Are you considering divorce? If so, I hope this article will give you pause to think of the many different ways you could proceed, in order to obtain your objective. While every divorce will require some sort of court action to get the divorce finalized, not every divorce requires that you engage in litigation.
Imagine if you went to a doctor and they prescribed the same treatment that would have been prescribed in 1910, without considering any newer methods of treatment that might work better. Would you just take that doctor’s advice, or would you seek a second opinion? In my view, an attorney who sets every client up for a litigated divorce is like that doctor.
In 1910, there was no such thing as a “no fault” divorce. To get a divorce, a party would have to prove some evil or despicable act on the part of their spouse, such as adultery or habitual drunkenness or spousal abuse. The adversarial system of divorce was set up in this environment: one party would go to court to prove that the other was bad and convince the judge to grant a divorce based on that evil. The party at fault would also be punished in some way, such as by forfeiting alimony or losing custody of their children. The parties employed attorneys who were like gladiators, fighting on their behalf to prove their case to the judge, who would make a decision about who “won” the case.
There are still divorcing couples, and attorneys, who think in terms of this paradigm. In some cases, the parties are angry, bitter, seek revenge, and want to fight. They would rather spend their last dime on lawyers than see any dimes go to their former spouse. The model of litigated divorce will ensure that these parties get what they want, with plenty of pain and bitterness to share. In many other cases, however, divorcing spouses seek merely to disengage from the marriage in a way that is fair to everyone.
How can people obtain a divorce without all the fighting? Some people just decide to “call it quits”. They don’t use any helping professionals at all. Others may employ just one attorney to draft up their agreement and file the paperwork with the court to get their divorce. Sometimes, there is also the challenge that parties cannot agree on terms. So, some couples use a mediator to help them negotiate and then draft a separation or divorce agreement.
These solutions all help ensure that divorcing parties remain relatively amicable, but there is still the underlying issue of fairness. Some attorneys who advocate litigated divorces argue that it is the only way to ensure that everyone gets what they deserve. And truly, fairness is a deep concern. Going to court is not the only way to ensure fairness, however.
Certainly, divorce is complicated and has serious legal ramifications. Mistakes regarding alimony, pensions, child support, or health insurance can be very costly and difficult to fix. How does one ensure that a divorce, a very serious legal matter, is fair to everyone and leaves them in the best situation possible, given the circumstances? One good way is by using a team of collaborating professionals to guide the parties through this challenging process.
The collaborative model of divorce enables parties to separate (and divorce) in a way that feels fair, avoids wounding each other any more than necessary, enables them to continue work together and to parent their children as a team, and leaves each with financial and emotional resources to deal with the challenges of single life ahead. I believe so strongly in the collaborative practice model of divorce that it is the only one I will use. I am willing to mediate divorces, but only if the couple agrees ahead of time to consult with professionals as needed to ensure that their divorce agreement is as good as it can be.
When I did my IACP training in the collaborative model of divorce, the trainer used the example of a pit crew to teach how collaborative divorce works. Imagine a picture of a race car that has pulled into a pit stop. While the car is stopped, one member of the pit crew changes the tire; another changes the windshield wipers; and a third one changes the oil. The goal is to restore the car to great condition and get it back on the road as fast as possible. In the view of collaborative practitioners, the family during a divorce is like that car. Professionals are like members of the pit crew. Each professional has a discrete function that helps the family. Just like that pit crew, the collaborative professionals work as a team (all neutral), with just one goal: to get the family back on the road again and in good condition.
Each family, and each divorce, is unique. It may be that a team of professionals will not be needed. Some couples are able to reach agreement on all issues without help, and others may only need help with one or two aspects of their divorce. But in situations where outside experts would be helpful, the collaborative practice team can include child specialists (who can help develop a parenting plan), financial specialists (who can help with budgeting and support issues), divorce coaches (who can help with emotional adjustment), tax attorneys, even career counselors (who can help spouses who need a change of career direction to increase earning capacity).
When services of these professionals are utilized, those services benefit the family permanently: A good parenting plan will make visitation and custody arrangements run smoothly for years. A good financial plan will help ensure the fiscal integrity of each spouse. A good divorce coach will get the divorcing parties through the emotionally bumpy parts. A good career planner will get a displaced homemaker back on her feet faster. By solving things right the first time, in a way that is healthy and healing for everyone, the family puts its money into resources and solutions that will benefit the family for years.
|Divorce professionals should help parties untangle their lives in ways that enable them to move on, and in the best position possible.
What is the role of attorneys in a collaborative divorce? In many cases of collaborative divorce, each spouse is represented by an attorney. The two attorneys guide negotiations and decide among themselves what experts are needed. Each attorney acts as an advocate for his or her client in negotiations. A mediator is called in only if the two attorneys or their clients fail to agree on issues. This model works well, especially when there is some reason for a spouse to need more protection, for instance in complex cases or where challenging issues are involved.
In other cases, the spouses may choose to share a mediator and negotiate on their own. In the scenario of a mediated, collaborative divorce, the mediator guides the discussion and enables the parties to reach their own settlement without attorneys directing the negotiations. This does not mean that attorneys have no role whatsoever. Rather, the attorneys become more like consultants who are asked for advice now and then, or to review the overall agreement after the conclusion of negotiations. At the conclusion of a mediated, collaborative divorce process, the parties may get their divorce finalized in court by themselves, or they may engage a single attorney to walk them through the process.
In either scenario, the professionals in a collaborative divorce are all, 100% committed to getting the family through the divorce in a way that avoids going to war. The most tangible evidence of this commitment is the agreement that each collaborative professional makes: (1) to act as a neutral, (2) to share information, and (3) to withdraw completely from the case if either party pursues litigation. These ground rules ensure that each professional (and each party) is “on board” with the agreement to be fair and to work through issues in a way that keeps the spouses in control and out of court.
I am sold on the value that these professionals add. The collaborative approach to divorce is also cost effective. It is not “cheap” in the sense of paying a lower fee for professional services or because a family is cutting corners on quality. The reason it costs less is because it works better. The collaborative model reduces conflict, keeps the family on track toward the goal of resolving issues fairly, and provides services that will benefit the family for the long haul. Instead of paying two lawyers to battle in court over legal positions (with conflict escalating as the parties position themselves into battle mode), the spouses put their precious family resources into services that actually improve their situation. That, in my opinion, is a wise investment.