Collaborative Divorce Softens Sting of Split

by Monica Steinisch

The average cost of a wedding today is more than $25,000. The cost of a litigated divorce�particularly if one or both of the parties is seeking revenge�can be just as high, or higher. Of course, instead of photos, flowers, and wedding favors, that sum instead pays for attorney's fees, court costs, and related expenses.

Wanting to avoid the high legal costs and unavoidable stress and unpleasantness of a courtroom divorce, some splitting couples are looking for alternatives to traditional divorce that will save them both money and heartache. What many are learning is that when "happily ever after" becomes "the end," collaborative divorce can be a preferable way to untie the knot.

Important differences between collaboration and mediation

In a litigated divorce, two attorneys duke it out, each one committed to securing the biggest piece of the pie for his or her client. While the process of a take-you-to-the-cleaners court fight can serve as catharsis for some bitter husbands and wives, it is routinely impersonal, extremely expensive, and emotionally damaging. The resulting settlement may reflect not what is fair, but who put up the harder fight.

Mediation, in which an impartial third party facilitates negotiations between the spouses, has for a long time been an attractive option for couples trying to avoid the high costs of a litigated divorce and maintain some sense of civility. Spouses involved in a mediated divorce still may choose to hire consulting attorneys, who more than likely will not attend the negotiation sessions, but are available to give legal advice between meetings. If negotiations break down, the spouses have the option to hire these attorneys to represent them in court.

Collaborative divorce, was started by a Minneapolis family lawyer, Stuart Webb in 1990, and builds on some of the precepts of mediation. Both methods are based on open and honest communication�spouses are expected to come clean about assets and any other information that would be germane to the discussions. And the goal of both processes is to negotiate a fair settlement�one that meets everyone's most important needs and does not favor one side over the other�without using the court to decide any issues.

Unlike mediation, the collaborative divorce model has at its heart a support network that guides, assists, and buoys the couple through the process. The core team of professionals typically consists of two attorneys and two coaches (licensed therapists who help the spouses improve their communication and negotiation skills and deal with emotional issues that arise throughout the divorce process) who have been specially trained in collaborative law; a shared financial consultant; and, if there are children, a single child specialist. Other professionals can be brought onto the team if needed.

The attorneys typically attend every discussion session, while the other team members might attend every time or only as requested. Since there is no mediator to help negotiations go smoothly, that task is entirely up to the clients and their attorneys, who in a litigated case would be fierce adversaries rather than cooperative facilitators.

A collaborative divorce also requires a contractual agreement that all professionals working on the case will withdraw if negotiations break down and either client decides to sue. The prospect of losing a client or having to start from scratch with a new attorney is a big incentive for everyone to keep the process moving along smoothly.

Collaborative divorce promises benefits for many, drawbacks for some

Glenn, a San Francisco Bay Area executive who recently divorced his wife of 20 years, believes the collaborative process offers a number of advantages over a litigated divorce, or even mediation. Not only did he find a collaborative divorce "way cheaper" than a court divorce would have been in his case, Glenn says the process gives spouses time to come to terms with the legal and emotional issues of the split.

"My view at the time was that the process went way too slow," recalls Glenn. "But, as I look back on it, it was a little bit like therapy. It created the opportunity to begin the healing process."

That slower pace, which Glenn now sees as "almost a cathartic process," may be a drawback to spouses who just can't part company fast enough. As participants in the process observe, the speed of a collaborative divorce is dictated, to a large degree, by how quickly the slowest spouse moves, which may not be nearly fast enough for the other one.

Glenn also appreciated the freedom to "do stuff that's really unconventional." For example, his wife's brother was allowed to attend all the sessions to provide additional support. And there also were some aspects of the final settlement that Glenn says just wouldn't have happened the same way in a court.

"We were able to do some creative financing, which made it so we both could come out of this in a way that bought us some flexibility," he said. "In the collaborative process, it's your decision, not a mediator's or the court's."

While Glenn felt that he saved money by avoiding court, collaborative divorce is not an inexpensive process, and it may not be the least expensive option in every case. According to Ellen Hirvela, a mediator and collaborative attorney and the current president of the Coalition for Collaborative Divorce serving Los Angeles and Ventura Counties, it can be less expensive to use mediation if the couple has few issues to hash out. On the other hand, she says, when lawyers go to court, even on a case with a few basic issues, it could end up costing parties $15,000 to $20,000 each.

Ultimately, the final cost of a collaborative divorce will depend on the lawyers' and other team members' hourly rate, the number of meetings needed from start to settlement, and the complexity of the issues to be resolved. One thing that won't appear on the bill: the cost of waging a long, drawn-out legal battle in court.

Some would say the greatest benefit of a collaborative divorce is not a smaller bottom line, but how the process paves the way for a civil relationship after the divorce has been finalized.

"[Collaborative divorce] forces you to sit and talk to each other like you wouldn't do in any other process," says Glenn. "This process will not only handle your legal issues, it will put you way ahead in terms of how you're going to interact with your spouse moving forward."

Consider goals, relationship when choosing process

Since negotiating fairly and respectfully�or even sitting across the table from each other�can be a tall order for some divorcing spouses, the collaborative process isn't ideal for every couple.

Sandra Blair, a collaborative practice attorney, mediator, and private judge who also is the current chair of Collaborative Practice San Francisco, recalls a former client who truly wanted to give the collaborative divorce process a shot, even though she didn't trust her husband. As part of the negotiations, the husband agreed not to sell any of the couple's community property. His wife later caught him trying to sell some of their joint assets on eBay. The case proceeded to litigation.

Assuming there is still some faith and good will left in the relationship, collaborative divorce is an option.

Both Blair and Hirvela find that collaborative divorce can be particularly well suited to couples who have been married a long time and have more complex issues to negotiate, such as child custody arrangements, child and spousal support payments, and division of a complicated financial estate. With attorneys present at all meetings, and a complete team of experts working on behalf of both parties, husband and wife can feel like they are on an equal footing as they make their way toward an equitable settlement.

"Collaborative divorce allows couples with a long history to avoid having to divide their intangible estate of mutual friends, kids, grandkids, and other personal ties," observes Blair, who says she has worked on a lot of cases where people have been together for many years. "It's such a kind and sensitive way to end a long-term partnership."

The collaborative approach also can be particularly beneficial for couples with children. In addition to including a child specialist on the team to assess and see to the needs of the kids during the process and in the settlement, collaborative divorce sets the stage for a civil and cooperative parenting relationship over the long term. Glenn notes that in his own divorce, it was stipulated that he and his now ex-wife see a co-parenting counselor, something he believes wouldn't have happened otherwise.

Though some proponents of the movement are predicting a sort of collaborative divorce revolution, it still is a relatively unique approach. If you and your spouse are heading for separate addresses and want to try a collaborative divorce, make sure you retain lawyers who are trained in the process. They will help put together the rest of the team.

If the process works the way it should, you'll still be able to look at your wedding pictures and conjure up some fond memories.

October 23, 2006