Divorce with Minimum Pain and Anguish

Let me start off with a disclaimer. For a number of years, I practiced law in New York specializing in matrimonial law on behalf of wealthy and, often, extremely combative clients. In New York, then and to a lesser degree now, divorce was granted when there was an element of fault proven against the defendant or where there had been a substantial period of separation. I was trained to, and was quite accomplished at, listening carefully to my client's narrative and then re-writing the assertions in the most harsh and argumentative language possible. My clients were pleased but, in candor, after aggressive attorneys start their battle, the odds for a peaceful resolution are substantially lessened. In retrospect, I wonder if I was doing clients good while I was doing well.

All during the prolonged proceedings, the attorneys on each side would do that which the law and ethical codes required of them: to act as champions of their respective client's causes, to follow the attorney's prime directive: the zealous pursuit of their client's interests. One lawyer can't fully represent both divorcing spouses, because each spouse's best interests are different. Moreover, after the basis financial issues are addressed, issues of child custody, support and visitation were fought. It can and often does get ugly. When two or more lawyers are fighting for their clients' interests, the battle can go on and on, intensifying in passion, until the clients run out of money and limp to the settlement table.

Rarely, will an attorney hold back on the use of available ammunition and, I submit, he or she ought not to do so. We are advocates and exponents, not impartial observers.

Over the past twenty years or so, a new legal specialty and approach to the dissolution of a marriage has developed one that holds hope for a less combative and bitter experience, one that can minimize trauma and anguish to the children of divorce. "Collaborative Law" is not for everyone or for all situations but it has advantages that should be explored.

As I have explained, under normal circumstances, parties in a marital dispute should not share the same attorney. There are rare and unusual situations where this policy is not followed, but, nearly always, the interests of the parties conflict - even if one or both the husband or wife is not focused on this.

"Collaborative Law," as coined by its founder, Stu Webb, a Minnesota attorney, is a method where two lawyers agree with their clients not to litigate the matter and then everyone works towards a win/win resolution where both parties leave the marriage in the best possible position. Sometimes collaborative attorneys will invite other professionals to assist the couple such as a certified divorce planner to give insight about the family money issues, or a mediator to break a particularly difficult log-jam. The couple doesn't give up the option of going to trial by electing to try the collaborative approach. The only difference is that the couple will need to hire new lawyers to go to trial. This preserves the confidentiality of the four way meetings that are the back bone of the collaborative process.

Collaborative law in divorce matters has, since the 1990's, spread to 26 states, all provinces in Canada and the United Kingdom. The benefits of this procedure are: the ability to reach a settlement without large litigation fees; to craft custom-fit divorce parenting plans and property settlements that might be more sophisticated than what the court would produce; and both spouses are helped to learn communication and relationship skills that will serve them in the future.

Closely related to Collaborative divorce, where the party has an attorney, some couples opt for the services of a Mediator. This resource is often utilized in personal injury litigation. The parties sit with their respective attorneys in separate rooms. The Mediator goes from room to room trying to lessen the expectations of a plaintiff by pointing out the problems with his or her case and stressing the strengths of the other side and, then, taking the same approach to the defendant, warning of enormous damages that will be likely the result of going to trial. Bit by bit, the differences between the parties are narrowed and a settlement is found.

Either means of resolving issues without undo animosity will not work in all cases. Some divorces are going to be tried in the traditional adversarial manner.

In the messiness of real life, however, there are situations in which the sane alternatives to court offered here may not work. By personality or circumstance, many people just seem doomed to divorce the ugly way -- in court. If the following apply in a particular case, full-blown litigation is probable.

If one party is intent on revenge or hurting the other, any form of collaborative divorce is unlikely. If one party is a bully, it can also be tough to use an alternative to divorce court if your spouse has a history of intimidation and abuse so that, almost as a matter of self-preservation, you have given up and "lost" almost all of the arguments that have taken place during your marriage.

Attempting to negotiate on your own can be a waste of time in this situation. Your spouse is likely so used to winning all of your arguments that he or she will probably insist on unreasonable terms for the divorce and refuse to negotiate meaningfully.

There are some skilled mediators who can overcome this hurdle -- particularly those who have had a lot of experience in the courtroom and therefore can explain to your spouse with some authority what is likely to happen if settlement isn't possible and the case goes to trial.

Unfortunately, however, many seasoned bullies will avoid mediation, fearing that calm and objective airing of the dispute will cause them to lose the upper hand at intimidation.

Some spouses won't cooperate in talking reasonably about the terms of a divorce. Some spouses clam up or lash out because they are too angry about the reality of a divorce. Others are too hurt. Some just plain refuse to talk about it at all. And there are those who just want to rant and rave about how ungrateful you are and how they are going to "take you to cleaners" -- and so on and so on. The bottom line is that such hurt and angry people refuse to communicate meaningfully.

It doesn't happen often, but in some cases, one of the spouses attempts to hide a substantial asset or take some other dishonest action. It may be he or she hates the other so much that he or she will tell any lie or conceal any asset available, is having an affair with a new lover, especially when that paramour has experience in business and finance, is so surprised and injured by the idea of a divorce that all he or she can think of is getting revenge, or is so fixated on acquiring wealth that he or she will do almost anything for a few more dollars.

Based upon personal, professional experience, a courtroom is the last place on earth, and the most expensive, to have important issues resolved.