I often read the psalms when I have a few moments to pray and reflect. When I read the lament of the psalmist in Psalm 120, verses 6 through 7, “Too long do I live among those who hate peace. When I speak of peace, they are for war.” I felt as if he was speaking to me. Every day as a divorce attorney for over 30 years, try as I may to prevent divorce war, it seems the court system and my adversaries are all for making war, not peace. I have analyzed the circumstances and dynamics, and it appears the energy, process, and the adversarial nature of the practice of law causes reaction and a fighting mode. This, however, is very destructive and does not belong in families. This situation, coupled with attorneys making money with litigation, court appearances, and protracted discovery and financial demands means this war will not end. Attorneys in matrimonial cases have a tendency to complicate that, which can be simplified, and attorneys think, by advising their clients to not be forthcoming with documents and information, even though the statutes and court rules require it, is a way to “win.”
Collaborative law bypasses this and can lead to a peaceful resolution. It is a process whereby the parties pledge not to go to court. The clients see the divorce coach to be screened and ensure they will be able to participate and understand the process. If there is domestic violence or an inability of one client to work toward a resolution; they will be told this process will not work for them. Being reluctant, upset, angry, or hesitant does not mean you cannot have a collaborative process. There is a quiz given to determine how the parties may fair. The divorce coach helps keep the parties focused and teaches them how to communicate and express themselves. Something that is invaluable in future discussions, coparenting and necessary conversations.
Collaborative divorce is interdisciplinary which means collaboratively trained mental health professionals (who serve as divorce coaches and child specialists), financial advisors, CPAs, business evaluators, mortgage brokers, and appraisers, can be brought in as part of the team if needed. What is ironic is that, in a collaborative divorce, the attorneys receive the same information and financials as in a litigated case. It is reviewed and analyzed as in a litigated case; however, the outside professionals may be part of this as they have the knowledge, experience, and expertise (sometimes attorneys may lack) and report back to the attorneys and the clients with their findings. The team member reports to the team with their suggestions and analysis on how to divide property, structure support, manage and plan for the distribution of retirement assets, life insurance structuring, liquidity, and taking into consideration tax implications and the circumstances of the individual couple and their children.
If parenting is an issue to be included in a final agreement, a child specialist can meet with the clients, the children, and craft a parenting access schedule that will meet the unique needs of their family. The child specialist then reports back to the attorneys, who can then prepare a parenting plan that will encompass the schedules and the intentions of the parties in a legal document. The use of experts reduces costs because an expert’s hourly rate is less than the attorneys per hour, and having an expert reduces the time both attorneys spend on the case. The experts, in a sense, do some of the work of the attorneys and provide complete and thorough information that can be reviewed by them and their clients, and they can use that information to write the best agreement possible.
When tensions mount, or if a client cannot express and communicate their fears, questions, or goals, the divorce coach helps the clients and attorneys with this as well as conflict resolution. Emotions run high, and clients are vulnerable. Too many times, I have been part of a divorce case where a conference or settlement busted because of an attorney’s aggressive stance or a comment made by their client, which the attorney did not correct or stop. This leads to the, “I will see you in court,” mantra and the war escalates.
The process of collaborative law works hard to prevent this. Of course, there will be conflicts and perhaps even more of an expression of emotions. Part of the collaborative process is the client being heard and listened to. The setting is safe and supportive. Attentive listening is a key component of collaborative law. This is something clients never get in court, though they yearn for it and expect it. The disappointment and frustration this causes fuels the war. Anger escalates the case, and the parties, and their attorneys.
In a collaborative case, the couple and their attorneys spend their energies, time, and money to make the best agreement possible for the divorce couple and their children. A peaceful divorce is the goal. Peaceful is more than no conflict or disturbance. The peace of a collaborative divorce has its roots in the Hebrew word Shalom. It means completeness, success, fulfillment, wholeness, harmony, security, and well being. This is the place a divorce should lead and end.
