Nothing can make divorce pleasant, but it doesn’t have to be as bad as it generally is. Here are some things I’ve learned from being a divorce attorney.
Divorce as usual
Here’s a common scenario:
A separating couple, having heard horror stories of other divorces and wanting to do it differently, set out to divorce amicably. Yes, their marriage is ending, but they are not enemies, and they intend to keep it that way.
But divorce is a legal process, so lawyers become involved. Things quickly get out of the couple’s control, with the attorneys managing the process and funneling the communication. This is not exactly a trust-building exercise for the couple.
They spend a lot of time waiting for the case to come to court. When they finally get to court, the process is rushed and they are surprised to learn that they don’t get to tell their stories. In the end, a judge decides what is best for them and for their children.
Then the process is over. The lawyers and judges disappear and the couple is then left to clean up the battlefield. It’s up to them to figure out how to relate to each other with dignity again. It’s a lousy start to a new life.
Unfortunately for all of us who embark on it, traditional divorce is truly adversarial. When the stakes are high, which they are in most divorces, situations can escalate and results can be tragic. And very expensive.
Experience is a great teacher
Some of you may be thinking that this whole mess is the fault of lawyers, and in a way, you’re right. But I’m convinced that it’s not that simple – the problem is the system.
I know about this kind of divorce. Fresh out of law school, I joined a firm. One month later, when I was still getting my feet wet, one of my partners died, and I suddenly inherited 185 active divorce and custody litigation cases. This was quite an introduction to family law – I call it my “baptism by flame-thrower.”
I handled these cases as well as I could, faithfully litigating on behalf of my clients, as everyone expected me to do. Without going into the gory details (and believe me, there’s some gore), here’s what happened: Families came to me, and I wanted to help them. I was a lawyer; I knew how. But when it was over, the relationships were almost always worse than they were at the beginning. Clients were not happy, even when they won! And for me, it often felt as if I’d helped to cut a baby in half. This doesn’t make for good sleeping at night.
Even with my good training and best intentions, it wasn’t working. I became convinced that the system . . . the process . . . the way we approach these situations is what makes them worse. The system, at its very core, pits the two against each other. It’s designed to do that. That’s the heart of the problem. But what else is there?
The kitchen table
To avoid the hostility, some people take the “kitchen table” approach. The partners sit down together to work out an agreement. It’s very good when couples can do this, a good sign. And it can work very well, especially when the issues are not complex and the couple is good at working out fair solutions.
With no outside help, however, important issues may remain unaddressed, only to rear their ugly heads later. Separating couples understandably may focus on the more immediate questions, but important long-term issues abound, including how to pay for college tuition, or medical bills, or musical instruments. The needs of children evolve with time. Even with no children, there are long-range questions. And don’t get me started on tax issues!
Mediation
A second good option for some is mediation, in which a trained mediator helps the couple to work through issues and reach a Memorandum of Agreement. Mediation is an excellent method for resolving conflicts. Especially when the issues are primarily emotional and logistic, mediation can be a tremendous tool.
There is one very real danger, and it comes into play when there are issues that need the attention of an attorney, which is not unusual. After the mediation, when the separating partners believe they have resolved everything, they still need legal documents, so they come to me. I look at their agreement, and must give them the incredibly bad news that they are not finished, that there are unresolved legal issues; not just picky things, but serious future issues which I sincerely believe could come back to haunt them. Many divorced couples end up back in court again and again over years. I want to prevent this, but this means more time and energy, more potential conflict and more expense, when all concerned just want it to be over. This is terribly frustrating and discouraging.
A better way
Until recently, there were no other choices, especially for a couple with any complexity in their situation.
Now, however, there is an increasingly popular alternative called “collaborative divorce” which is being welcomed wholeheartedly by struggling couples and exhausted family lawyers across the country. It’s not magic. It doesn’t make divorce fun. But it is a sensible, respectful, constructive process, and it works. I’ve seen it work, over and over.
Collaborative divorce involves two specially-trained collaborative practice lawyers, one for each client. In the best case, these lawyers are experienced with North Carolina family law and have worked together before, so there is a foundation of trust and respect between them. The four people work together to create a long-lasting agreement. The process is designed to do this. It takes the four of us out of the “Us vs. Them”/win-lose paradigm and into one which recognizes that, with good guidance, a separating couple can design their own creative, long-term solution.
The lawyers know North Carolina law and the collaborative method of divorce, while the separating partners know their issues, their history, their needs, and those of their family. In a healthy process, they can determine a fair result better than any judge could.
Benefits to the attorneys
Practicing collaborative law means that attorneys can feel good about the work done. We work on divorces with other collaborative law attorneys who are liked, trusted and respected. We belong to an organization which is working to make this option available to more and more people in western North Carolina who are facing separation and divorce.
Imagine the difference it makes to be part of something that is healing, rather than destructive, day in and day out.
Benefits to the separating partners
Control over outcome. The decisions are made by the couple, not a disinterested and overworked judge. When people feel out of control, they often resort to negative and unproductive behavior. A sense of control helps everyone to collaborate. In collaborative divorce, the solutions are based on the needs of the entire family.
Control over pace. The four people involved, not a choked judicial system, control the pace, which is much more deliberate – but ironically often much faster – than a litigated divorce.
Less expensive. Collaborative divorce does not involve the expensive discovery process, or the long, pitched battle of litigated divorce, so it is generally less expensive.
More privacy. The couple’s private issues and records are not made public, as they are in a litigated divorce.
Future relationship. Trust is built. The collaborative process and agreement lay the foundation for the future relationship. When there are children, the divorced couple will still be parents and grandparents together for a very long time. There will be all the occasions of a lifetime (graduations, births, weddings, etc.) in which both will want to participate. Being divorced well is possible.
Guiding principles
Commitment to the process. Each spouse and each attorney signs an agreement not to go to court. This means that, when the going gets tough, we attorneys can’t slam fists on the table, saying, “See you in court!” Instead, we have to really roll up our sleeves. We all know that if the process completely breaks down, the attorneys will have to withdraw, and the couple will end up in court with different attorneys. No one wants this.
Needs and interests, not positions. The best agreement, the one which will last, is one that is fair and takes everyone’s needs and interests into account. It is not necessary for one side to win at the expense of the other. Creative solutions are possible when couples focus together on getting everyone’s needs met.
Sunlight as the best disinfectant. Instead of the traditional legal discovery process, the couple commits to sharing information openly. After initial client meetings, all meetings are four-way, involving both partners and both lawyers. There are no secrets.
Good legal guidance. The process is guided by experienced attorneys who understand the pitfalls of separation and divorce, and are good at helping couples through them. Both the means and the end can be healthy and good.
Flat fee. Attorneys may charge a flat fee for the process. One of the benefits is that the client knows up front how much cost will be incurred.
Who can use this process?
People sometimes say, “I would use this process, but I don’t think my partner would.” While it’s true that there are people who are not good candidates for this process (the truly vindictive, for example), it is often possible to reach a partner on a practical level, if the idea of better future relationships is not convincing. The collaborative law process is more likely to get both parties what they need, and besides, people generally want to avoid unnecessary attorney’s fees.
A good divorce is possible
Divorce is like a room with two doors, through which the couple will leave the marriage. Blocking each door is a pile of luggage, full of all the history and emotions that led to the separation. To make it possible for the couple to leave the room to begin their new lives, our job in collaborative divorce is to move these valises out of the doorways, not to rummage through them, except to the extent necessary. We hope that, through this process, the parties can each leave the door open, swinging freely, and can come back into the room as appropriate and meet the other here to discuss whatever matters come up (parenting, money, etc.). We believe that this room need not be an ugly battleground, but a good workroom which holds some common interests and the tools for accomplishing whatever needs to be done.
