After thirty plus years of experience—former family law judge, current family law attorney—my grasp of what it means to be a “good lawyer” has evolved. Being a good lawyer can be tricky. In divorce law, in particular, the definition of “good” deserves scrutiny. Emotionally, financially, and legally, divorce is scary. Many clients make life-altering decisions from an unconscious place of fear: their need for “protection” becomes primary. Many of these folks, to their own detriment, equate the best lawyer with the “meanest” or “toughest”—the junkyard dog mentality. “Tough” in the sense of “strong” is a positive trait in a lawyer, but altogether different from “mean” or “nasty.” I have seen firsthand that the adversarial nature of the court can be devastating to families, especially those with children. The antagonistic lawyer in the case of divorce is oil and water: they don’t mix well and make a mess that can be irreversible. In the high stakes disarray that is divorce, I champion collaboration whenever possible.
Collaborative Divorce utilizes a group of professionals—attorneys for each client, a financial advisor, and a mental health professional—who guide families in a respectful, interest-based method that promotes healing and positive outcomes rather than adversarial positioning, thereby avoiding the destruction, uncertainty, and expense of litigation. That does not mean that everyone is holding hands during the process. Nor does it mean the practice is perfect. But the gift of collaborative divorce is that after doors are slammed and ultimatums issued, time is built in to cool off and reboot. Clients can rehash concerns with attorneys without derailing the process. It’s not that couples involved in the collaborative process don’t struggle with the same intense feelings, but that knee-jerk reaction that runs rampant in the litigation arena don’t tend to in collaboration, chiefly because the stakes are too high. In collaborative, if an impasse develops and clients cannot come to some kind of agreement and ultimately settle, the collaboration is over. Done. Attorneys are thrown out, new lawyers hired, and the parties are back at square one. This key component purposefully set within the framework of collaborative divorce is in large part why it works.
Still, why not litigate instead of collaborate to exert control, keep power, and maybe make your fill-in-the-blank ex suffer a little? Divorcing couples don’t generally possess a resounding level of trust for each other. Several reasons. When clients pursue litigation and instruct their lawyer to bring the 2×4 to the opposing spouse’s forehead, there is no coming back; the “other side” is not going to be easy to work with from that point forward. They got stirred up, yes, but to what end? — it certainly just got more complicated. Further, the oppositional approach can be, and usually is, quite expensive. If clients try to affect the outcome by putting pressure on the other party, legal actions which might create that pressure, such as pervasive discovery requests, depositions of numerous individuals, multiple threatening, written communications and frequent hearings, must be put into action. Matters that dramatically spike the amount of financial investment required. One of my favorite things to say to a client is, ‘Would you rather use your money to pay for your kid’s college education or my kid’s college education?’” Still, further, aggressive tactics are not welcomed or appreciated by judges. The client is frequently associated with the characteristics of his or her lawyer, fair or not, which can result in rulings that are unfavorable. It also requires a certain personality for a lawyer to approach cases in a confrontational manner; it is not uncommon for that lawyer to exhibit the same behaviors in relation to the client, particularly if things are not going well, or the client questions the lawyer’s decisions. Finally, perhaps most important, even the spouse who “wins” will be required on some level to interact with the ex once the divorce is final, especially those who have children together. Though couples embroiled in divorce can’t quite fathom it, life will and does go on. Is the carnage left behind from contentious litigation, which can include lifelong damage to the psychological welfare of their children, really worth it? After the smoke has cleared is anyone the winner when the house has been burned to the ground?
In my experience, beyond that initial, palpable fear, what most clients actually want at the end of the day is a fair result, achieved in as short as possible time, for a reasonable cost. Collaborative does that. And with the support provided in collaborative divorce (mental health professional, financial planner), exes just may communicate better after the divorce than they could during marriage. That’s a clear win for everybody.
