Divorce with decency and dignity
Divorce is painful. Couples do not begin married life planning to divorce, and the decision to divorce often brings with it feelings of sadness, personal failure, anger and shame.
Divorce is also an important legal matter. The issues involved are too important to face without expert legal advice and guidance. Yet couples may be reluctant to hire lawyers because they fear competing lawyers will increase the conflict, rather than help resolve it. The traditional litigation-based legal process defines spouses as adversaries, courtrooms as battlefields, and lawyers as gladiators, compounding the pain of divorce. That’s why a number of family law attorneys are rejecting traditional divorce litigation and offering their clients a new, more peaceful approach: collaborative family law.
Collaborative lawyers recognize that divorcing couples often will continue to have contact – they may be parents or share a network of friends and business associates – and that divorce is not so much an end to their relationship as it is a restructuring of the relationship. Collaborative law allows a couple to work together to build a new relationship that preserves each other’s dignity and allows the family to look toward a better future, rather than focusing on anger and blame.
Lawyers trained in collaborative law join with divorcing couples in a process that promises civility, good faith negotiation, honesty and an outcome based on shared interests and mutual respect. There are no adversaries and no hired guns. Decision-making remains with the couple. The courtroom is used only to formally end the marriage, not as a battlefield.
Collaborative law offers many benefits. The process insulates children – including adult children – from the divorce. Children see Mom and Dad working out their disagreements, rather than fighting it out in court. This problem-solving approach increases the likelihood that both parents will be welcome at the graduations, weddings, births, and other family events still to come.
The collaborative process minimizes stress and emotional damage. The negative emotions often associated with divorce are acknowledged and dealt with rather than ignored and inflamed. Collaborative lawyers and clients recognize that strong emotions are a natural part of divorce and agree to treat each other with dignity and respect as they work through those difficult emotions.
Collaborative family law is less expensive that traditional litigation. A couple’s resources are focused on finding solutions, not plotting defensive strategies. Information is exchanged voluntarily and, where necessary, the couple hire experts jointly. There is no battle of the experts. The process may also save time as the the back and forth of lawyer to lawyer negotiation is replaced with face to face, four way meetings.
But a couple’s ability to control the process and the outcome is the unique advantage offered by collaborative law. When a case goes to court, the judge is in charge and has broad discretion to divide property, set support and make orders concerning child custody and placement. There is little predictability in outcome and rules of evidence may even make it difficult for the judge to learn all the facts. Most people find their “day in court” to be frustrating and expensive. Most judges, given the opportunity, will tell litigants they will be more satisfied with a decision they craft themselves than any decision rendered by a court.
Collaborative cases are conducted by a series of four way meetings. The couple and their attorneys agree to work as a team, rather than as adversaries. The attorneys work together to anticipate and manage conflict, to identify important issues and to guide the negotiation. Collaborative attorneys must understand parenting concerns and the financial aspects of divorce. Collaborative attorneys help the couple identify issues, develop possible solutions and avoid costly pitfalls that may not be apparent to a lay person. They may also help to even out power imbalances between the couple, providing vital support to the less articulate or assertive spouse.
The couple has the most important role in the meetings.
They speak directly to one another, identify goals, list issues and concerns, and develop a plan to accomplish as many goals as possible. This is markedly different from traditional litigation wherein lawyers often instruct their clients not to discuss issues directly.
Clients and attorneys often leave the four-way meetings with “homework assignments” to gather information for the next meetings. Again, this is different from traditional divorce with its reliance on “formal discovery.” They may jointly hire financial or tax experts to become part of the process, working with the couple and their lawyers to provide information, or evaluate assets to assist in the decisions about children or property.
The collaborative approach isn’t right for everyone. Mutual trust is vital. If one spouse cannot trust the other, collaboration won’t happen. If someone doesn’t live up to the bargain – doesn’t share information, doesn’t treat the others civilly and with respect, doesn’t participate in the discussions – the process won’t work. And where abuse is present – spousal abuse, child abuse, drug or alcohol abuse – it may be impossible for the couple to deal with one another in the open and honest manner that is essential to the process.
Collaborative law will not make divorce painless. But it will support divorcing couples as they plan for a brighter future. Most people understand that more can be accomplished by working together than by battling one another. Collaborative family law applies that basic principle to one of life’s most difficult experiences.
~ Article by Daniel P. Bestul and Diane L. Mader