Family law practitioners first learned of collaborative divorce in the 1990s when Stu Webb, a divorce litigation attorney in Minneapolis, Minnesota, determined there had to be a better way for spouses to divorce other than the adversarial system he encountered in his everyday practice. He is often cited as the first collaborative lawyer. His brainstorming led to this concept: he simply decided he would not take on a divorce case unless everyone agreed that it would stay out of court and, if it was later determined by a spouse that the case would go to court, he quit. Throughout that decade, the word began to spread through the family law community. More attorneys became intrigued, sought out information, then training, and the practice has evolved to the practice we know today: a multi-disciplinary team approach that is designed to better serve families and children not only in the United States, but also in Canada, Europe, and Australia. Yet it’s only 33 years old, a nanosecond in time compared to some of the centuries’ old practices still with us today in the legal profession.
In the beginning, the concept was straightforward enough. Two attorneys would work collaboratively together instead of assuming adversarial postures. Each spouse would retain a collaboratively trained family lawyer and proceed in a private process where timing and control remains with the clients. The attorney-client privilege attached. But the hallmark of collaborative divorce is the “Participation Agreement.” It is a contract that both attorneys and both spouses sign that binds all four (or more) participants to the process. Key features are:
- No litigation. The spouses commit to a process that contemplates that no matter how difficult it may seem or become, they will endeavor to remain at the table. In the event either spouse wishes to terminate and head to court, both attorneys are disqualified, and the spouses must find new litigation counsel.
- Transparency. All reasonable and necessary discovery items are given freely and voluntarily. No “hiding the ball” allowed.
- Everything, including decisions about hiring other professionals (e.g., CPAs, appraisers), is done together and by agreement.
- The collaborative process is typically conducted by way of four-way meetings with one attorney hosting and the other traveling. The hosting attorney is often the drafting attorney to help balance the travel expenses of the other attorney (and then COVID-19 put us all in the virtual world. Yes, I conducted a collaborative to completion over Zoom, as many of us did). Each meeting has a formal agenda, and a hallmark of the process is the admonition of “No suprises! “ Unless there is an emergent issue, the written agenda is keenly observed.
- If the process breaks down, the spouses are prohibited from subpoenaing any member of the collaborative team or their files to appear in a litigated setting such as a deposition or a court proceeding.
Another unique feature of the collaborative process is the ability for an attorney to speak with the other attorney’s client as well as the other attorney. This feature is often surprising to newcomers and is sometimes a source of concern for newly minted practitioners. However, those who practice remain bound by the respective rules of professional conduct and, in this writer’s experience, I don’t find this to be an issue. More often, it’s a speedy way to get an answer on something factual or a way to better understand an issue such as how a compensation plan works for the other spouse. This type of conversation can happen inside or outside a 4-way session.
Practice Tip: If you wish to engage in communication with the other spouse outside of a four-way meeting, I suggest it be via electronic mail with the spouse’s attorney and your client copied. Such a practice keeps to the tenant of transparency and cooperation and will proactively preempt any thought by your own client that you are somehow working against his or her interests. In general, I am not a fan of caucusing for this reason—it plants a seed of doubt that need not be introduced at all and being transparent lends trustworthiness to the process.
And so, this new way of getting spouses divorced began to spread throughout the country. Not without challenges, however. As in the precursor process of mediation, many state and local bar associations raised questions about this new process. It would not be until 2007 that the Uniform Law Commission, founded in 1892, undertook to formulate a Uniform Collaborative Law Act (UCLA). In 2009, it presented its draft to the American Bar Association (ABA). After critique, the Commission amended the UCLA and submitted it again the following year to the ABA but it was again met with objections. The Commission has strongly supported the UCLA’s enactment in all 50 states and in the District of Columbia. Utah was the first state to enact UCLA in 2010 and since then, 21 additional states and D.C. have enacted it. It has been introduced and is currently awaiting legislative action in Missouri, West Virginia, and Kentucky. In my state, the Connecticut Bar Association Family Law Section has unanimously endorsed the UCLA this year and is in the process of obtaining support for its position on the UCLA in that state. The ABA, the International Academy of Matrimonial Lawyers (IAML) and the American Academy of Matrimonial Lawyers (AAML) all have Collaborative committees. The value of enactment is high—it assists in the uniform application of law regarding contracts across state lines. It clarifies and codifies the rules of engagement for both clients and attorneys. And perhaps more importantly, it lends itself to the wisdom of Abraham Lincoln who encouraged lawyers to be the peacemakers among us. Read the UCLA, and see more on its history and enactment status.
So, what has changed since the initial 1990s sweep of collaborative divorce practice across the United States? A great deal.
With the appearance and wide acceptance of unbundled legal services, practitioners quickly realized and appreciated the value of a multidisciplinary team approach to collaborative divorce. It began to make more sense to involve other professionals to assist the family as part of a collaborative team in terms of finances as well as economy of time. Instead of two lawyers alone navigating the attendant emotions, child custody issues and financial issues (often complex with closely held businesses, tax issues, and trusts), the team approach has quickly developed and has been embraced both in the United States and abroad. Each additional professional added to the team also signs the participation agreement. Depending on the needs and interests of the family, it may make sense to start with issues involving children which are usually best addressed by a mental health professional who is trained in child development, perhaps parenting coordination or counseling, mediation, the collaborative divorce process, and who is recommended or selected by the two attorneys. The parents meet with the mental health professional apart from the attorneys and have their own retainer or engagement contract with the professional. In addition, a financial expert, who has also been collaboratively trained, may be recommended or selected by the two attorneys. Like the mental health professional, this professional also signs the participation agreement and will meet with the spouses apart from the attorneys to develop the overall picture of the marital estate. The professionals all have access to each other and may meet independently of, or with, the spouses. Additionally, there may be a spouse who needs support to maneuver the financial world post-divorce if he or she has been ignorant of family finances and has never paid bills, applied for credit, made a major purchase, used a bank account or credit, or made a loan application apart from their spouse. In this situation, a “divorce coach” may be someone the spouses agree to hire to assist the information-disadvantaged spouse in establishing such items as budgets and bank accounts. Again, the key feature of this process is that nothing is undertaken absent agreement and transparency, including how fees are to be paid. Sometimes for the professionals, we must remind ourselves that we are not the ones in charge of the process or the outcome, but rather we are there to assist our clients in finding solutions that work well for their specific family. This concept is often a tough one for us litigators as we are prone to do the problem-solving ourselves. But in the context of collaborative divorce, the clients own the process, not the lawyers. It’s a paradigm shift. The team assembled for any given case must match the needs of the clients as every single family is unique and will require different supportive professional roles.
Many have asserted that the team approach is costly. It certainly can be, but cost is factually driven, whether it’s mediation, litigation/trial, arbitration or collaborative. The team approach is more of a division of labor than simply having two attorneys wearing all hats. Remember the old saying,” jack of all trades, master of none?” Sometimes a specialist is better for the client than even our own vast legal experience. And we are excellent at the legal part! But not necessarily everything else that goes into a successful outcome. No doubt litigation is expensive and carries with it—for clients—the loss of control over the outcome, the loss (or further loss) of relationships, the emotional chaos, the loss of privacy, and the fear and uncertainty of the future. Collaborative divorce allows the clients to retain control over their privacy, their lives, and the outcome with the help of creative professionals. It is problem-solving at its finest and is exceptionally fulfilling for professionals to see sound results achieved for a family. Instead of being bankrupted (in every important way) by litigation, we see families reconfiguring their lives but, for the most part, remaining families, moving forward in all the most significant ways—particularly as it applies to children and parenting. The mere fact alone that children are spared from the toxicity of litigation makes collaborative divorce a preferred option and one that every divorce professional should educate their clients about at an initial consultation. As a court-appointed guardian ad litem in some of the most awful cases seen in my state over the past almost three decades, I can tell you firsthand there is a definite litigation impact on children as well as adults and adult children. I have had kids tell me about a parent’s “war room” where the parent spends day and night plotting litigation to “get” the other parent. These parents are on their worst behavior, and it’s often because they are at “war.” To be sure, neither have been offered an alternative to the medieval and archaic archetypal of vanquishing the “enemy”—the person with whom they have for years raised a family and has cherished as a soulmate. It is the litigation process itself that creates the environment in which otherwise good people behave in the worst possible manner. As good and ethical lawyers, we must adhere to our professional responsibilities to clients and afford them options when available. Collaborative divorce is such an option, and educating the client on the process is important, whether you choose to practice collaboratively or not.
Practice Tip: If you do not practice collaborative divorce, reach out to a colleague in your area who offers this service. Meet for coffee or lunch, and ask questions. Build a referral network for those clients who are interested in learning more about the process. Reach out to your state or local collaborative group to register for training. Whether you decide to practice collaborative or not, the education alone is worthwhile, and it is informative to learn a different perspective (we call it a “paradigm shift”); we all need to better understand clients and their needs. And in my state, the CLE units are required, so what better way to slay that dragon?
Organizationally, collaborative law has grown over the years. The International Academy of Collaborative Practitioners (IACP) has become a key resource and membership alliance for the international community of collaborative professionals. IACP is a home to civil collaborative practitioners, such as those involved in corporate dispute resolution whether it be employment disputes, or those engaged to resolve contract disputes within state or federal agencies. It is not exclusive to divorce and the free exchange of ideas of those in other practices and countries is not just a resource but provides a rich vein in which to tap into ideas and alternatives and learn new methods. Implementing ideas that can help our clients is the best part of collaborative creativity. State organizations and local geographic practice groups (aka “pods”) have sprung up in every U.S. state and abroad, many requiring membership in IACP as a requirement for membership along with both mediation and collaborative training and ongoing educational requirements for all professional practitioners. IACP has ongoing educational offerings and resources to offer its members. Learn more at collaborativepractice.com.
What does the future hold for collaborative divorce law? There’s no end in sight to its expansion. The UCLA will continue to be adopted in a majority of states. We will likely see more symposiums, educational offerings, practice groups and multidisciplinary groups forming. But what about the substance of collaborative divorce law? I believe it will expand. I also believe the term “collaborative divorce” will give way to “collaborative family law” and “collaborative family lawyer” will be a moniker for those in the practice. I believe we will become more familiar with cases involving the populations of “never marrieds,” the elderly, and others meaning there is a definite space to explore my top 10 predictions:
- Pre-nuptial agreements
- Child custody and post majority educational support issues for unmarried parents
- Divisions of assets for those in long-standing partnerships
- Surrogacy matters
- Private adoptions
- Termination of parental rights
- Post-nuptial agreements
- Estate planning for Medicaid/Title XIX
- Closely held family business disputes
- Actions in partition of real estate/neighbor boundary disputes.
Catch Up on the Current Status of Collaborative Family Law
I highly recommend Collaborative Divorce. The Revolutionary New Way to Restructure Your Family, Resolve Legal Issues, and Move On With Your Life by Pauline H. Tessler, M.A., J.D., & Peggy Thompson, Ph.D. (William Marrow Paperbacks, 2006). You can also find additional suggestions on the ABA website, by searching the term “collaborative.”