Couples divorce in unity
Approach aimed at happier endings
Sunday, November 23, 2003
By TRISH WILSON, Staff Writer
It wasn't infidelity, or abuse, or anything dramatic that killed the love between Maureen and John Cardin. The long decline began years earlier with small disagreements that came too often and went unresolved too long. After more than 25 years together, it seemed they could talk about nothing before it turned into a fight.
In the end, Maureen and John Cardin would say they didn't have a very good marriage. But they got a very good divorce.
Instead of hiring attorneys to fight it out in court, the Raleigh couple opted for a "collaborative law" divorce, a new approach that could fundamentally change the way couples divorce and their relationship for years afterward.
The Cardins each chose a lawyer who promised to sit down with them as a foursome and help them divvy up the remains of their marriage in a civilized manner. The attorneys signed a contract preventing them from taking the case to court if negotiations broke down -- a common threat in divorces.
The goal was not to give a judge or mediator the power to decide their future, but to use the lawyers to help the couple fashion a separation agreement in which both sides would win.
"Marriages can end," said Mark A. Springfield, Maureen Cardin's attorney. "Divorce is forever."
Especially when children are involved. The Cardins have three, two adult sons and a daughter in high school. Springfield's goal, he said, was to make it possible for each parent "to go to their daughter's wedding and sit on the same side of the church."
Last year, Springfield and three other lawyers formed Carolina Collaborative Law Group, a loose association of lawyers trained in the new method whose brochure promises "peaceful conflict resolution and caring representation during divorce." At least 29 other divorce lawyers in Wake County and 22 more in Durham and Orange offer the same service or soon will.
They take the training partly to stay current in their specialty, but some lawyers also say they are pleased to be helping clients forge a better future rather than waging a war with no real winners.
In July, the state legislature passed a law that allows people who opt for collaborative law to sidestep the legal deadlines that are set when divorce actions are filed in court. That way, deadlines are frozen while the two sides work out an agreement.
"As soon as you kick into the timelines, the fees start going up, and people become more adversarial,'' said Tom Dimmock, a Raleigh family law attorney who worked on the legislation and is a member of Wake County Collaborative Family Law Group, an association of 12 to 15 lawyers. "Then you're forced into court dates and hearings, which are adversarial, and your chances of getting someone in a posture of thinking of what's best are gone."
Local divorce attorneys say 90 percent to 95 percent of their cases settle; the rest get litigated -- usually brutally -- before a judge. Across the state, more than 37,000 people divorced in 2001.
But even as attorneys negotiate settlements, they're not looking out for the best interests of two people. They represent their client, and the client often wants the best custody deal, the best child-support deal, the most money possible, and revenge. The attorney becomes a human weapon.
The cost of splitting
Divorce can get ugly right from the start. Often the parties won't share their financial documents, so attorneys hired at $200 to $250 an hour write each other letters or subpoena copies of checkbooks and 401(k) statements.
In the collaborative setting, everyone agrees to disclose finances and brings records to the negotiating sessions.
In a traditional divorce, a couple is often at the mercy of a judge's overbooked calendar. They hire attorneys to show up on a Monday in October, and the case doesn't get heard until six or nine weeks later.
"It drives up the fees; it drives people crazy," Dimmock said. "It's not good for kids, and it's not good for life."
Maureen Cardin had never heard about collaborative divorce when she first went to find an attorney, two years after she and her husband separated in 2001.
"I'd always heard that you could spend thousands and thousands of dollars paying attorney's fees, and I thought, 'How in the heck are we going to do this?' " she said. One of her close friends divorced years ago, remarried and is still making payments to her divorce lawyer.
The Cardins were not rich. She works as a surgical coordinator for a group of physicians. He's a surveying technician with the city of Raleigh.
Maureen Cardin called a referral agency and paid $30 for a consultation. The attorney told her it would cost $3,500 just to get started. Divorce lawyers in the Triangle typically charge $5,000 to $10,000, though costs can escalate well past that sum if the spouses go to court instead of settling.
Spouses who mediate without lawyers can spend much less, though they don't have the benefit of legal representation.
Maureen Cardin didn't want to pay that much. The attorney suggested Springfield. He was just getting started in collaborative law -- hers was his first case -- so he offered to represent her for $1,000. These days, he charges a $2,500 flat fee if the parties can reach an agreement in no more than four sessions. Other attorneys say their fees will remain in the $5,000 to $10,000 range.
John Cardin was skeptical, but he agreed to hire Angela Haas, also a member of Carolina Collaborative Law Group. He wasn't out for blood.
"I didn't want to come away feeling like I'd gotten something over on her or that I would be putting her in a position where her future was going to be uncomfortable,'' he said.
The attorneys met separately with their clients and laid out the ground rules. There would be no finger-pointing, no fighting.
"They wanted us to come out equal,'' Maureen Cardin said. "We weren't there to sock it to the other person.''
The Cardins' issues were not that complicated. They needed to sell their home and divide the proceeds. There was the matter of spousal support and child support. Her car payments were a burden. His retirement plan was on the table, too.
The foursome met six times, in what they called "four-ways." It took several months, because the Cardins didn't want to sign anything until they sold their home. The sessions were emotionally trying, with the lawyers often refocusing their clients not on the past, but the future.
"What I tell my clients is, 'I'm here to represent your needs,' '' Springfield said. "But paradoxically, the best way to get your needs met is to figure out as creatively as possible the best way to get your ex-spouse's needs met."
The attorneys coached their clients in how to use "I messages" -- how they feel about something -- versus "you-did-this-to-me messages," which are hostile.
Parting with tradition
For lawyers schooled in how to win a fight, the switch to collaborative law can be a challenge. Instead of sharpening their knives for combat, they're going through two-day training seminars that draw on therapeutic techniques aimed at getting clients what they want without making the other spouse the casualty.
They're reading books titled "Getting to Yes," "Sticks and Stones" and "The Zen of Listening."
When Durham lawyer John Bowman heard about collaborative law a few years ago, he thought it was too good to be true. He contacted an attorney who offers training in the method, and 22 lawyers signed up. All of them later joined Triangle Collaborative Family Law, hopeful that the divorce system can be reformed.
"How do you feel like you won something when you've spent tens of thousands of dollars and said things about someone you can never take back, and then have to co-parent with that person?" Bowman asked. "It's very, very hard. You create a model where you have to go back to your lawyers, because God knows you can't go back to that person you just trashed in court."
Attorneys agree that not every divorcing spouse is cut out for collaboration, nor all attorneys, either. But that's fine, Dimmock said.
"If your goal is to hurt the other one, then we know what your goal is,'' Dimmock said. "If you're not interested in being fair and reasonable, this isn't for you.''
Finding a collaborator
The trick to making collaborative divorce work for many clients, attorneys say, is to have a lot of attorneys around who can do it.
Lee Rosen is a partner in Rosen Law Firm, a 12-member firm based in Raleigh that works exclusively on divorce cases. According to Rosen, his firm is the largest divorce firm on the East Coast, and he has hired a collaborative law expert to train all his associates next month. That's a lot of divorce lawyers.
"If he directs them to collaborative law, it could have a big impact on what happens in Wake County,'' said Springfield, Cardin's attorney.
That's because once an attorney agrees to collaboration, he must sign a pledge saying he will drop the case if it has to go to court. No one in his firm can pick up the case, either, Springfield said, so there's an incentive for both the client and the attorney to make it work.
Rosen said the fresh approach could keep turnover down. Being a divorce lawyer, stoking the miseries of a disintegrating family, is no fun.
"It's a trained person on the other side whose job is to screw around with you,'' he said. "The typical life span of a divorce lawyer is just four and five years. It's burnout. It's horrible."
To make it easier for divorcing spouses to each find collaborative law attorneys, the N.C. State Bar has issued an ethics rule allowing attorneys to write to the opposing spouse listing other collaborative lawyers. But Rosen doesn't think that will help.
"They're not interested in taking advice from us," Rosen said. "That's the glitch."
Collaborative law attorneys are hoping that more of their brethren will climb aboard as a matter of survival, if not choice.
Certainly collaboration worked for the Cardins. On Sept. 25, they and their lawyers met for the last time to sign the divorce agreement. The house had sold. Everything had been divided. Each had spoken, and been listened to.
"It was kind of sad,'' Maureen Cardin said. "You think of all those years. All those things you did with your children. And it's all gone."
They cried. They hugged. He offered to help her move, and later did. They told each other they wanted to be friends, and maybe they will be.
It was in their divorcing that they learned how to get along.
Reprinted with permission of The News & Observer of Raleigh, North Carolina. Reproduction does not imply endorsement by The News & Observer or its affiliates
