Why High-Conflict Divorces Need Collaborative Law

I frequently find myself having conversations with people who mistakenly believe that divorcing couples must be amicable in order for a collaborative divorce process to work.  In fact, I would estimate that the majority of my divorce clients feel angry, distrustful, hurt, and/or not at all “collaborative” with their spouses.  In my practice, “collaborative” describes the way the professionals work together to meet the divorcing spouses’ needs.

When one party to a divorce is feeling anxious about becoming financially independent, worried about the divorce’s impact on the kids, suspicious that the other spouse might be hiding assets, or angry about how alimony payments will impede saving for retirement, what process would you choose for that situation?

COMMUNICATION BETWEEN SPOUSES

Typical divorce litigation – Many divorce attorneys advise their clients to minimize communication with other spouse, and defer all substantive topics to the lawyers’ negotiations.  Too often, even spouses who worked together fairly well at the beginning of the divorce will start to feel distanced and positional. 

Collaborative divorce process – Both spouses and their lawyers have a series of meetings to problem-solve all issues related to the divorce, with the lawyers setting ground rules to encourage productive communication. Both attorneys are trained mediators, skilled in deescalating conflict and improving communications even through high stress. The collaborative process begins with both spouses articulating their high-level goals for the future.

FILING OF THE DIVORCE PETITION

Typical divorce litigation – One lawyer files the divorce petition in court (before exploring whether the filing would narrow settlement options by limiting access to a mortgage refinance or new credit card), and delivers it to the other spouse, who might feel surprised or confronted by the quick unilateral action of a court filing. 

Collaborative divorce process – A divorce petition is filed when the spouses agree the timing is right, after considering financial and other impacts of having information about the pending divorce in the public record.

TEMPORARY FINANCIAL ARRANGEMENTS

Typical divorce litigation – One lawyer might seek temporary court orders to dictate short-term arrangements on parenting, finances, and housing – perhaps before the spouses have even discussed such topics.  By now, the spouses are likely to feel more distanced, more distrustful, and angrier about having someone else (a judge, the lawyers, the other spouse) trying to direct their lives and free will. 

Collaborative divorce process – In lieu going to court to seek temporary orders, which can cost thousands of dollars in attorney fees, the attorneys ask both spouses to sign a binding agreement on temporary financial arrangements, to protect assets and prevent unilateral action by one party.  If more detailed agreements are needed, the lawyers work together to help the spouses structure short-term budgets and parenting arrangements.

REVIEW OF ASSETS AND LIABILITIES

Typical divorce litigation – After both lawyers spend significant billable hours collecting and analyzing the same set of financial documents, one sends an offer letter to the other.  The offer letter outlines what one lawyer believes his or her client has a “right” to receive in the divorce, based on that lawyer’s best guess about how a judge might interpret Washington family law.  The offer letter generally wouldn’t address the needs of the other spouse.  The lawyers both view divorce as a zero-sum game, and each lawyer seeks to get as much as possible for just one party: his or her client. 

Collaborative divorce process – The attorneys hire one shared financial analyst (who bills less hourly than even one attorney) to review financial documents, prepare a net worth statement, project net worth, and model settlement scenarios that reflect both spouses’ goals for the future.  All professionals work toward an outcome that ensures that both parties will be OK.  When helpful, lawyers refer clients to vocational counselors to develop career plans, net worth projections are done, and financial plans for future success are made.

DEVELOPING CO-PARENTING NORMS

Typical divorce litigation – If conflicts arise about parenting, one lawyer will seek to have a guardian ad litem (or parenting evaluator) appointed who will interview and observe parents and kids, talk to parenting “references,” and ultimately write a report recommending which parent should “prevail” in his or desire for time with the kids. 

Collaborative divorce process – Parenting conflicts and disagreements are navigated with the help of a specially trained mental health professional, who can provide guidance on how best to support kids through divorce.  No expert judges which parent might be “better.”  Instead, resources are provided to ensure that both parents have the support and skills they need to be good co-parents. 

I’ve handled divorces involving infidelity, substance abuse, untreated mental illness, addiction, even domestic violence – all using the collaborative law approach.  All but about 5% of those cases successfully reached closure with the support of collaboratively trained professionals.  Collaborative law is not about being amicable and agreeable.  It’s about de-escalating tensions to reach effective solutions, helping spouses develop financial plans to ensure success for both, and giving parents tools to work through difficult kid-related issues that inevitably arise during and after divorce. 

Leigh Noffsinger