhood?  Is it because someone harmed us or is it because we actually need an obvious limitation as an invitation to give ourselves to our inner work?”

Here’s my question for you to ponder: What would happen if you perceived your destructive tendencies as needed gifts rather than limitations and invitations to discover who we are and who we can become?  

Last year the Association of Family and Conciliation Courts published some useful tools to help those sharing custody in the holiday season.

For the full Roadmap, visit their file here.

“1. PLAN EARLY:
If there is one piece of advice you take away from these guidelines, it has to be this one. If there was ever a holiday season that could not be successfully navigated by the seat of your pants at the last minute, it is this season. Consider travel logistics, your holiday traditions, events with family and friends and the parenting time schedule, as usual. Include an accurate assessment of applicable guidelines and possible tracing requirements and quarantine times based on protections needed in each household.

2. FOLLOW THE RULES OF THE ROAD:
Stick to your parenting plan or schedule as much as you can, if there is one. If not, start working out a plan. Communicate with your co-parent as soon as possible if you think your customary schedule, family gatherings or travel arrangements will have to change because of the virus.

3. AGREE ON A DESTINATION:
Be straightforward with each other about your goals for the holidays. Discuss how to have a holiday that is both happy and safe for everyone. Look carefully at the level of disease at any location where you might plan to go and also where you live. You have to consider if you could be carrying the risk from your home to another part of the country, as well as the infection and positivity rates present in the community you will be visiting. Will you be among people who are carefully observing the recommendations and rules (masks, social distancing, hand washing)?

4. PLAN YOUR ROUTE TOGETHER:
Talk about the where, when and how. Agree on how to proceed if you disagree. Find ways to resolve disputes with each other, a trusted advisor, a mediator or a parenting coordinator—always a preferable alternative to going to court. If the dispute continues, consider reaching out to a mediator, with or without an attorney, to resolve the issues before seeking court intervention.

5. DON’T BE AFRAID TO STOP AND ASK FOR DIRECTIONS:
Your particular situation may benefit from a consultation with an expert, who might be the family pediatrician (if the point of dispute involves health risks), a family therapist, or your lawyer.

6. YIELD TO HAZARD SIGNS:
Be prepared to abide by local, state and national instructions regarding health and safety as they are updated.

7. SLOW DOWN IF THERE IS CONSTRUCTION OR AN ACCIDENT AHEAD:
Be willing to take a step back, slow down and communicate about any new concerns that may arise related to health and safety.

8. BE OPEN TO ALTERNATIVE ROUTES:
This year is going to be an exception for everyone, not just coparents. Everybody is concerned about doing the right thing, which will lead inevitably to finding new ways to gather and celebrate. For some it will mean get-togethers only on Zoom; for others, there will be gatherings of limited size and limited time, with masks and social distancing. Consider holding any gathering outside, if the weather permits. If you must be indoors, good ventilation with doors and windows open is a must. Social and family connections will have to be balanced by safe behaviors and mitigating risk.

Above all and despite the extra complications of the circumstances, we wish everyone a healthy, happy and peaceful holiday season!”

“From leaders of the American Academy of Matrimonial Lawyers and the Association of Family and Conciliation Courts, groups that deal with families in crisis:
Susan Myres, President, American Academy of Matrimonial Lawyers (AAML)
Larry Fong, President, Association of Family and Conciliation Courts (AFCC)
Mindy Mitnick, AFCC President Elect
Matt Sullivan, AFCC Past President
Laura Belleau, AAML Second Vice President
Kim Bonuomo, AAML committee co-chair for AAML/AFCC program
Nancy Kellman, AAML committee co-chair for AAML/AFCC program
Jill Peña, AAML Executive Director
Peter Salem, AFCC Executive Director”

If you are a separated or divorced parent confused over your holiday parent-time schedule, you are not alone.  You would think figuring out when you have your children for a holiday would be straightforward.  Unfortunately, it is not so easy if your custody order follows the statutory holiday schedules.  Oftentimes, even attorneys are unable to agree on their interpretations of the holiday schedule.

The first step to figuring out what holiday schedule applies to you is looking at your custody decree or order.  You may have an order that specifically identifies the division of holidays with straightforward start and end times.  If so, count yourself lucky.  But it is more likely that you have a custody order that references one of the parent-time statutes (e.g. Utah Code Sections 30-3-35, 30-3-35.1, or 30-3-35.2).

The statutory parent-time schedules divide holidays between even-numbered years and odd-numbered years. Essentially holidays alternate between the parents throughout the year.  The statute lists the holidays assigned to the non-custodial parent (the parent who has less parent-time) in even and odd numbered years.  The custodial parent’s holidays in even-numbered years are the holidays assigned to the non-custodial parent in odd-numbered years.  In odd-numbered years, the custodial parent gets the non-custodial parent’s assigned even numbered year holidays.

The primary difference between the holiday schedules in Utah Code Section 30-3-35 and Section 30-3-35.1 is when the holiday ends.   In Section 30-3-35, holidays generally end at 7 p.m. the night before school resumes.  In Section 30-3-35.1, holidays extend through to the morning when school commences.  Let’s take the President’s Day holiday as an example.  The holiday typically involves a 3-day weekend with school resuming on Tuesday morning.  Under Section 30-3-35, the holiday weekend ends at 7 p.m. on Monday and under Section 30-3-35.1, the holiday weekend ends Tuesday morning when school resumes.

This is where it gets tricky.  Holidays include any snow days, teacher development days, or other days when school is not scheduled and is contiguous to the holiday. For instance, if school dismisses on Thursday before Martin Luther King’s birthday weekend then the holiday extends from Thursday through Monday at 7 p.m. or Tuesday morning when school commences, depending upon which schedule you follow.   If the holiday falls on a weekend or on a Friday or Monday and the total holiday period extends beyond that time and the parent is free to care for the children, then the holiday extends over the time school is out.   For instance, if a school takes off the week following President’s Day weekend, then the President’s Day holiday includes the weekend and the following week.  Parent-time would resume either at 7 p.m. the night before school starts or the day school starts.

There are other nuances to holidays, including when parent-time can commence.  The best advice is to use common sense.  Talk to the other parent to ensure you are both on the same page.  If you are not, reach out to your attorneys if you have one.   Holidays are difficult enough.  Fighting over the length of a holiday only adds to the stress.

Below are two easy to read charts outlining the holidays for each statute for your reference.

Holiday Schedule Under Utah Code § 30-3-35:

Holiday Schedule Under Utah Code § 30-3-35.1: