The Collaborative Divorce: A Litigator Explains
The Collaborative Divorce: A Litigator Explains
The decision to get divorced or end a marriage is one of the most difficult, chaotic and traumatic experiences two people can go through. Whether one is the initiator or one is the receiver of the decision to break up, this major life transition is often filled with a multitude of contradictory emotions such as resentment, guilt, doubt, relief, and fear.
The desire to “get even” or retaliate, against the offending partner is often costly during a litigated divorce. Each party can easily spend hundreds of thousands of dollars in an attempt to assign fault or blame. Communication for both parties often breaks down dramatically.
Attorneys take on the zealous goal to advocate in the best interest of their client, but sometimes the best interest of their client fails to recognize what is in the best interest of the children. During this litigation process, there can be a failure to understand what is in the psychological best interest of each member of the family in order to have a healthy, ongoing relationship. Going to court is expensive and risky, where a virtual stranger makes a decision that can affect the lives of everyone involved.
New York attorney, Jacqueline Newman, believes divorcing couples have other more advantageous options. Newman, a family law attorney and the managing partner at Berkman Bottger Newman and Schein in New York City, specializes in complex high net worth matrimonial cases. Her practice consists of litigation, collaborative law, and mediation. Jacqueline Newman says there are many potential advantages of the collaborative divorce vs a litigated divorce, as the name “collaborative” would imply. She believes a collaborative divorce is a process that encourages cooperation between parents seeking a divorce. Via this process, It is less stressful for children and is a process which can lead to creating better lives for each member of the family.
I interviewed this matrimonial expert, who has also appeared as a commentator on various television shows and quoted in multiple publications, to learn more about the potential advantages of the collaborative divorce.
Dr. Robi: What is a collaborative divorce process?
JN: The collaborative divorce model is a voluntary matrimonial dispute resolution process whereby both parties and their lawyers commit themselves to resolving their differences in a fair and equitable way without going to Court. In the event that the process breaks down, then those same attorneys cannot represent the clients in Court. The collaborative process also involves an interdisciplinary approach, which includes one or two divorce coaches (which are therapists trained in the collaborative process), a neutral financial and a child specialist, if applicable.
Dr. Robi: Who created this process?
JN: It is my understanding that the process was created by Stu Webb in 1990, but I have also heard that Curtis J. Romanowski thought of a similar concept in 1988 called Collaborative Dispute Resolution (CDR). See https://en.wikipedia.org/wiki/Collaborative_law.
Dr. Robi: How does this process facilitate families who are going through a divorce?
JN: There is no way to avoid the fact that divorce is a difficult process for any family. That said, I believe that the collaborative model is extremely sensitive to the family dynamic and works as hard as a process can to ensure that the family gets through this divorce as unscathed as possible. The collaborative model involves professionals that not only recognize the role that the law plays in divorce but also the role that emotions play in divorce. The use of a divorce coach is crucial for this. The divorce coach, is (in my opinion) integral to the collaborative process. This professional (or professionals if you have a two-coach model), helps with the communication aspect of divorce. I often call divorce coaches in the collaborative process the “translators.” When couples get married, they usually started out speaking in English to each other. However, by the time that this couple is divorcing, communication has broken down so much that one spouse is now speaking Mandarin while the other is speaking Portuguese. Divorce coaches have the magical ability to hear both parties, understanding their particular language and then translating it back to English so both parties can again understand what the other is saying. If one can remind divorcing couples how to communicate, this will be essential for allowing the family to remain intact and functional after the divorce is over.
Dr. Robi: Can any couple achieve this goal? As you know, many divorces can get pretty hostile and intense.
JN: Collaborative law is a self-selecting process – meaning that those people who chose it to allow it to succeed. Generally, the process works best for those couples who want a fair settlement, are able to take responsibility for their own decisions and do not want to spend years and hundreds of thousands of dollars fighting in Court.
So, for those that want to totally screw their spouse and are so drenched in anger and hate and do not care whether their money pays for their attorney’s children’s college or their own, the collaborative law process probably will not work. However, what many people who walk into my office requesting blood do not realize is that (generally) anger fades. A spouse who is so angry that she just learned of a spouse’s affair, may not feel as angry six months from now. She may actually thank the young bimbo for pushing a bad marriage over the edge and allowing everyone to stop pretending their lives were “Facebook perfect” and that this was a healthy relationship. So, if one could somehow be able to see past the anger to the future, the collaborative process may work for many couples who at first blush think it never could.
Dr. Robi: What type of benefits have you noticed since helping families work with this method?
JN: The greatest benefit I have seen for those couples who have gone through the collaborative process is that it allows a lot of emotional issues to enter the room that would be stifled in a litigation setting. A judge will divide your assets, set a custody schedule for your children and declare you legally divorced. But if the parties are not given the opportunity to work out the hurt and communication issues, the patterns that existed during the dysfunctional marriage may very well continue when the parties are divorced. Now, if there are no children involved and the parties can simply take their share of the assets and never see each other again, then it may be fine to leave the unresolved emotions on the table and each party can simply work them out with their individual therapists. But if there are children involved or if there is any other reason that the parties will need to continue to be in each other’s lives, then it may make sense to deal with some of the emotions so the couple can get along better in their divorced years than they did in their married years. I am not saying that the collaborative divorce meetings should be expensive, glorified couple’s counseling sessions, but I do think that dealing with the emotional components of divorce can help people heal quicker from the break-up and gain the coping skills to be able to co-parent in the future.
Dr. Robi: What kind of resources do you provide parents who are going through this process?
JN: I believe the interdisciplinary team are the greatest resources that can be provided during the divorce. The divorce coach is invaluable. A child specialist can be the person that meets with your children and allows their voices to be in the room (without actually being in the room and missing soccer practice). A financial neutral also be a great benefit to the financial savvy spouse and the spouse who may not have an MBA from Columbia.
Dr. Robi: What’s the difference between a collaborative divorce and a traditional divorce?
JN: A traditional divorce either involves court or has the threat of court lingering above when the parties are negotiating. This can be necessary at times, but mostly it just allows one party to constantly say “If you do not give me XYZ, then we are going to Court”. The problem is when you have one spouse who is the sole or primary breadwinner, that spouse may be liable to pay the majority of the counsel fees incurred during divorce. This gives an automatic leverage to the non-monied spouse to threaten court because he or she believes this trip to the Courthouse will be on the other party’s dime. For the monied spouse (and the person who may have a demanding job that does not allow for hours on end being spent sitting around a Court), this can push that person into an unfair settlement because the money is generally better spent by giving it to the spouse than the attorneys. In a collaborative divorce, that inherent leverage is taken away since there is an agreement not to go to Court. Now, obviously, if the process breaks down, then they may end up in Court. But they start out with the understanding that everyone is on a level playing field.
Collaborative settlements also have more of a family focused approach. It is less about getting every last dime, then figuring out a settlement that works for the entire family. It does not make much sense to have one spouse living in the luxury 5th Avenue apartment, while the other spouse is left penniless, living in a walk-up apartment above a smelly restaurant, when that spouse will be housing the children during his or her parenting time. Settlements need to work for both parties and I believe the collaborative model is cognizant of that and tries to structure deals to achieve that goal.
From a process standard, generally, the parties (and the interdisciplinary team, if appropriate) will have settlement meetings together, as opposed to the traditional negotiation model which can involve more meetings amongst the attorneys without the clients present. There is a general understanding that everyone is going to be transparent and fair.
Dr. Robi: Can this type of divorce help families spend less on what can be a very pricey journey?
JN: In a traditional setting, the financial and custody issues would be handled by the lawyers, at their legal billable rates. Instead, in the collaborative process, the parties are working with a financial neutral who is less expensive than two attorneys talking about the same thing. Similarly, with the divorce coaches and/or child specialists – it makes more sense for the parties to meet with the coaches/child specialists to work out custody issues, rather than have the two attorneys doing it. So, while I cannot say that a collaborative divorce is going to be cheap – it is generally less expensive than litigation!
Dr. Robi: How can people find you to learn more about you and your services?