Divorce Without Dishonor

Many divorcing couples are embracing collaborative divorce as a kinder, gentler method of dissolving their family and financial relationships (see our October 6 post). Increasingly the judiciary support collaborative divorce, and a growing number of state legislatures have voted to authorize collaborative divorce. The American Bar Association (ABA) recently came out with a opinion supporting collaborative divorce. However, as the October 5, 2007 article in the Baltimore Sun made clear, attorneys remain divided. (Click here to read the full article by reporter Melissa Harris).

The collaborative divorce agreement signed by the divorcing parties and their respective attorneys prevents the attorneys from representing their clients in court should the collaborative process fail. Collaborative divorce, which uses a cooperative meeting approach, can generally be resolved more quickly resulting in fewer billable hours and loss of income for attorneys. To be fair, America’s adversarial approach to litigation has convinced many attorneys that this inability to represent their clients in court prohibits them from providing full and fair protection of their client’s rights, a view struck down by the ABA’s recently released opinion. Of course there are many attorneys who do not invest themselves in the welfare of their divorcing clients — a tenet of collaborative divorce. They focus strictly on the law and using the law to achieve the greatest gain for their client, despite the cost to the family unit. Collaborative lawyers proactively represent their clients, but within the larger view of what will be best for the family, and particularly the children, now and into the future.

Siding with the adversarial view of divorce, the Colorado Bar Association struck down collaborative divorce as unethical, charging that it prohibited lawyers from aggressively fighting for their client’s interests. "There’s this fiction in collaborative law that everyone’s always telling the truth," explained Harry Siegel, founder of the Maryland Trial Lawyers Association’s Family Law Section. "If someone’s lying, they could actually more successfully get away with it in a collaborative model than in the court system, where there are checks and balances."

Collaborative divorce is a new way of thinking about divorce law, "a complete paradigm shift" away from mainstream attorney practices, said Paul Washowshky, an Ellicott City attorney who accepts collaborative clients. Howard County Circuit Court Judge Diane Leasure shared the view of many in the Maryland judiciary when she called collaborative divorce "a wonderful option short of litigation." The Maryland judiciary now allows litigating couples to put their court action on hold to try the collaborative divorce process.

"The thing with domestic law is that there is so much discretion vested in a trial judge, especially when it comes to child custody and access issues," explained Judge Leasure. "We often only see the parties in court and don’t meet the children … so it’s difficult to determine what’s best for the children."

Collaborative law leaves the welfare of their children in the parents’ hands and has led to some unique solutions, said collaborative attorney Jolie Weinberg. She has several clients where the custody agreement requires the parents, not the children, to move in and out of the family home. "The parents are truly the ones who are making the sacrifices for the kids," she said.

If you are considering collaborative divorce, it is important to work with an attorney dedicated to the collaborative process. Look for one who is a member of the International Association of Collaborative Professionals (IACP). Some attorneys consider that any cooperative effort, no matter how small or fleeting, constitutes collaborative practice. This simply isn’t true. Collaborative lawyers take special training in the art of communication, positive listening and behavior management. They learn to think outside the box to develop creative solutions to a couple’s issues. They are dedicated to helping both parties come to a fair and equitable agreement in an atmosphere of respect and safety outside of court. While effectively representing their clients, their focus is on helping the divorcing couple find solutions that will benefit the whole family, particularly the children.

Same split with a lot less spat was the humorous definition of collaborative divorce used to headline an excellent article that appeared yesterday in the October 5, 2007 issue of the Baltimore Sun. (Click here to read the full article by reporter Melissa Harris). Collaborative family law is making the news as more people search for ways to divorce without all the blood-letting and acrimony often typical of American divorce.

Collaborative divorce is a team approach in which the divorcing spouses, their respective attorneys and sometimes other professionals work together in an atmosphere of professionalism, calm and respect to dissolve the couple’s family and financial relationships. The brainchild of a Minnesota attorney in 1990, collaborative divorce seeks to decrease the bitterness, length and cost of divorce in America.

Collaborative professionals — attorneys, financial experts, divorce coaches, child specialists — receive specialized training in the collaborative approach and contract to work toward the goal of a mutually acceptable settlement. Collaborative law is dedicated to solving legal issues outside the court system. Should the process break down and the couple decide to take their case to court, the collaborative team, particularly attorneys, is contractually bound to excuse themselves from the case.

Collaborative divorce is not the right fit for everyone. Both parties must be willing to put aside the hurt and anger that accompanies divorce and commit to resolving their differences fairly. Collaborative divorce is particularly effective when a divorce includes children. The collaborative process helps parents learn to communicate effectively and helps build the skills they will need to parent their children successfully but apart.

The Baltimore Sun article follows the divorce of Columbia, Maryland couple Frank and Stephanie Ellis. The Ellises were able to come to agreement about possessions, finances and child custody in four collaborative sessions at a cost of about $14,000, less than half the cost of a typical contested divorce. "The process felt like a business meeting," Stephanie said.

The skill of the collaborative team also helped the couple define and focus on the actual issues of their separation without getting bogged down in their emotions. Frank described a disagreement over how the couple would split a tax refund. "It got to the point where we both had sort of drawn lines in the sand and weren’t going to bend. We took our attorneys and went into separate rooms and had venting sessions. … It’s amazing the things you choose to argue about." Once emotions were under control, the couple was able to reach an agreement.

The Ellises were successfully able to dissolve their marriage and settle child custody issues through the collaborative process. They have come out of the process with the ability to interact and communicate effectively and without acrimony. Their daughter, they say, is healthier and happier because of it.

Michael Mastracci, attorney and counselor at law, is your host and author of Divorce Without Dishonor

Collaborative divorce is a way of solving disputes respectfully. However, given the reality of human nature, it may sometimes be difficult to maintain a cooperative atmosphere during meetings with your spouse and your respective attorneys. Here are some tips from collaborative experts that may help you as you move through the process of divorce.

1. Focus on solving the problem. During your marriage you and your spouse tackled problems together. Try to think of separation and divorce as one more problem you are trying to work out together. It may not be easy, but it will help you maintain a cooperative attitude.
2. Focus on constructive solutions. Recriminations and emotional outbursts will not help you reach your goals. Focus on your goals and try to offer effective suggestions for reaching them.
3. Focus on creative solutions. Keep an open mind. Don’t become so focused on your ideas that you fail to consider other, possibly more workable, ideas. Be creative. There are many ways to reach a goal. You’ll find your collaborative team particularly helpful in suggesting creative solutions to your problems.
4. Focus on respecting each other. Sarcasm, criticism, inflammatory speech, angry outbursts — none of these will help you solve your problems or reach your goals. They will only serve to escalate emotions and make cooperation impossible. If your emotions start to spiral out of control, remove yourself from the meeting until you calm down. Collaborative attorneys and the collaborative team are specially trained to foster a cooperative atmosphere that is respectful to both parties. Your divorce coach can help you improve your communication and self-management skills so that you can communicate more effectively during meetings with your spouse.
5. Focus on speaking for yourself. "I" comments will be more effective during negotiations. You cannot speak for or know the feelings or motivations of your spouse. You can only honestly speak to your own feelings and needs. "You" statements too often are perceived as accusatory and generally lead to unproductive arguments and escalating feelings of hostility.
6. Focus on listening. Truly listen to what your spouse says. Try to understand what matters most to her and see things through her eyes. Mutual understanding is a necessary step to solving problems in a way that meets the needs of both parties. 
7. Focus on the future. Dwelling on the past and allowing yourself to become mired in emotional pain and blame, while human, will prevent you from moving forward. Accept responsibility for your feelings, but don’t allow them to govern your actions.
8. Focus on reality. Recognize that separation and divorce are huge and perhaps frightening changes for you, your spouse and your children. Quite often one party is less prepared and less accepting of the reality of divorce and the ending of the marriage than the other. Try to respect the needs of your spouse and allow them time to adjust and make decisions.

If you and your spouse can work through the issues of your divorce together while maintaining an atmosphere of cooperation, you will both heal more quickly and be able to move forward with your separate lives. If you have children, divorce will be immensely less damaging if both parents are able to work together amicably.

For more information on collaborative divorce, see our blog posts beginning September 24, 2007 and click here to visit my website.

Divorce is so common that some couples stay married just to be different.