A Collaborative Divorce Lawyer’s Ten Tips for Couples and Their Therapists
By: Mark A. Springfield
The collaborative divorce process requires that divorcing spouses and their attorneys all agree not go to court while they are in the collaborative process. In addition they agree to fully and voluntarily disclose information, they agree that parenting decisions will be based on the best interests of the children, and they meet to negotiate the issues surrounding the divorce in “four-way conferences.” -- conferences that include the two spouses and their attorneys. In the rare instance that the parties are unable to reach agreement in the collaborative process, then different attorneys must be hired to take the matter to court.
Tip Number One: Focus on the issues that need to be resolved, rather than who’s at fault.
Couples who are separating and who have minor children must decide how they will: (1) co-parent from two households, (2) divide the property and debts that have been accumulated during the marriage, and (3) handle the cash flow needs of the two households going forward. Focus on meeting needs, rather than who’s to blame.
Tip Number Two: In looking for workable strategies for co-parenting, dividing property, and handling cash-flow needs, realize that the well-being of one spouse is inevitably linked to the well-being of the other spouse.
When conflict arises, it is natural to become self-absorbed and not see the other perspective. It can also be tempting to believe that the other spouse’s well-being is not important, especially if one spouse believes that the other spouse is at fault for the separation. Pursuing a strategy that fails to account for the well-being of the other spouse, as well as one’s own, however, is nearly always self-defeating.
Tip Number Three: Consciously decide on a process for reaching workable strategies.
People may not be aware that when they go to a traditional family-law attorney for help with a divorce, they are choosing a process. By and large it is an adversarial process in which the lawyers determine the outcome. Individuals should consider the costs of such a process, not only financially, but emotionally as well.
Tip Number Four: Consider the collaborative process for divorce as an alternative.
People may also not be aware that they have alternatives to the traditional family-law process. The collaborative process is a non-adversarial process in which the couple, rather than lawyers, determines the outcome with the skilled help of collaborative attorneys who have agreed that they will not go to court, and who will help their clients effectively assert their interests and needs in win/win negotiations.
Tip Number Five: Avoid unannounced, unilateral actions that impact the other spouse.
Some of what passes for legal advice among traditional family law attorneys is advice to take unilateral actions such as moving money from joint bank accounts before letting the other spouse know. Before taking unilateral actions, consider carefully that a collaborative process will be more difficult if not impossible afterwards. Consider, too, that hiring an attorney before a couple jointly decides on a process is a unilateral action likely to make a collaborative process difficult.
Tip Number Six: Think of the law as the community’s standard for resolving the issues of co-parenting, property division, and cash flow.
The law can be used to find fault, lay blame, determine entitlements, and force compliance with demands. Using the law in this way nearly always creates resistance and a destructive counter-effort by the other spouse. The law is more effectively used simply as information about what the community has deemed to be fair and appropriate for people separating and divorcing. This information can be used, particularly in the collaborative process, to help the couple in their own search for strategies that protect the well-being of both of them, as well as their children.
Tip Number Seven: Avoid heavily freighted legal jargon.
It is not necessary or even helpful for a father to hear that he will have “visitation” and his wife will have “custody” (or vice versa) when couples are struggling to figure out how to co-parent from two households. It’s not necessary to demand “alimony” when asking for help with the cash flow needs of a household. It is not helpful to accuse one spouse of “abandonment” for having left the home. Avoid legal jargon and talk about needs and interests.
Tip Number Eight: Consider having the discussion about how to go about the divorce (what process to use) in the emotionally safe environment of the therapist’s office.
Discussing matters around divorce can be emotionally charged. The collaborative process attempts to provide an emotionally safe place in which to have these discussions. Until the collaborative process is started, however, a family counselor or therapist can provide the “safe container” for having discussions, particularly about the use of the collaborative process itself.
Tip Number Nine: Many lawyers now claim to practice collaboratively in family matters, but few have made it a substantial part of their family practice.
For an attorney, the collaborative approach to divorce is a substantial change in mindset and requires significantly different skills than in traditional advocacy. In identifying possible attorneys to handle a divorce collaboratively, consider the percentage of the attorney’s practice devoted to cases in which the attorney has actually signed a collaborative pledge in which he or she is disqualified from going to court.
Tip Number Ten: Visit www.NCdivorceinfo.com for more information about collaborative divorce and collaborative divorce attorneys.
Mark Springfield was among the first attorneys in North Carolina to seek training in the out-of-court approach to divorce called the Collaborative Process for Divorce. He has since stopped going to court in family matters and now only represents divorce clients in the collaborative process. His website can be found at www.markspringfield.com.
