I’ve practiced divorce law for more than forty years. Just go with me here. A useful phrase to employ when consulting with someone in the throes of divorce is “temporary insanity.” Not that these people are certifiable, of course—though that soon to be ex-spouse might have you think otherwise. And that’s part of the issue. The emotional upheaval and sense of loss that surround the process can leave the sanest of folks grasping for a lifeline.
What then, is our role, in advising potential clients on a course of action? First, we are ethically required to provide clients the details of their process options. Even if they are certain of what they think they want. Even if we know what direction we think they should take. I believe we must allow the information to sink in—when we see that telltale “glazed over” or deer in the headlights stare, we would be wise to go over the choices again. This is our job every day, but to a client, this is a battle, sometimes within themselves and sometimes with the other spouse and/or their children. No matter who shows up, divorce is difficult. To say clients are not at their best is a vast understatement. Yet they are expected to make enormous decisions with future implications for themselves and their family—financial, emotional, and otherwise—and that can be downright overwhelming for anybody. Sometimes they “buy” too fast and get buyer’s remorse. Don’t let a client think that he or she has been talked into anything.
So what are the options we should lay out?
1.) Litigation
This is your divorce in court, the default method, Kramer vs. Kramer; petition filed; “discovery” requested (financial documents, property, assets, and debts; information on parenting skills, lifestyle choices, etc.) arguments concocted, depositions taken and experts engaged. Elaborate discovery can be expensive, and “production wars” are common; clients are subject to rules and judgments of the court, though mediation is required by most courts to encourage settlement. Litigation is too often prolonged and unpredictable; the more aggressive and contentious, the more expensive. It is a public hearing, meaning anyone can come in during the court proceedings. Privacy is not protected. In litigation, it is not unusual for clients to go through two or three different attorneys. The goal is to win. Somewhere around 95% of divorces, even when litigating, end up settling. To go through the full litigation process is also tantamount to relinquishing control.
2.) Collaborative Divorce
This is a private, team-based approach focused on coming to creative resolutions as peaceably as possible; each client has his or her own attorney as advocate, but a mental health professional and a financial planner round out the team as “neutrals.” The financial planner, instead of the attorney, deals with all the voluntary gathering of the financial information. The mental health expert is a communication coach and is also charged with helping the parties reach agreements on all aspects, including issues regarding children; if emotional issues or substance abuse are present, the mental health specialist advises possible solutions; if, during the course of collaborating, one “side” notices the other has made any mistake—say an extra zero was placed at the end of a number that would be in their client’s favor—they are duty bound to tell opposing counsel. The idea is to collaborate as a team to craft a truly individualized document tailored to work best for this particular family and to provide a settlement that is durable. Spouses must sign a “collaborative participation agreement,” which means full disclosure on all issues. If clients find themselves in gridlock, they can scrap it and litigate, but they will have to find new attorneys. This gives everyone, lawyers included, ample incentive to think outside of the box when snags occurs, because no one wants to start the divorce process at step one again. Lawyers also do not like to lose their job. Because support is part of the process, couples often co-parent better and emerge better emotionally than they came in.
3.) Cooperative
This is a hybrid of litigation with a bit of collaboration tossed in; the parties might communicate on many issues, and try to be as civil as possible, but there are no mental health or financial professionals available, no team approach, and no binding agreement to be “honest” about mistakes made by an opposing party. This is still us vs. them.
4.) Mediation Process choice
The couple decides to hire a mediator to help them come up with an agreement covering all issues, property, debts, and clients issues, which is reduced to writing without either spouse hiring an attorney. Once an agreement is reached, each should engage an attorney to draft the agreement in proper legal form to be accepted by the court.
5.) Kitchen table
The couple works out the issues amongst themselves and reaches agreement without attorneys; they must figure out how to “paper” the settlement; this approach can be treacherous as there is no protection for either spouse in the event of hidden assets, etc.
Out of the available choices, in a perfect world, I would choose to collaborate. Because the process is built around a team, it is less contentious, less destructive for families, and maximizes creative resolutions. But there are times when the collaborative approach just won’t work. Some personalities (narcissistic and borderline come immediately to mind) or situations (abuse or emotional dominance of one spouse) won’t bear out well, certainly if the parties cannot sit in the same room with each other. Also, some spouses come in already accepting the divorce, while the other is still gobsmacked. If one spouse is still deep in denial about the divorce, collaborating becomes unfeasible. In fact, when attorneys look at the collaborative cases they have had that did not settle, it is most likely because the situation was not right for collaboration in the first place!
Not all situations lend themselves to collaboration, but in many, many circumstances, it can be the best choice when divorce is unavoidable. We, as attorneys, must remember to follow our clients’ lead when deciding the best course of action. They always tell us, in their own way, what option is necessary. Our charge is to keep our ears and our hearts open.
