“What would I get in divorce court?”

The place of the law in the collaborative process...

Almost every divorce client, at some point, inevitably asks me, “What would I get if I went to court?”  We collaborative attorneys struggle to know how to respond, because one tenet of a collaborative divorce is that the spouses are not bound by what a judge would order but instead are free to create their own solutions to property division, parenting, and ongoing support.  We shift the focus away from the law so that collaborative settlements can be based on what feels fair and right within the clients’ values and interests.  Nonetheless, clients and attorneys alike get hung up on whether the divorce settlement options look similar to likely outcomes in court.  I’ve even had lengthy conversations with colleagues about our malpractice risk if we allow clients to sign an agreement before being thoroughly briefed on THE LAW and the degree to which their agreement might deviate from that golden standard.

This conflict is hard to resolve.  Collaborative attorneys believe clients should have the power to self-determine and not have a stranger in a black robe dictate with a gavel how they share their finances, their homes, and their children.  But we also have been trained to hold ultimate respect for the law as the embodiment of societal norms of fairness.  So doesn’t it seem reasonable that we should share our knowledge of those “norms” with clients, to help inform the divorce decisions even in a collaborative process? Maybe.

But consider this: I recently heard from lawyers who practice on the East Coast that a well-compensated professional who works in Manhattan and has a 50/50 parenting plan would pay one amount of child support if s/he commutes home to New Jersey.  And if that same person commutes home to another area in New York, s/he would pay about four times more in child support.  A lawyer from Florida explained that a stay-at-home parent getting a divorce there after an 18-year marriage would receive spousal maintenance (alimony) for life, at a level that would enable a comparable lifestyle to his/her ex-spouse.  In Texas, even if one spouse earns a million dollars a year, the stay-at-home spouse might only receive only a few thousand dollars a month in spousal maintenance, and for a maximum of three years.  In Australia and Israel, apparently no one receives any spousal maintenance.  

So which of these jurisdictions provides the best measure of fairness?  Which do you agree with? Are there any that you believe are unfair?  How would you feel about some of these differing laws being applied to your family? 

In Washington state courts, like many others, the law provides a cookie cutter outline that can provide a relatively quick and uniform answer to the complicated problem of divorce.  In a collaborative process, we aim for customized solutions that honor each spouse’s values, and enable both to move forward feeling that their goals have been considered by the other.  Do our collaborative settlements look similar to court-imposed outcomes?  Sometimes.  But even in those instances, clients always feel more invested and satisfied with a solution they have built together.  Judges know lots about family law... but very little about the family being reconfigured. 

In situations requiring protection for disempowered citizens or those needing protection or justice, the legislature and judiciary certainly have their places. But in collaborative divorce, who better to create the “law” of how to divide assets and liabilities, and share the responsibilities of co-parenting than clients? 

Leigh Noffsinger