Alternatives to Traditional Divorce Litigation
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By Roy N. Martin, Attorney At Law
Published: March 05, 2005 |
Divorce is hard. It's painful and scary, almost always. I know this from eight years' work as a divorce attorney, and from my own difficult divorce while I was still in law school. That soul-searing experience has never left me. Back then, I approached the mailbox each day with fear and dread, never knowing what accusation would be hurled like a hand grenade by my wife's attorney in what came to feel like a war between me and the partner I once loved.
Our divorce, like so many, was one of scorched earth tactics, initiated without thought to the cost inflicted upon us and our children. What I didn't know at the time was it doesn't have to be this way, and that this painful experience would shape the kind of attorney I would become.
"I felt like my ex-husband's lawyer was taking care of me as much as my lawyer in making sure that I could make it financially and have a nice place for the girls to live, and that makes me want to be good to Mike," a woman said recently after her divorce was concluded out of court and amicably. Lynn and her husband, Mike, used an alternative method I and 14 other local attorneys practice, called Collaborative Divorce.
Lynn and Mike had reason enough to feel angry and hurt, like every other divorcing couple. Each felt tempted at times to get a traditional adversarial attorney and take their pain and anger out on the other. But they had two daughters to raise and saw the wisdom of preserving enough goodwill toward each other to parent cooperatively.
They chose Collaborative Divorce because they knew it would give them the best chance of achieving that end. In Collaborative Divorce, the parties sign a legally binding agreement not to take the case to court. This fundamentally changes the dynamic of the case. Now, neither spouse can win at the expense of the other. Everyone is on the same team and the case won't work for anyone unless it works for everyone.
Collaborative Divorce also does something else traditional divorce doesn't do: it recognizes the value of intangibles, such as the ability to parent cooperatively. Traditional divorce focuses on the value of financial assets. By failing to value intangibles, it encourages people to disregard them. As a result, the most valuable assets of all are often destroyed. When couples come to my office, I ask, "What would it be worth to dance at your daughter's wedding?"
Emotional safety is paramount in Collaborative Divorce. Therapists can be used as coaches for the spouses or to address the needs of children, giving all family members a voice in the process. When the case is settled, people feel good about themselves and each other. "Even when you get the final legal papers," said Mike, "it's odd to see that: you versus the other person. Even seeing that on the paperwork was not representative of what I felt."
Another couple came to see me recently. They had no children and few common assets. They were considering mediation, but the husband, Dan, was recalcitrant. His wife had left him. He was angry and seemed bent on revenge. He said he wasn't willing to compromise much if at all. He insisted it was all about money and was confident a judge would see things his way. But he decided to give mediation a try.
Dan had lived in the couple's home during a long separation, preparing it for sale and trying to get the best price possible. He felt strongly that Seila was entitled to only a small slice of equity and wouldn't budge. "It isn't fair," Dan said. "She left me."
Dan was angry. Beneath the anger was a lot of pain. Living alone in the home, around every corner, in every room, he endured reminders of his wife's absence. He said, "At times I wanted to burn the house down." The situation seemed utterly unfair. He felt he was entitled to everything. But the dispute wasn't really about money.
We talked about the value of the tangible asset: the home. Dan wouldn't budge. Then we talked about the intangible asset: goodwill. "What would it be worth," I asked, "to honor the love you once had for each other? What is it worth to walk away friends rather than enemies?" I can't tell people what that intangible is worth to them. But I can say it is always worth something.
Dan thought for a moment. Then his face softened, and it wasn't long before he made an offer. Soon after, we had an agreement. A couple that could have spent thousands of dollars on attorneys and parted hating each other had resolved their differences amicably and parted friends.
This is why I love my work. Alternative dispute resolution challenges the notion that divorce has to be adversarial. It proposes a new kind of family law practice: one that never underestimates the value of an open heart; that trusts people can be their best selves even, perhaps especially, in trying times; and believes the best results come from creating the emotional safety necessary to make that possible.