Divorce has become a normal reality of life in America. As with other life transitions, you can decide how you will manage this major life change. Your decision will probably have a profound impact on your future, and it is worth taking the time to make a decision that is wise in your particular situation.
The end of a marriage or long-term committed relationship can affect all of your relationships. Your choices will affect not only yourself, but also your children, your family, and your friends. Divorce is a transition with important emotional, financial, and legal aspects. Whenever possible, it is best to address all three aspects — emotional, financial, and legal — to support your long-term goals, your future, and the future of your children.
The process choice you and your spouse make will set the tone for your entire divorce and likely your relationship afterwards. It can impact your agreement and your future. It is perhaps your most important decision, and one you could well be asked to make at a time when anxiety and fear may be high and there are lots of unknowns. When in the middle of all this turmoil, it is easy to forget that after your divorce is concluded, you may have a co-parent relationship with your former spouse; and perhaps even some common friendships, whether with joint friends, extended families, or even your former spouse. You will always have memories about your marriage and about how you did your divorce. All of these will be profoundly impacted by your process choice.
Conventional divorce is predicated on a “win-lose” model, where it is assumed that former spouses must fight against each other for their “rights;” consequently, settlement negotiations are often not a priority and often do not occur until everyone has prepared for a trial and possibly extensive court involvement. If there is any disagreement, the primary “go to” tool of most conventional lawyers is: “see you in court.” Conventional negotiations typically include legal maneuvering, posturing, bluffing, power-plays, and positioning. That all comes at a price: those tools tend to increase acrimony and anxiety–and, interestingly enough, often result in much worse outcomes than alternatives. When this approach is used, it is like two countries that refuse to discuss a peace treaty until both have nearly bankrupted themselves by mobilizing for war. When negotiations finally occur, they tend to occur in marathon-like high-pressure high-stakes sessions until the party who is most exhausted gives in. It does not have to be that way. It is not necessary to mobilize for war to explore options for peace.
The conventional American legal model is an adversarial model, built on the premise that the truth can be discovered by a neutral judge or jury if both sides make their most vociferous arguments. Legal training and experience is training and experience in laws and adversarial legal procedures. The law generally does not care much about what may be important to divorcing couples—it cares about providing an opportunity to present a case, and rendering a result within guidelines established by politicians and the Judge’s subjective sense of how things should be. The information before a court is limited to what is admissible under the Rules of Evidence. Each side presents evidence and arguments to “win,” but there is never more than one “winner.” Most of the work that conventional divorce attorneys perform consists of preparing to go court or to trial — even though trial is unlikely — and engaging in court hearings. (Sometimes this is described as preparing for “settlement”–see below about settlement conferences.) Because most conventional lawyers lack formal training in mediation or negotiation, they tend to resort to ineffectual tactics such as staking out positions and posturing.
The conventional model ignores that the vast majority of divorcing couples do not want a lawsuit or additional acrimony. Most just want a life transition, advice on how to go about that transition, and a dignified resolution of the financial, emotional, and parenting (child custody and child support) issues. While courts can and do provide binding decisions, the structure of the conventional divorce model tends to escalate acrimony and conflict.
All divorce processes result in binding and enforceable documents; however, there are different paths to getting there. We encourage you to think carefully about the divorce that is right for you, because this could be one the most important decisions you make for your and your children’s futures. Fortunately, there are many options other than conventional representation. The predominant methods are:
Collaborative Law is a process that helps you and your spouse work towards a settlement that is in alignment with your goals and priorities. Each party has a Collaborative lawyer, whose sole role is to help you reach agreement using the process. Often, the services of a small team of professionals is deployed to assist in reaching settlement, which may include a neutral financial specialist, one or two divorce coaches, and a child specialist. At a minimum, each team members has formal training in Collaborative Law and facilitative mediation, in addition to a substantive background within their own discipline.
Most of the dialogue and much of the work to resolve the case occurs during joint sessions–meetings where both spouses and the attorneys are present. At the first joint session, all sign the Participation Agreement, which creates the framework and safety for the Collaborative process. All agree to work together to reach resolution without going to court. The Participation Agreement requires both parties to disclose all important information, contains other protections, and disqualifies the lawyers from going to court on any disputed matter, which allows them to work better together.
The clients make the decisions based on what is important to them and their families. The lawyers provide advice, make sure that everyone has all necessary factual and legal information to make informed decisions, assist in leveling any power imbalances that can get in the way of dialogue, and prepare all necessary divorce documents. Because everyone knows that court is no longer an easy option, there is a much higher commitment to reaching agreement. The goal in Collaborative Practice is to reach a durable agreement. To achieve durability, the settlement decisions must feel acceptable and understandable tomorrow.
The Collaborative Divorce model is very different from the conventional model, and a different paradigm, even for lawyers who normally settle their cases. Accordingly, this model is rarely effective unless all team members have received specialized formal Collaborative Law training and mediation training.
In a conventional divorce, the only rules that apply are those that apply to trials and courts. The focus is on what happens in court, and the court may be involved in many phases of the proceeding.
When both parties retain conventional lawyers who are settlement-oriented, it may be possible to reach a settlement based on negotiation, usually using ad hoc methods. There are a number of excellent attorneys whose personalities lend themselves to practice in this style, but it is difficult to learn whether your attorney will be one of them.
More commonly, at least one lawyer is not settlement-focused from the outset. Then, court-based adversarial procedures will be employed, and court involvement could be quite extensive. In its essence, the litigation and adversarial representation model is oriented to allow a judge (or other judicial officer, such as a court commissioner) to make decisions after each party presents his/her strongest case. “Settlements” tend to be reached when one side persuades the other party to capitulate. When a conventional divorce settles, it is usually based on the adversarial criteria that a court would use, often after preparing for trial, and generally after each side makes arguments to “bolster” their own extreme positions and undermine the other’s. Needless to say, all these procedures and posturing results in high attorney’s fees.
Most cases that follow the litigation model are settled, typically at a settlement conference after everyone has become entrenched in their positions. At the settlement conference, the lawyers will present the same arguments and “evidence” that would be presented at trial. The neutral settlement conference master will try to convince both sides to compromise. Settlement conferences can last all day, and important decisions are often made under pressure and when fatigued. A sizable number of resulting settlements are of poor quality and therefore tend to be relatively short-lived. Arbitrations about what the final papers should say, and subsequent legal proceedings, to enforce or modify agreements, are common. Many divorce lawyers view a successful settlement conference successful if both parties feel equally unhappy.