Why I Prefer the Collaborative Divorce Process Over the Traditional Litigated Divorce
Posted By Administrator on March 17, 2010
In the last two weeks, I have participated as an attorney in 2 traditional court-based divorces and 2 collaborative divorces. For what it’s worth, I wholeheartedly prefer the latter process to the former. Why? It’s simple: collaborative divorce is all about respect, dignity and civility.
Everyone knows at least one person who has experienced divorce. Many people who have been through the ordeal of a traditional litigated divorce will say that it was one of the worst and most stressful experiences of their lives. 
They recall – usually with a shudder – the hours and hours spent in the court house, waiting for their case to be called so that their attorneys could argue yet another motion. They speak of the hurtful things their soon-to-be-ex spouse said about them on the witness stand. And they remember bitterly the emotional and financial cost of a litigated divorce. That old movie, “The War of the Roses” comes to mind.
When engaged in a litigated divorce, I have honestly had to remind my opposing counsel that “this is not our divorce.” One attorney was so engrossed in his adversarial role that he would actually walk away from me in mid-sentence when I didn’t agree with him. If we were ‘negotiating’ on the phone (and I use the term loosely because he was one of those guys who liked to demand rather than suggest anything), he’d hang up in my ear when he didn’t get his way. I often grow tired of the ‘my client is right and your client is wrong’ mentality. Oh, please. It takes 2 to tango. Or rumba, for that matter. Okay, to be fair – and honest — not all lawyers engage in such behavior. But sometimes it feels as if we’re all at war. I’m thinking “The War of the Roses” again. Maybe I should rent it.
I have spent time in court trying to present the facts to a judge while opposing counsel jumps up and objects to everything I say. “Attorney Olszewski appearing for” – “OBJECTION!” “My client would like to” – “OBJECTION!” It is annoying, at best. Even the judge thinks so. Sometimes they tell the other lawyer to be quiet and sit down. I love when that happens. I feel a silly urge to stick my tongue out at the other lawyer and say “nah nah nah nah nah nah” – but I don’t. I’m a big girl now.
By sharp contrast, when I am engaged in the collaborative divorce process, I don’t ever have to remind the attorney representing the other party that “this is not our divorce.” Nobody objects after every word I say. In fact, nobody objects at all. I don’t get the urge to stick my tongue out at the other lawyer. I’m pretty sure nobody gets the urge to stick their tongue out at me, although there’s always a first time for everything. Best of all, my blood pressure remains stable.
In the collaborative divorce process, the parties and their lawyers meet in one of the lawyers’ offices or conference rooms. The Summons and Complaint are not served upon one party by a marshal; they are handed to the person who will assume the role of defendant. The couple agrees to discuss all of the issues in a calm and reasonable fashion. They agree to exchange relevant information and documentation openly and freely, without having to draft a ton of motions and argue in court. (Think of how many trees are saved in the process!) The parties calmly and rationally present their concerns and goals. Sure, there are some emotional moments, but they are handled appropriately. At the end of each meeting, most clients leave feeling as if something has been accomplished. And they don’t feel as if they’ve been beaten up.
When children are involved, a neutral child specialist may be called in to assist the parties in developing a workable parenting plan. The focus is on minimizing the trauma and damage that divorce can cause to a child. The parents are given the opportunity to “test” the proposed plans and solutions before memorializing them in the formal separation agreement. Honest discussion and brainstorming is the hallmark of the collaborative process and it works extremely well when children are involved.
If marital assets must be divided, the parties may work with a neutral financial professional who will analyze the assets and assist the parties in understanding the most fundamental reality of divorce: that there is only one marital “pot” of assets and it must be divided fairly so that each party (and the children) will be left in the best position to move forward. Rather than arguing and fighting over each asset, the financial neutral helps the couple to value those assets and provides real world solutions to otherwise difficult decisions.
Sadly, not every couple is suited for the collaborative process. Highly argumentative, abusive or controlling people would likely have a difficult time maintaining the level of civility, respect and dignity that is required of all the participants. For those unfortunate people, adversarial litigation is usually the only way to obtain a divorce. If you’re one of those highly argumentative, abusive or controlling people, do me a favor and call another attorney. Thanks. I’m trying to keep my blood pressure down. I’d be happy to recommend that lawyer who likes to hang up on me. I’m sure he’d take your case.
Divorce isn’t pleasant but it doesn’t have to be a nightmare. For those who are willing to at least TRY to separate their emotional pain, anger and disappointment over being stuck in a divorce from the REALITY that there WILL be a divorce no matter what, the collaborative process is a good choice. Such couples work with the collaborative team (their lawyers and the other professionals) to work out fair and equitable solutions that make sense in the long-term, not just the short-term. They are often surprised at how well they are able to communicate with their spouse in an environment that feels safe. They come away feeling that they have been treated fairly and with respect. They focus on themselves and their families, remembering the entire time that when the divorce ends, they can remain civil to each other rather than becoming bitter enemies. Think about that when you’re envisioning yourself and your ex-spouse at your daughter’s wedding 15 years from now.
If I had my way, I’d re-write the statutes to require that all divorcing couples must attempt the collaborative process before engaging in litigation. If couples have to divorce, they should at least try to do so with dignity and respect. Divorce doesn’t have to be a nightmare.
I think I’ll watch “The War of the Roses” now.
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