DISPELLING THE TOP MISCONCEPTIONS ABOUT COLLABORTIVE LAW
Although few divorces feel amicable to both spouses, the adversarial process offered by the court system almost always does more harm than good when it comes to family law. And yet, the majority of divorcing couples too often default to a litigated process. I think one cause for that relates to some common misconceptions still circulating about collaborative law:
MISCONCEPTION #1: Collaborative law is more expensive than other divorce processes.
TRUTH: Collaborative law generally costs 80% of a traditional process. Our practice group’s anecdotal case data, confirmed by national statistics, shows that collaborative divorces cost about 20 percent less than a traditional process with lawyers not trained in collaborative law. Collaborative law has built-in efficiencies that other processes do not:
Rather than both lawyers completing the due diligence of reviewing all financial documents (tax returns, account statements, pension plans, etc.), in a collaborative process both lawyers delegate that work to a neutral financial analyst. That way clients pay just one professional with a lower hourly rate (rather than two lawyers) to compile the necessary financial information prior to settlement.
A collaborative process also involves a series of meetings with both spouses and both lawyers, in which all relevant issues are discussed in real time -- rather than the expensive “game of telephone” when lawyers trade offer and counter-offers back in forth and much gets lost in translation.
MISCONCEPTION #2: Collaborative law is only for spouses who feel friendly, trusting and “collaborative” toward each other.
TRUTH: Recent collaborative cases in our practice group have involved suspicions about one spouse hiding money, families struggling with the effects of mental illness and addictions, spouses with a history of domestic violence, and couples in high conflict. I’ve come to believe these sorts of cases actually need a collaborative approach more than “easier” cases. I often explain that “collaborative” describes the way the professionals work together (not necessarily the spouses). When families need coordinated support and conflict resolution for fragile situations, When professionals collaborate, that does not mean clients don’t receive strong advocacy. It simply means that advocacy for one spouse won’t trump all other considerations, such as preserving long-term family relationships, keeping lawyer fees in check, and bringing a reasonable perspective including the interests and long-term well being for all family members.
MISCONCEPTION #3: In collaborative divorce, I would probably get a worse settlement.
TRUTH: Outcomes -- asset division, child support, parenting plan -- achieved in collaborative law almost always fall within the likely range of what a judge would decide. When they don’t, it’s because both spouses agree they want to deviate from the norms that could expect in court. And those decisions aren’t made until after both parties receive plenty of legal advice from their lawyers, and carefully weigh the pros and cons.
MISCONCEPTION #4: It often doesn’t work, and then the clients have to start over with new lawyers.
TRUTH: Collaborative law works well in almost all cases. A very tiny percentage of our practice group’s collaborative cases have not successfully reached completion. In the last seven years, only two of my collaborative cases have required referrals to non-collaborative lawyers because we could not reach resolution.
MISCONCEPTION #5: Collaborative law isn’t much different from traditional divorce, especially if I hire a reasonable lawyer who’s not a bulldog.
TRUTH: Traditional divorce takes an arguably old-fashioned approach, in which a paternalistic lawyer directs the case and the clients, while looking for arguments that his or her client should "get" more. Even the most reasonable divorce attorneys use a very different process -- rooted in the adversarial and formal court system -- for reaching resolution. Collaborative law differs in many fundamental ways:
Its structured meetings-based approach maximizes efficient and direct communications and avoids many misunderstandings and wrong assumptions.
Surprises in the context of divorce almost always compromise trust and prompt strong negative reactions. In the collaborative process, we work hard to avoid surprises. Everything from the filing the divorce petition and setting meeting agendas to making plans for financial arrangements are done with input from both spouses.
Collaborative lawyers counsel clients toward deescalating conflict through creative problem solving. Traditional divorce attorneys must, because of their role within an adversarial system, take their clients’ “side,” inevitably resulting in a win-lose mindset to resolving problems.
In traditional divorce, the lawyers -- at their high hourly rate -- do a huge range of tasks, some outside of their specialized expertise: analyzing tax returns, considering parenting plan provisions, anticipating tax concerns, counseling emotional clients. In collaborative divorce, neutral financial analysts assist with evaluating assets and liabilities, mental health professionals help develop plans for parenting kids and assist with the emotional side of divorce. Those other professionals have more in-depth training in certain areas and typically charge a lower hourly fee. As a result, clients get more specialized support at a lower cost.
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.