Monday, May 5, 2008

A Radical Idea

Divorce has become extremely common. When fully half of all marriages end in divorce, and have done so for over a generation, it is very likely that everyone has been impacted by divorce in some way, or at least knows someone who has been through a divorce. It is also very likely that everyone has heard or experienced the "war stories" associated with divorce - the man who lost his children, the woman who was financially devastated... and probably everyone has seen that shell-shocked look in the eyes of the divorcing or recently-divorced. In a nutshell, "putting asunder" what had previously been "joined together" is a wrenching process.

In the past fifteen years or so, a radical new approach has been gaining ground. Pioneered by Stu Webb in Minnesota, and popularized in California by Pauline Tesler and Peggy Thompson, the collaborative procedure to divorce presents a true paradigm shift in the philosophy and attitude toward divorce. Changing this attitude provides many benefits, the most obvious of which is that it saves both time and money in the divorce. Studies over the long-term show that collaborative divorces cost significantly less money, and get finalized in court far more quickly. For a divorcing couple that wants to move on with their lives, without the wreckage of a knock-down, drag-out fight littering their landscape, collaborative divorce is a viable alternative.

Collaborative divorce is characterized by several key features: first and foremost, it recognizes that a large number of divorcing couples do *not* want to fight, and would avoid it if they knew how. Many couples instinctively realize that a "divorce war" will harm their children; some also realize that it will harm them, and reduce their chances of post-divorce recovery. So many of the good people that I've introduced to the idea of collaborative divorce respond with reactions along the lines of "you can do that?", or "that's legal?", or "but will we really be divorced?". The adversarial divorce is so entrenched in our society, that even when people would like a different way, they are unaware that one does exist.

Second, collaborative divorce takes a team approach. This means that everyone involved in helping a couple craft their post-marriage family structure agrees to participate in a good faith effort to the full extent of their knowledge, information, passion, and expertise. Adversarial techniques such as discovery are not needed, as the entire process is transparent to both parties, and to the experts involved. And experts are only involved on an as-needed basis, thus reducing the costs typically associated with an adversarial divorce. The overall outcome is that the right people are helping a family get through a most difficult time, with as little harm as possible.

Finally, the strength of collaborative divorce hinges on the idea that if either party decides to stop the collaborative process and litigate, then the entire team - attorneys, financial experts, mental health experts, everyone - is dissolved; and the parties must start over from scratch. This is a pretty large incentive for couples to stay with the collaborative process, even when things get difficult. And, it acknowledges that even in the face of the most positive approach, things will get difficult.

There are many benefits to a family for taking the collaborative approach. What I've observed, and heard in feedback from my clients, is that they appreciate the ability to remain in control of their divorce, all the way through, and to the final outcome. Each family is unique. There simply is no way that the state family code can craft a one-size-fits-all divorce that truly fits all families. Even with some of the different configurations available in the statute (such as making a different parenting schedule for parents who live long distances from one another), it still cannot be made to fit every individual family that is attempting to structure their post-divorce life. However, in an adversarial divorce, the judge's hands are tied by these statutes, and there is very little room to rule according to the particular needs of YOUR family. In collaborative divorce, you stay in control of the process, and of the outcome. Not the attorneys. Not the judge. YOU.

One other benefit that seems worth mentioning: in an adversarial divorce, the accusations get crazy and the dirty laundry gets aired in public. Along with the inherent shame of a "failed marriage" (which is bogus, but that's another blog post for another day), there is additional public humiliation heaped upon both parties as they vie for a "winning position" in divorce court. Ouch. Collaborative divorce keeps your private life private.

Collaborative divorce is different in different states. It is more advanced in some states, such as Minnesota and California. It is just taking root in some states, such as Texas. It is a notion practiced but not formally sanctioned by statute in many other states. In some cases, it looks a lot like mediation, and in many ways it is a lot like mediation.

It's a radically new and fresh way to get a divorce. It's a godsend for people who want to peaceably re-structure their families, and move on with their post-divorce lives; with their dignity, their hearts, their finances, and most importantly, their spirits intact. It is my preferred way to divorce, and the first option that I offer every client who comes through my door. If you are considering divorce, even if you or your spouse has already filed for divorce, give collaborative divorce your careful consideration. You may be glad that you did.


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