Will My Lawyer Be a Strong Advocate for Me in a Collaborative Divorce?

In a Collaborative Divorce your attorney is obligated, in the same way that a litigation attorney is obligated, to advocate on your behalf.  In both approaches, the first commitment of the attorney is to help his/her client establish and obtain their goals for their post-divorce life, within the limits of the law, by explaining the law and by explaining how judges are likely to rule in cases similar to their case.

(One of the most important differences between mediation and Collaborate Divorce is in the advocacy provided by your Collaborative attorney.  The neutral mediator cannot provide the parties with legal advice. That is why many clients choose Collaborative Divorce over Divorce Mediation.)

It is important to emphasize that advocacy in Collaborative Divorce also includes, to the same degree as in litigation, obtaining documents and gaining access to the essential factual information controlled by the other party (e.g., about income, assets, debts, business valuations, etc.)

In Collaborative Divorce cases, parties can engage the services of experts to provide “forensic analyses” of financial records, tax returns, etc., and to provide independent third- party financial appraisals. Therefore, neither side is disadvantaged in this regard, even if there was an imbalance of power or limited access to information during the marriage. The parties sign an agreement at the start of any Collaborative Divorce to be transparent in the exchange of financial information.

Despite the similarities, there are some importance differences in how advocacy is handled in a Collaborative Divorce case, in contrast to litigated cases. These differences typically allow Collaborative Divorce cases to be settled more quickly, more cost-effectively, and with less drama, stress and pain than litigated cases. 

These important differences are:

– Collaborative attorneys are 100% committed from the beginning of the case to finding a settlement that their two clients find mutually acceptable.  They focus on what their clients and their clients’ children need going forward for a successful post-divorce life, rather than focusing on past blame and punishment.

– Collaborative attorneys also avoid posturing, delaying tactics, and antagonizing the opposing side, since those actions — while perhaps appealing to some clients in litigation cases simply because it “feels good” — cost clients a lot of money and are counter-productive for reaching a settlement.

– A common role for the attorney in a Collaborative Divorce case is to empower the client to speak and negotiate for his or her self, by providing knowledge, legal advice, strategies, and help in formulating their goals.  Clients benefit, and the negotiation progresses more quickly, when clients find “their own voice” and shape their own negotiations.

– Yet, in those occasions when a client is not comfortable or not well-enough informed to speak about a certain aspect of the case, his or her attorney is prepared to speak on their behalf to keep the negations on track toward obtaining the client’s goals. 

– Likewise, if a client knows that by speaking or negotiating directly that they are likely to antagonize their spouse (or ex-spouse), then their Collaborative Attorney will speak on their behalf as a means of keeping the negotiation on track.

– Collaborative attorneys, therefore, always try to help their clients to make their case in the ways that appeal to the other side. This helps find the common ground needed for settlement, rather than escalating conflicts and angering the other spouse to no benefit (which is what can easily happen during litigation).

– Through a series of joint meetings during the Collaborative Process, in which the goals and priorities of each party are presented, explained and negotiated, both sides come to understand how to reach a good settlement.  

Therefore, rather than seeking a trial and a judge to decide the details of their settlement, clients quickly realize that the settlement will be better by using a process that lets them decide the terms of how they want to dissolve their marriage.

It should be noted that the entire Collaborative Team (i.e. two attorneys, the financial neutral and a neutral divorce coach) is focused on helping the clients find areas of common ground and “opportunities” for reaching a settlement.  Opportunities arise, for example, when both parents want the same things for their children, even if one has to give up something they would not have done otherwise; or when a client is willing to give up something in exchange for something they want even more from the other side. So, part of the process is helping clients to determine and rank their priorities.

Lessons from a Judge: Why Going to Trial Does Not Solve Conflicts in Divorce

The comments below are from Judge Paul Garfinkel of the 9th Judicial Circuit Family Court, of Charleston County, SC. He made these comments to divorcing parents before the start of their child custody trial, to encourage them — and their attorneys —  to go to a conference room that day and settle it themselves. 

His comments illustrate why judges in divorce and family law cases most often feel that the divorcing parties are in a better position to judge for themselves how best to resolve their conflicts, if they can only put their anger, hurt and egos aside.

The Collaborative Divorce process helps divorcing couples to do just that, but more effectively and at much lower cost, without ever preparing for a court room trial.  It does this by allowing each of them to prioritize those things they truly value for their post-divorce life. Most often that is their children’s well being, their own relationships with their children, and their financial resources for the future.

This contrasts with the traditional litigated divorce, where each side (i.e., the attorney and client) prepares for trial by trying to find the faults and negatives in the behavior of the opposing spouse. As a result the couple often loses focus on what they value. Worse yet, they are handing over their decision-making ability to a judge, a judge who can never understand their needs as well as they do.

While they are fighting, preparing for trial and hoping to win, they are actually worsening their relationships with their children and they are draining their financial resources.

Please see this link to what children say about high-conflict divorce and this article by Lisa B. Forberg from the NN Bar News on the benefits of a commitment to a settlement process in divorce cases.

(The comments below were originally blogged by Jeanne M. Hannah in 2013 on her “Updates in Family Law” blog.)

THE COMMENTS FROM THE HONORABLE PAUL GARFINKEL
TO PARENTS PRIOR TO THEIR  CHILD CUSTODY TRIAL

I want to make a few comments to you about how  important it is to your family to resolve this case.  I know that both  of you sit here today; each of you are convinced of the merit of your  own case and the righteousness of your own position. However, asking  your attorney to convert your convictions and beliefs into evidence  that will result in a verdict in your favor is asking for what I believe the most difficult task that a trial attorney can be required  to do.

A custody case is much different than any accident case or a criminal trial. In those cases, an attorney is only asked to  prove what happened at a specific date and place. All of the events have been fixed and are unchanging. A custody case is much different. You are asking your attorneys not to paint a picture in time but to present a movie. The movie must show over a broad range of time how each of you parent. Then, I must decide which of you is the better parent.

Can you imagine if you had to prove that DaVinci’s “Last Supper” was a better painting than Michelangelo’s “Creation” and  say that you had to prove this to someone who had never seen either painting, and you weren’t allowed to show the paintings to them?

I suppose you could hire the curator of the Metropolitan Museum of Art who would come to court and testify about  composition, color, depth, character, and proportion. Or I suppose you  could bring in some ordinary people to say which one they think is better. Maybe you could take a poll.

This is what you are asking your attorneys to do in this case. They have to prove to me which is the better parent, but  they have no way of showing me exactly how you parent. They can’t take  me to the study sessions so I can see you how a good tutor Dad is.  They can’t bring me into your child’s bedroom at 5 a.m. to see how Mom  confronts the child who is awakened with a fever. I want you and I want your attorneys to bring up those incidents which show you to be  caring and loving parents, and I am sure they will try.

However, it is more likely that they will be forced to show the other parent at his or her worse. Neither of these efforts  will work very well. In trying to prove the positives you will  discover that with the passage of time the inability of witnesses to  describe the situation with the same force with which it occurred,  just the difficulty of putting into words other peoples thoughts, feelings and actions, all of these combine to make grey what you felt  was vivid or blunt what you thought was poignant.

On the other hand, the negatives will seem to make you look like the worse parent that ever lived. Did you ever send one of  your children to school without [their] lunch? Did you ever forget to give one of your children [their] medicine? Did you ever say about your child “I could have strangled her?”

We probably have all done those things, and it will be presented as if you are the most neglectful or abusive parent. At the  end of the trial any goodwill each of you had for the other, if there  is any, will have been totally destroyed.

It is both of you who must be parents of these children until either you or they die. Neither I nor any of these lawyers . . .  will be there for you for the remainder of this long journey. We could  try to do our best to get you pointed in the right direction and maybe  even help you along, but it is only in the first few steps. In the  end, it is both of you who must raise these children.

If your children could reach into their hearts and tell you exactly what they think and feel about what is going on here, if  they could get beyond the hurt we know they must feel, we all know  what they would say. First they would say, “I wish Mom and Dad were  back together.” Knowing this will not happen, they would say, “I wish  they would just stop fighting.”

No doubt they love you so much they are probably blaming themselves for your original breakup. It is time you get past  the anger and put aside the hurt. You may even have to forgive.

The pain that has been caused here arises from the conflict between each of you and has nothing to do with the children.  Your children want this conflict to end. You have the chance to leave  here today with an agreement that is in the best interest of your  children. But it is an agreement that you must reach together. You  must be willing to put aside your differences and be willing to  accommodate each other’s needs. But most importantly, you must be  ready now to put the needs of your children first.

I know that your children want you to settle this case. You can do the right thing and you can start now. Put aside what has  happened in the past.

This is the judgment day for your children. It’s not about you. And think about the additional damage you are going to  cause to these children.

I can tell you right now it has happened, and it happens every time. Put aside your own egos and swallow them. Leave it  in this courtroom. We’ve had a lot of egos left in this courtroom. You  don’t see them, but I do because I see parents who are willing to put  their children’s welfare above their own ego. And they leave it right  here and they know and understand what is really best for the children.