How one divorces, in an Adversarial System or Collaboratively can say much about what is most important, what is valued most.
There is a team approach in the collaborative divorce. Attorneys and professionals in allied divorce related fields are used to lead the collaborative team in their fields of expertise. They are: 1) a financial professional for asset, obligation and spousal support payment issues; 2) a licensed mental health professional as a divorce coach attending to the clients’ emotional divorce while the legal divorce is proceeding; and 3) a licensed mental health professional who serves as a child specialist in aiding the clients with the parenting aspects of the case, including the parent plan. These allied professionals do a superior and more cost effective job than do attorneys, who often attempt to take on these skill sets at a higher fee structure.
Preserving Family Relationships.
The entire collaborative team, attorneys included, has a guiding principle of helping preserve the transitioning family’s connections, especially where children are involved. Too often we see families torn apart and children needlessly suffering because of the sometimes hostile and often competitive, win-lose nature of the adversarial divorce.
Control and Client Empowerment.
The collaborative attorneys perform many of the same kinds of legal functions as they might ordinarily – providing legal advice, exploring legal options and explaining the law. However, there is a strong emphasis on empowering the clients by allowing the case to be theirs’ rather than one taken over by the attorneys, as can easily happen in the adversarial divorce.
Confidentiality of Family Affairs.
Other than meetings occurring in the offices of any of the collaborative team members, there is no public display of the family in any kind of third party or public forum.
Family Specific Solutions.
Because the collaborative team is working together to support solutions that can work for both clients, there is not only the goal but the flexibility to create solutions that are particularly unique for the family being helped in the collaborative process.
Voluntary disclosure is the norm in the collaborative process rather than the use of subpoenas, interrogatories, depositions and other forms of discovery routinely used in the adversarial process. There are safeguards in the collaborative process even with voluntary disclosure, including carefully screening the perspective clients before undertaking each collaborative case, having a financial professional review all financial documents and the ability in the collaborative process to request and voluntarily receive any documents deemed important to the understanding of the financial aspect of the case.
At the outset of a Collaborative Divorce case, clients, attorneys and allied professionals agree they will not litigate the case nor be involved in any court intervention. Thus, before any Collaborative Divorce case is initiated perspective clients are screened by the attorneys and/or the mental health professional serving as the divorce coach. There needs to be a strong level of assurance among the team that clients are appropriate candidates for the process and have a commitment to working collaboratively when differences arise in the settlement discussions.
In addition to the team members strongly supporting the clients in reaching a successful resolution of the case, sensitivity to the clients’ underlying interests, intervening when there are signs of a communication breakdown and being creative around decisions on the issues are all built into the Collaborative Divorce process. And, when a true and reasonable impasse does occur on any issue between the clients, alternatives to terminating the process are used to resolve matters. These can include binding arbitration of financial issues and the use of a child custody evaluation to help settle issues around the children. If a case is terminated, which happens rarely, the agreement previously made are codified into a stipulation and order and the clients receive help transitioning into representation by an adversary attorney.
Rupturing Family Relationships Instead of Supporting Them.
Some adversarial attorneys may advise against using the Collaborative Divorce process because the risk is deemed too high if the case is not completed and the collaborative attorneys withdraw. What the adversarial attorney has to offer in such a situation is a final litigation “resolution” of the case. In addition to the obvious risks of litigation in ceding control of the case to third parties (attorneys and judges), there are other difficulties that answer the question of why clients look for alternatives.
In the adversarial process, while a final result can always be counted through litigation, many adversarial cases can be deemed failures for the family, despite the assurance of a final result, even absent litigation. In the adversarial divorce, families are prone to become divided given the competitive, win-lose nature of the process that often characterizes adversarial cases. This only serves to exacerbate or solidify divisions between the divorcing spouses. In addition, the children’s suffering may be heightened because of parental hostility that can be enabled in the adversarial divorce. And, the resulting financial cost to families is nearly always becomes exponentially greater. The family in an adversarial divorce receives little or no support on any level in the adversarial process, and in this life-changing event more needs to be asked of the legal profession than what it has historically offered.
Whether the environment is at home, at the workplace or in a legal divorce discussion or negotiation, there are basic “rules of the road” that will lead to successful, non-adversarial collaborative participation.
Foremost among these is to take full and complete responsibility for what occurs in the environment. This does not mean one is responsible for everything that occurs in the environment; however, one is responsible to the environment whatever occurs. There is a big difference. For example, we cannot be responsible for the behavior of others, and we can be responsible for responding in a clear, non-judgmental and appropriate way to help improve what occurs. We cannot control the outcomes, and we can control what we bring to the outcomes.
This brings us to the next rule – before going into a situation it is helpful to have in mind what is the outcome we want. I am talking about the relationship outcome or the situational outcome rather than the specific content outcome. How do we want to feel about the outcome? How do we want it to look? And what can we do to bring that about? If we have as a priority preserving the relationship with integrity, for example, then we will act with integrity in respecting and giving full consideration to the other party.
This will require us to be aware of and monitor our more primitive emotions that may impulsively prompt us to lash out, blame or see the other as “the other”, rather than as a partner in the environment, however different may be our preferences and priorities. This could require us to take a brief time out to cool down or reset our emotional tenor. It is ok to do this.
We will also need to be open to some semblance of putting ourselves in the other party’s shoes; learning what is of importance or interest to them; learning as best we can how they feel about certain issues and what these issues mean for them. It is certainly ok to say: “I am interested in knowing why that is important to you. Please tell me.”
What helps in doing this is our ability to discern the values we may share with the other party and building on those. We both want what is best for the children, for example, or we both want the outcome to include preserving the relationship.
If even one of the participants in a situation keeps in mind these rule for the collaborative road, it will go far to ensure a satisfactory outcome.
In the Collaborative Divorce Process, there is a collaborative team put into place to support the divorcing couple while they move through the settlement negotiations leading to a legal divorce. Depending on the needs of the clients, the team could include a financial professional, a divorce coach or a child specialist, in addition to the attorneys. The collaborative team meets with the parties in a series of sessions designed to give them maximum support, input and information during the often difficult divorce discussions. Decisions are made within the context of the team meetings, so there is maximum input and structure from the team members when important negotiating decisions are made; decisions that may significantly impact the parties for some time to come.
However, there are instances when the parties, either with or without informing the collaborative team, decide to speak directly with each other outside the collaborative process. This may be done with a desire to speed up the process, save fees or with one party having more nefarious intentions in mind, like taking advantage of what may be inherently unequal bargaining postures or dynamics between the parties.
When such a situation occurs in the Collaborative Divorce process it is ideal if the clients “going off on their own” to negotiate final decisions is first discussed with the attorneys or another collaborative team member. Certainly it is a good idea to allow the parties maximum flexibility in their own process, especially when they are both communicating with each other in a civil and respectful way and when they already have the necessary information to make final decisions. If this is the case, even if the parties are not successful in resolving issues by speaking directly with each other outside the collaborative process, they can re-enter the process knowing they did what they could to finalize matters themselves, despite the fact it was not successful.
The more problematic situation is one where the clients go off on their own outside the collaborative process, but they have never actually had the communication skills to have similar discussions while in the marriage. Here, if the couple’s only motivation is to save money or for one or the other to get a leg up, the prospects for disappointment, frustration and a cessation of acting collaboratively can be high. Thus, the collaborative team faces a dilemma when such a situation occurs.
At least if there can be a discussion beforehand with one or more of the team members about setting ground rules and boundaries for such out of process direct discussions, the parties have a better chance, however things turn out, to remain in a collaborative mode with each other. However, where they start negotiating with each other unilaterally outside the support of the collaborative team, it is often difficult to resurrect the collaborative approach within the team structure, if such direct negotiations result in a further lack of trust and a decreased willingness to be open to compromise.
The Financial Professional in a Collaborative Divorce case plays a significant role in the process. The Financial Professional must ascertain through diligent document review and examination of records, as well as by dint of experience and knowledge, the clients’ financial landscape. This means whatever assets, obligations and financial goings on that are part of the clients financial portfolio must be thoroughly understood by the Financial Professional, and then clearly explained to the clients and the attorneys.
This task would be relatively straight-forward if the parties’ assets included only a residence, vehicles, several bank accounts, IRA accounts and credit card debt. However, few cases are this straight-forward. There may be retirement plans that were contributed to both before and after marriage; there may be a business owned prior to marriage that experienced financial growth during the marriage; there may be a residence owned prior to marriage that remained in the owner spouse’s name but whose mortgage was paid with monies generated by the martial community; there may be an inheritance received by one spouse, normally sole and separate property, that was used in various ways to benefit the marital community.
These are just a few examples of some of the more complex issues that must be sorted out and understood by the Financial Professional and then presented in a way they can be clearly understood by the parties. Such understanding is required before a discussion of the financial issues can commence and a final disposition of the financial issues undertaken.
As important as the foregoing tasks may be, equally important is the Financial Professional’s complete neutrality in the process. If there is any perception or hint that the Financial Professional has not in all ways maintained neutrality in the process, the entire collaborative effort may be irreparably harmed.
The work of the Financial Professional has a significant impact on the parties and the integrity of the process itself. This is why the Financial Professional selected to be part of the Collaborative Team has been extensively trained and has had years of experience working with clients in the financial arena.
There are at least 4 areas in an already existing order of divorce or legal separation that are well suited for post decree modification mediation or collaborative settlement. The current orders in each of these areas may be modified if the situation calls for it and the statutory conditions exist for modification.
- Child Support. By law, child support may be modified, post decree, if either the financial circumstances of a party have significantly changed since the original child support order, or if the initial residential arrangements have changed. If, for example, one of the parties has a reduced income or increased income, such a situation signals at least a discussion and quite likely revisiting the calculation on which the original child support was based. Also, if the expenses for the children have increased or decreased, this may also be grounds for revising the child support order. Finally, if the residential arrangements for the children have changed, for example, where a child has changed residences and is now living primarily with the other parent, this will require a modification in the child support.
- Spousal Maintenance. If the original spousal maintenance order was not stated to be “non-modifiable”, this support payment may be modified post decree. The basis for the modification is whether one or the other party has both continuing and substantially changed circumstances from the time of the order, and whether these changes would warrant a spousal maintenance modification. Be sure to note that such changed circumstances must be on-going, not simply a reduction in salary for a several months only, for example. Such changed the circumstances might be such that either party has a significantly reduced or increased income or either party has greatly increased (or reduced) expenses from the time of the original spousal maintenance order.
- Child Parenting Arrangements. The law also allows the original parenting arrangements to be modified when the family situation calls for it. This can be one of the most difficult kinds of situations to assess, since it requires a consideration of whether the current living arrangements for the child are best or whether something else would be better. For example, as a young boy gets older, would it be best for him to be living primarily with his father rather than maintaining his current primary residence with his mother. There could be any one of a variety of possible living arrangements that might now be better suited for a child than was the original living arrangement.
- Property Settlement. In general property settlements are not modifiable; when they are done and ordered by the court, it is final. However, there may be situations where such finality has been left open in the property settlement or where each party will benefit by a modification of the original court-ordered settlement. In this event, also, the mediation of such modifications is a client friendly way to proceed.
As a long time divorce attorney, I have experienced a range of approaches to settlement negotiations, and the attitudes taken by my colleagues who also specialize in the field of divorce and family law. As I have moved from the traditional adversarial model of divorce settlement negotiations and used mediation and collaborative divorce settlements to resolve divorce cases, it has become clear how limited and myopic the view can be of the traditional adversary divorce attorney toward negotiating divorce settlements.
This is not to say taking such a view is anyone’s personal fault; rather, it is how most attorneys were taught and it is the message they continually receive in the adversary law practice culture. In effect, and usually without exception, the view is this: I represent a client. This client has a point of view. It is my duty to take my client’s point of view. My point of view is right. The other party’s point of view is wrong. I cannot take into consideration the other party’s point of view. I may give lip service but will not actually listen to the other party. I will do whatever I can to win so my point of view prevails. Unfortunately, this way of proceeding, especially in an area of the law that involves families, can be of great cost to everyone; certainly to the clients and oftentimes to the attorneys as well.
Life is not a zero sum game. Do we ever actually find a situation where one party holds every virtue, where one party is always right, where one party knows best and where one party’s point of view must prevail on all issues lest the “good” be lost and the “bad” prevail? Yet, as close-minded as this point of view may be, at least to one degree or another it is the one underlying the negotiating approach of many traditional adversary divorce attorneys. And, although it is often covered over with a stance of seeming reasonableness, the message is clear: I will be reasonable as long as my point of view prevails.
When we look beyond the surface of life, it is not hard to see that what is there is anything but black or white, right or wrong, this or that. It is never one thing only. And, if we may use the word violence in its general sense, there is violence in taking one point of view to the exclusion of all others. The violence is that in taking such a view what is served is obliterating all other points of view. And with that obliteration can come the trampling on the sensibilities and feelings and values of those with whom we live and work and interact.
As every eyes wide open divorce attorney must see, this unfortunate dynamic has special importance in the field of family law, domestic relations practice and divorce settlements. The ones we may seek to “overcome” and over whom we wish to prevail are often the mothers, fathers, children and extended close ones who make up our families, even if those families are in the transition of divorce or separation. While it is at odds with the underlying ethic of the legal culture , the quite literal reality of our lives is that we are all in this together. Such reality calls on the divorce attorney to be informed by this ethic. The question each client might consider asking in entering a legal divorce process and the path leads to final settlement is – “In the divorce process, do I want to be the one who serves to support healing the rifts that would break our newly transitioning family apart, and do I want a lawyer who will share this ethic?”
Integral to the Collaborative Divorce settlement process is efficiency in making the best use of personnel for specific tasks. This personnel includes not only the two attorneys but the financial professional, the divorce coach and the child specialist.
It might seem that use of this personal is overly costly and likely reserved for the wealthy. Upon further inspection, however, it is quite the opposite. In the traditional divorce, it is the attorney who performs, or tries to perform, the tasks that are undertaken by the specialists and professionals in the Collaborative process; and the attorney does so just for his or her own client. Thus, attorneys on opposite sides of the case are often performing duplicate tasks and then arguing about the results.
In addition, the performance of the various divorce related tasks by the attorney occurs at a higher hourly wage than the non-attorney collaborative professional. As important, the skill level is not as high. Attorneys are not financial professionals. They do not normally do taxes, nor do they appraise pension plans, or devise tax impact spousal maintenance schedules or easily undertake the calculation of separately owned interests in marital property. The financial professionals do all these tasks as a normal part of their professional practice.
Another example of the collaborative professionals undertaking divorce related tasks at a higher skill level and in a less costly way than attorneys can occur when the difficult symptoms of the emotional divorce (which often occur concurrent with the legal divorce) begin to interfere with the orderly process of negotiation and discussion of the legal issues. The attorney is not normally equipped to deal with the client’s emotional issues of confusion, denial, hurt, anger and grief. This lack of experience can prolong the traditional divorce process, create numerous obstacles and exacerbate the financial costs to the client.
However, when a divorce coach is employed in the Collaborative Divorce Process, he or she has the experience to tend to the emotional needs of each client. Often one coach is used for both clients, and the coach can help with such issues as communication deficiencies, normalizing the grief and loss process and calming the emotional turmoil experienced by many clients during a legal divorce. This work by the divorce coach can short circuit potential difficulties in the legal discussions and negotiations and help restore the process to the calm waters needed for rational decision-making. Thus, impasse can be avoided.
Finally, unlike the attorney, the child specialist employed in the collaborative process has the experience and skills needed to focus on the needs of children caught up in the divorce. The often unheard voices of children can be brought to the table and laid bare for the adults to consider. This will facilitate discussions around needed parental attention and thoughtful parent plans that can be made part of the final agreement.