I might alienate some folks with this article. I do not want to; but it might happen. Which I find ironic (and germane) given the subject matter. I am talking about "collaborative divorce."
It sounds great, doesn't it? Who would reject such a thing?
EVERYONE wants a collaborative solution, right?
Folks call me and inquire about collaborative divorce and say "I want my divorce to be collaborative. It sounds nice. I don’t
want to go to court." Collaborative divorce is not for everybody. It is not a magic potion that avoids all controversy that surrounds a marital dissolution. Collaborative divorce is aspirational.
Collaborative divorce is often described like this: Collaborative divorce is a process. Unlike a traditional divorce, the process is a mutually respectful, open-minded process that focuses
on joint problem solving.
REALITY CHECK:: 98% of all "traditional" divorces are settled out of court, even if a lawsuit is initially triggered. Sometimes a lawsuit is filed in order to bring the parties to court-ordered mediation or other alternative dispute solutions. In other words, for "joint problem solving."
REALITY CHECK:: a "mutually respectful process" is impossible if the timing is not right. If one spouse has been betrayed or financial waste (or ruin) has been discovered or there is domestic violence or any number of other scars are open, seething, oozing -- finding "mutual respect" is just not going to happen. Wounds must be addressed before there is any ability to have an "open-minded" collaboration.
Another tenet of collaborative divorce: Collaborative divorce avoids court. The goal with collaborative divorce is to reach an agreement without going to Court by developing an
effective relationship with your ex-spouse that enables you to make joint decisions.
REALITY CHECK:: Even in a collaborative divorce process, the interest of each spouse is adverse to the other. There is no longer a "we." There is no "unit." It is "me" and "I" and "you." When interests are adverse, developing an effective relationship with your ex- (or still current) spouse takes balance and compromise, which takes insight and perspective. A spouse that must pay wants to pay as little as possible. A spouse that needs financial assistance wants more than the paying spouse can afford. A parent whose "job" has been to primarily parent must relinquish parts of the job to someone who acquiesced those duties.
"Joint decisions?" REALITY CHECK:: If joint decisions were not made during an intact marriage, it is a mighty big challenge to make them once apart. If, for instance, there was a significant disconnect over disciplining the children during the marriage, it is not likely that "collaborative divorce"
is going to produce a change of philosophy bringing about mutual agreement never present before.
I am not saying that spouses who disagreed over things big and small, minor and major, during the marriage will continue that same path after separating. People change. Dynamics change. Flexibility occurs. Parents can co-parent, even when they never did so before. Spouses can make decisions together, even when they did not before. It isn't collaborative law per se that brings about this change in behavior. It isn't "traditional divorce." It isn't a full-on courtroom brawl. It is people who intentionally decide.
Here's another ingredient (aka "selling point") of collaborative divorce: it offers people an expanded team of professionals. The result is that parties have more access to information, more guidance from experts, more transparency throughout the proceedings, and more mutually beneficial solutions.
REALITY CHECK:: This team is expensive. Collaborative divorce is not, repeat NOT, less costly than "non-collaborative" divorce. This team can consist of mental health professionals, financial advisors, appraisers, CPAs, and others. This "team" doesn't materialize only in collaborative divorces. This team is engaged, and consulted in a "non-collaborative" divorce, too. The benefit in the collaborative process is that one outside professional is engaged on behalf of both parties. That works and saves money (one expert instead of two). At least until the consultant offers an opinion that is opposed by one of the spouses.
Collaborative law is open. With litigation, parties are pitted against each other. By pledging
mutual respect and openness, the parties learn how to work with each other instead of against each other.
REALITY CHECK:: Folks are "pitted against each other" even in collaborative divorce. Part of the collaborative model is to sit down together in 4-way meetings to openly discuss terms. Picture this: 2 spouses each with his and her lawyer sitting in a room around a round table. On the discussion agenda: disposition of the family home. Spouse A left the marriage. Spouse B is in the marital home with the 2 kids under age 5. Spouse A wants the house sold because there is not enough money to pay for the mortgage on the marital home and on the new, recently purchased, townhouse. Spouse B has no intention of moving out or selling the family home. These folks are pitted against each other - it doesn't matter what you call the process. 4-way meetings are incredibly challenging for all participants. Even more so when the discussion items are hot-button, emotional, issues.
REALITY CHECK:: All the touchy feely words about “openness” and “respect” and “mutual goals”can’t change the plain fact that solutions are hard. The words used to describe the collaborative divorce process make it sound easy. No matter what the process, no matter what you call it, it is challenging to separate and to find common ground.
Real life happenstance:: I was in the 4-way round table room in a collaborative meeting.
The agenda item was child support and spousal support. My client had a sunny personality and was a conflict avoidant, people pleaser. The balance of power was not level, at least not in a 'stand up and advocate for yourself' way. In the 4-way, my client's spouse began haranguing my client about the budget. The tone and words were argumentative and harsh. The other lawyer did nothing to reduce tensions or re-direct the attack. My client sat there silently with tears dripping. I could no longer be "collaborative" and I stormed out of the session with my client. These folks WERE pitted against each other. Self-interest does not vaporize in collaborative divorce.
Here's the collaborative divorce hook: there is a no-litigation pledge. If the collaboration fails, the lawyers and the assembled team are dismantled and disengaged. The spouses begin anew. The hook is that the penalty of losing your lawyer and the time and money investment is so severe
that folks will stay in the collaborative process.
REALITY CHECK:: Collaborative divorce is risky. It can be a strategy. A well-heeled, well-financed spouse can deploy the collaborative model without any intention of reaching a mutual agreement, unless of course they get everything they want. Also, what sounds good on the front end (pledge not to litigate; let's all be friends) can prove to be a mistake, but the consequences of cutting loose
your lawyer, your team, the notebooks of meticulously compiled documents, time and emotional investment come together to compel a person to stay in the process and end up with a bad deal. Some collaboration, right?
I am not a collaborative law hater. The process can work. It does work. In fact, it worked in the case where I stormed out of the room with my weeping client. It is not, however, for everyone. Not every couple is best positioned for the collaborative process. Not every couple can afford it. If a divorcing couple chooses a "non-collaborative" divorce, it doesn't mean they are not being collaborative. They are investing in another process that is better for their situation. And, odds are, the couple choosing another process will end up with a mutually negotiated, out-of-court agreement. A collaboration by another process, but a collaboration nonetheless.
It sounds great, doesn't it? Who would reject such a thing?
EVERYONE wants a collaborative solution, right?
Folks call me and inquire about collaborative divorce and say "I want my divorce to be collaborative. It sounds nice. I don’t
want to go to court." Collaborative divorce is not for everybody. It is not a magic potion that avoids all controversy that surrounds a marital dissolution. Collaborative divorce is aspirational.
Collaborative divorce is often described like this: Collaborative divorce is a process. Unlike a traditional divorce, the process is a mutually respectful, open-minded process that focuses
on joint problem solving.
REALITY CHECK:: 98% of all "traditional" divorces are settled out of court, even if a lawsuit is initially triggered. Sometimes a lawsuit is filed in order to bring the parties to court-ordered mediation or other alternative dispute solutions. In other words, for "joint problem solving."
REALITY CHECK:: a "mutually respectful process" is impossible if the timing is not right. If one spouse has been betrayed or financial waste (or ruin) has been discovered or there is domestic violence or any number of other scars are open, seething, oozing -- finding "mutual respect" is just not going to happen. Wounds must be addressed before there is any ability to have an "open-minded" collaboration.
Another tenet of collaborative divorce: Collaborative divorce avoids court. The goal with collaborative divorce is to reach an agreement without going to Court by developing an
effective relationship with your ex-spouse that enables you to make joint decisions.
REALITY CHECK:: Even in a collaborative divorce process, the interest of each spouse is adverse to the other. There is no longer a "we." There is no "unit." It is "me" and "I" and "you." When interests are adverse, developing an effective relationship with your ex- (or still current) spouse takes balance and compromise, which takes insight and perspective. A spouse that must pay wants to pay as little as possible. A spouse that needs financial assistance wants more than the paying spouse can afford. A parent whose "job" has been to primarily parent must relinquish parts of the job to someone who acquiesced those duties.
"Joint decisions?" REALITY CHECK:: If joint decisions were not made during an intact marriage, it is a mighty big challenge to make them once apart. If, for instance, there was a significant disconnect over disciplining the children during the marriage, it is not likely that "collaborative divorce"
is going to produce a change of philosophy bringing about mutual agreement never present before.
I am not saying that spouses who disagreed over things big and small, minor and major, during the marriage will continue that same path after separating. People change. Dynamics change. Flexibility occurs. Parents can co-parent, even when they never did so before. Spouses can make decisions together, even when they did not before. It isn't collaborative law per se that brings about this change in behavior. It isn't "traditional divorce." It isn't a full-on courtroom brawl. It is people who intentionally decide.
Here's another ingredient (aka "selling point") of collaborative divorce: it offers people an expanded team of professionals. The result is that parties have more access to information, more guidance from experts, more transparency throughout the proceedings, and more mutually beneficial solutions.
REALITY CHECK:: This team is expensive. Collaborative divorce is not, repeat NOT, less costly than "non-collaborative" divorce. This team can consist of mental health professionals, financial advisors, appraisers, CPAs, and others. This "team" doesn't materialize only in collaborative divorces. This team is engaged, and consulted in a "non-collaborative" divorce, too. The benefit in the collaborative process is that one outside professional is engaged on behalf of both parties. That works and saves money (one expert instead of two). At least until the consultant offers an opinion that is opposed by one of the spouses.
Collaborative law is open. With litigation, parties are pitted against each other. By pledging
mutual respect and openness, the parties learn how to work with each other instead of against each other.
REALITY CHECK:: Folks are "pitted against each other" even in collaborative divorce. Part of the collaborative model is to sit down together in 4-way meetings to openly discuss terms. Picture this: 2 spouses each with his and her lawyer sitting in a room around a round table. On the discussion agenda: disposition of the family home. Spouse A left the marriage. Spouse B is in the marital home with the 2 kids under age 5. Spouse A wants the house sold because there is not enough money to pay for the mortgage on the marital home and on the new, recently purchased, townhouse. Spouse B has no intention of moving out or selling the family home. These folks are pitted against each other - it doesn't matter what you call the process. 4-way meetings are incredibly challenging for all participants. Even more so when the discussion items are hot-button, emotional, issues.
REALITY CHECK:: All the touchy feely words about “openness” and “respect” and “mutual goals”can’t change the plain fact that solutions are hard. The words used to describe the collaborative divorce process make it sound easy. No matter what the process, no matter what you call it, it is challenging to separate and to find common ground.
Real life happenstance:: I was in the 4-way round table room in a collaborative meeting.
The agenda item was child support and spousal support. My client had a sunny personality and was a conflict avoidant, people pleaser. The balance of power was not level, at least not in a 'stand up and advocate for yourself' way. In the 4-way, my client's spouse began haranguing my client about the budget. The tone and words were argumentative and harsh. The other lawyer did nothing to reduce tensions or re-direct the attack. My client sat there silently with tears dripping. I could no longer be "collaborative" and I stormed out of the session with my client. These folks WERE pitted against each other. Self-interest does not vaporize in collaborative divorce.
Here's the collaborative divorce hook: there is a no-litigation pledge. If the collaboration fails, the lawyers and the assembled team are dismantled and disengaged. The spouses begin anew. The hook is that the penalty of losing your lawyer and the time and money investment is so severe
that folks will stay in the collaborative process.
REALITY CHECK:: Collaborative divorce is risky. It can be a strategy. A well-heeled, well-financed spouse can deploy the collaborative model without any intention of reaching a mutual agreement, unless of course they get everything they want. Also, what sounds good on the front end (pledge not to litigate; let's all be friends) can prove to be a mistake, but the consequences of cutting loose
your lawyer, your team, the notebooks of meticulously compiled documents, time and emotional investment come together to compel a person to stay in the process and end up with a bad deal. Some collaboration, right?
I am not a collaborative law hater. The process can work. It does work. In fact, it worked in the case where I stormed out of the room with my weeping client. It is not, however, for everyone. Not every couple is best positioned for the collaborative process. Not every couple can afford it. If a divorcing couple chooses a "non-collaborative" divorce, it doesn't mean they are not being collaborative. They are investing in another process that is better for their situation. And, odds are, the couple choosing another process will end up with a mutually negotiated, out-of-court agreement. A collaboration by another process, but a collaboration nonetheless.