A Kinder, Gentler Approach to Divorce

written by Jim Duzak |

In an earlier article (“Avoiding the Well-Meaning Stranger”), I discussed divorce mediation, and why it’s often more effective than litigation as a way of resolving the many issues that arise during the divorce process. But mediation is not the only alternative to litigation. There’s a fast-growing movement called Collaborative Divorce that is well worth considering if, unfortunately, you or your spouse are convinced that divorce is necessary.

In a collaborative divorce , the parties and their attorneys agree in writing at the outset to freely and promptly disclose all pertinent financial information; to jointly retain neutral experts (such as accountants and child psychologists) rather than “hired guns”; to conduct four-way settlement conferences in a civil and co-operative manner; and to refrain from litigating the case in court until or unless the collaborative process has totally broken down (at which point the original lawyers would withdraw from the case, new lawyers would come in, and everyone would start over from scratch). In other words, no threats, no name-calling, no game-playing, a minimum of histrionics, and a focus on the future, not the past.

If the collaborative process is successful—and, once begun, it usually is—everyone signs a detailed agreement that is submitted to the court. In some states, the parties never have to set foot in the courtroom. In other states, they might have to appear before the judge in a very brief hearing, just to ensure that they understand that the agreement they signed will be binding once the judge approves it.

Although both mediation and collaborative divorce can minimize the friction, maximize the co-operation, and save the couple a lot of money, there are differences between the two approaches. A mediator is a neutral person; he or she can’t offer legal advice or strategies to either spouse—in fact, not every mediator is even an attorney—and can’t be a “hand-holder” for one spouse and not the other. A collaborative lawyer, despite the agreement not to litigate, is still a lawyer in every sense, with an ethical obligation to represent only his or her client, and to represent that client competently. Assuming the lawyer is experienced in domestic relations law and trained in collaborative techniques, a client seeking a collaborative divorce needn’t fear that it will be a second-rate divorce .

Some law firms that specialize in collaborative divorce offer additional services to their clients to help ease the transition into post-marital life. For example, one Southern California firm I know of has both a divorce “coach” and a financial planner on staff.

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