Roy N. Martin - Article: Collaborative Divorce: an Option


		Collaborative Divorce: an Option

		(This article originally appeared in the April, 2005 issue of The Desert Leaf.) Divorce is hard. It can devastate husbands, wives, and children, and ravage finances. The adversarial legal system paired with the intense emotions that emerge in divorce can lead to tragic results. A new process called “collaborative divorce” is changing the way marriages are dissolved. Its goal is to make divorce emotionally safe. At its heart is a legally binding contract to settle the case without going to court. Each spouse is represented by an attorney trained in collaborative divorce. Once both parties and their attorneys sign a collaborative divorce agreement, the case cannot proceed to court unless the attorneys are dismissed. Since the parties don’t want to have to start over, and the attorneys don’t want to lose their jobs, everyone is now on the same team. One side can no longer bully the other with threats of litigation. Neither party can succeed at the other’s expense. Instead, “the team” succeeds or fails together. The adversarial nature of conventional divorce tends to drive spouses deep into their anger and bitterness. Collaborative divorce is designed to provide the support necessary to keep them from reacting in counter productive and, ultimately, self destructive ways. Therapists and financial professionals, also trained in the collaborative process, can be brought in to support the family and help create mutually beneficial agreements. If there are children, a therapist can serve as child specialist. The specialist’s job is to determine the children’s needs and concerns, thereby giving them a voice in the divorce without asking them to take sides. The child specialist can also provide information and advice as the team works to craft the best possible parenting plan. Therapists can also serve as coaches for the spouses. Their role is not to provide therapy, but to help the parties deal with emotions arising from the divorce, to prevent those emotions from clouding their judgment, and to help each spouse communicate his or her needs in a way the other spouse can understand. Financial professionals help the parties determine how best to divide their limited financial assets in a manner that supports everyone’s needs. In traditional divorce, the attorneys typically steer the process. This is because attorneys understand how a judge is likely to view the case. As a result, the best lawyers encourage their clients to settle in a manner that approximates what a court is likely to impose. However, the court’s jurisdiction is limited. Judges can only do so much. Parties in a collaborative divorce, working together outside of court, are limited only by their willingness to be creative. They can tailor solutions to their unique needs in ways that go far beyond anything a court could impose. When the parties themselves have created an agreement, they feel vested. Although statistical studies are unavailable, it’s been my observation and experience that even though individuals have compromised, they feel good about the result and almost never need the court to enforce the agreement’s terms. Collaborative divorce values both tangible assets, such as home equity, and non-tangible assets, such as the ability to parent cooperatively. When attorneys forget to value the intangibles, these assets are often ignored and ultimately disregarded. Since parents remain connected through graduations, weddings and grandchildren for the rest of their lives, everyone suffers when good will is lost. The risk of a collaborative approach is that, if the case fails, the parties have to start over. The risk of a conventional approach is that the couple will drain their resources in a knock-down-drag-out fight that will exhaust them, devastate their children, destroy any possibility of parenting cooperatively and wreck their finances. Although most traditionally handled divorce cases do settle out of court, negotiating a settlement under the threat of court can be intimidating and is far less likely to result in the best possible agreement. Parties working together, without the threat of litigation, and in a team effort designed to maximize emotional safety, are more likely to minimize expense and emotional upheaval, and most importantly, to reach agreements that really work. For those of us who grew up watching Perry Mason, there is often an almost mystical faith in our court system. In truth, while judges try hard to figure out what is best for each divorcing couple, their options are limited. They have little time to get to know the people whose lives they must rearrange. Ultimately, it is the spouses are the experts in the needs of their family. None of this implies that conventional divorce is without value. Collaborative divorce should not be attempted unless both parties are willing to act in good faith. Spouses can be angry, even distrustful, but if either seeks to misuse the process (for instance, to hide assets or prevent the divorce), then the conventional approach is best under the circumstances. Consider the court analogous to the hospital emergency room. Each is an upsetting, even terrifying, place to be, but if you really need it, thank God it’s there. Collaborative divorce attorneys can be found in cities throughout the United States and Canada, as well as in England, Ireland, Scotland, Austria, Switzerland and Australia. Within 18 months of its introduction in Medicine Hat, Alberta, virtually every domestic relations attorney was trained in collaborative divorce, and, in the first year following its introduction, contested cases fell by 51% (from 334 to 165). Medicine Hat is unique in the speed with which collaboration has been embraced. However it is my belief that once this approach is widely known, approximately half of the divorces now contested in Pima Country will be collaborative as well. Collaborative divorce has the potential to transform the culture of litigation. Soon people will no longer associate divorce with adversarial battle, but rather with emotional safety and mutually beneficial problem solving. Couples get married because they love each other. Sometimes it doesn’t work out. But when they can take things apart and put them back together in a way that really works and leaves them feeling good about each other, everyone wins. Roy Martin is a Tucson divorce attorney and member of the Collaborative Law Group of Southern Arizona.













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