DIVORCE INNOVATIONS - Alternatives to the Traditional Divorce
By Barney Connaughton, Esq

    Divorce involves resolving a number of complex and diverse issues during a very chaotic and emotionally charged time for the couple. There are financial issues related to valuing and dividing assets and debts from the marriage; strained cash flow issues related to the need for the family income to now support two homes rather than one; child welfare issues related to how each parent's relationship with the children will continue after separation and all mixed in with mental health issues with each parent experiencing some sense of loss from the breakdown of the marriage. The trust between Husband and Wife that was the cornerstone of the marriage is gone and with the lost trust is the fear that the other spouse will stop at nothing to take more than their fair share.

    The traditional divorce has Husband and Wife hire separate attorneys to "fight for their rights." Husband and Wife are adversaries and their attorney's set out to paint their client in the most favorable light, while focusing on drawing out the shortcomings of the other spouse. The Court must sift through these biased interpretations of the facts filed declarations and make a decision regarding these complicated issues, oftentimes considering diametrically opposed accounts of the same incident. Judges are placed in a situation where they must make final decisions about how property will be divided, how much support will be paid, and when each parent will spend time with their children, but these same Judges will admit that they are not the ideal people to be making these decisions.

    This adversarial process exacts a substantial toll. Whether or not parents intend it, the children sense the conflict between the parents and can easily feel as if they have been placed in the middle of the dispute. During the divorce whatever trust that had remained after the breakup of the marriage is further destroyed by the battle waged in the process. There are substantial legal fees involved in getting the case before the Judge before the determination, and it is seldom that the litigated outcome is just what the client wanted; more often each spouse leaves trial feeling
they have lost.

    Many professionals involved in traditional divorce have recognized the shortcomings of this adversarial approach. A focus has been placed on finding a way to resolve the issues of the divorce in a way that protects the children from the process, involves the couple in making their own decisions, and strengthens rather than further deteriorates the relationship between the couple.

    An option that many people are aware of is mediation. The couple hires a mediator to help identify the issues of their divorce, and to help the couple communicate with each other to come up with their own solutions. The mediator is not providing legal advice to either spouse, and is not a decision maker. The mediator attempts to navigate the couple through any emotional issues which may hinder communication so the couple can focus on resolving the issues of the divorce. Some drawbacks to mediation include problems with assuring that both spouses are able to make educated decisions, assuring that both spouses are informed of their individual rights, assuring full disclosure by both spouses, and resolving situations where there is an imbalance in power between spouses.

    To remedy many of these shortcomings with mediation, a second alternative to traditional divorce is Collaborative Divorce. In Collaborative Divorce each spouse hires an attorney trained in Collaborative Divorce. In addition, each spouse hires a coach who is a mental health professional to help with the emotional issues of the divorce, and to help each party effectively communicate with one another. The couple also jointly hires a financial planner and if there are complicated child issues, a child specialist. The couple and the "team" of professionals sign a Collaborative agreement stating that the couple will resolve the issues of the divorce outside of Court. The parties further agree that they will provide full disclosure including agreeing to obtain any necessary documents to accurately value assets.

    Collaborative Divorce allows for the most qualified professionals to be available to help the couple when needed. When considering the future financial needs of the couple, a trained financial planner is in a better position to provide projections and sound financial advice than an attorney. When trying to resolve emotional fallout from the breakdown in the marriage which is hindering communication, a trained mental health professional is in a better position to help the couple through the issue.

    Collaborative Divorce is also not for everyone. Having five or six professionals working on a case can be financially intimidating to the couple trying to come up with an alternative to the traditional divorce. There is no question that Collaborative Divorce is a healthier alternative
to traditional divorce. The agreement to cooperate with full disclosure and to not litigate saves substantial costs associated with formal discovery and associated with the preparation of declarations otherwise used in litigated cases. Even so, many couples who are open to using alternate methods to resolve their divorce feel Collaborative Divorce is too cost prohibitive.

    There are many variations to these forms of divorce. One variation of mediation uses two mediators with one of the mediators being an attorney and one of the mediators being a mental health professional. Many of the pitfalls with communication problems and power disparity can be addressed better with this combination then with a single mediator. Participating in mediation does not mean that either or both spouses cannot have an attorney, and any mediated divorce can and should be reviewed by an attorney for each spouse.

    While the preferred Collaborative Divorce model calls for the full team of professionals discussed above, another option is a variation of the Collaborative Divorce. Some options include the couple using one joint coach through the process, or using the financial planner in a more limited capacity. Family law attorneys are accustomed to dealing with the financial issues surrounding divorce and may be able to resolve the case in a Collaborative fashion without the full team of professionals. The couple may be able to effectively communicate without the assistance of a coach. The full team approach recognizes when difficult couples dynamics prevent the successful resolution of the dispute it is more helpful to have a mental health professional available for the couple then an attorney. The financial specialist's training places them in a much better position then the experienced family law attorney to consider the future impact of the property and support decisions being made at the time of divorce. Agreeing to the use of a partial team is a commitment by the couple to resolve their own issues with the help of select professionals, and this approach, while maybe not the ideal one, is certainly better then the traditional litigated divorce.

    Another variation is Cooperative Divorce. This is where the couple selects Collaboratively trained attorneys to represent them in the divorce. An agreement is signed again with the couple agreeing to full disclosure and agreeing not to litigate. If either spouse chooses to litigate, both
spouses must find a new attorney. The attorneys and the couple work on coming up with creative solutions to the problems. If communication issues arise then the couple with the advice of their counsel may involve a coach or another appropriate professional to help them through difficult issues. This approach assures that the couple and their respective attorneys are committed to working as a team to come up with a healthy and reasonable solution to the issues

    A common thread involved in all of these alternative approaches to divorce is that by involving the couple in the process and setting up open lines of communication between the couple and the professionals, that a much more favorable result can be reached. By finding a way to work together to come up with their own solutions, the couple can begin to respectfully communicate and begin to re-establish the trust that may have been lost. This ability to communicate civilly and solve problems effectively sends a message to the minor children that their parents are going to be alright. The end result is that the people most familiar with the case are making the decisions with the assistance of professionals focused on fashioning successful solutions.