FAMILY LAW: Collaborative Divorce: Why the Underwhelming Advance?

Vol. 32 No. 1

By

Luke Salava is a fourth-place 2012 Schwab Essay winner who plans to launch StayWed, a nonprofit bringing attorneys and family therapists together to help mend imperiled marriages.

The growth of collaborative lawyering has been described as one of the most significant developments in the provision of legal services in the last 25 years. Why, then, has the process been so slow to catch on in the field of divorce?

Traditional divorce. Traditional divorce involves one spouse bringing a lawsuit against the other, setting in motion a legal process. Parties file petitions, motions, responses, discovery requests, showings of cause, or other formalities required by the jurisdiction’s statutes.

The traditional model is often a lengthy, adversarial, and frequently painful procedure. If children are involved, high-conflict parents battle to become the “winner.” A contentious, high-conflict divorce may make it difficult, if not impossible, for parents to communicate in the future about children. It also may leave the parties emotionally and financially drained, with the only financial “winners” being the attorneys. The scars from this kind of divorce can last a lifetime.

Collaborative divorce. Collaborative divorce resembles traditional divorce in that each party has individual attorney representation. It is like mediation in that parties, through a nonadversarial process, seek an out-of-court agreement. Both collaborative law and mediation promote agreement through private, confidential negotiations, which cost less than traditional divorce and prepare the parties for future communications. Both mediation and collaborative law allow the clients to have a larger voice in the settlement process than in traditional divorce.

Collaborative law does not involve a neutral, unless agreed to by the parties. The divorcing spouses and their attorneys meet in four-way, face-to-face meetings where they discuss and attempt to agree on the timing and manner of their marriage dissolution. Parties commit to sharing information freely and openly instead of using the expensive, and sometimes lengthy, discovery process. Once spouses reach agreement on settlement terms, the spouses and their attorneys draw up a contract and bring it before a family court judge who finalizes the divorce in an uncontested procedure.

The most controversial feature of collaborative divorce is the participation agreement, which requires the attorneys to withdraw if the process breaks down. The parties must then find new representation and, probably, commence traditional divorce litigation. If either party invokes a court’s intervention in the midst of the collaborative process, the process terminates immediately.

Collaborative divorce is said to be more efficient, more affordable, more comfortable, and more equitable than is traditional divorce. It purports to offer increased productivity and flexibility and fosters a more amicable and healing environment than does traditional divorce. It also makes for a better quality of life and sense of career fulfillment for the attorneys who practice it.

Despite collaborative divorce’s popularity, it is not for everybody. People who are unable to work together are poor candidates. A second, perhaps greater worry, is that attorneys will not sufficiently screen out cases involving domestic violence, substance abuse, mental disorders, or other situations in which spouses exhibit disparate levels of sound decision-making ability and one party may be unwilling or unable to advocate for himself or herself. The Uniform Collaborative Law Act (UCLA) addresses this problem by creating statutory obligations with respect to intimate partner violence.

Perhaps the greatest concern involves the withdrawal requirement and accompanying ethical implications. Some fear that collaborative divorce attorneys, if focusing too much on settlement and too little on obtaining clients’ maximum individual benefit, might not adequately fulfill their professional requirement to be “zealous” advocates for their clients. If the parties have not signed a collaborative law participation agreement, then the attorney need not step aside.

Finally, the collaborative divorce process entails a potential weakening of attorney-client privilege. Because information is to be shared freely between the parties face-to-face at the table, certain matters between a client and attorney might come up for the first time while in the presence of the adverse party; this would potentially interfere with the privacy protections of attorney-client privilege in these matters. Should parties decide to pursue a litigated divorce, they may find that they have waived their privilege.

Given that collaborative divorce has many attractive qualities, one might question why its small surge in popularity has not been more of a tidal wave. Even though collaborative divorce has been in existence for decades, few states have collaborative divorce statutes in effect. Many people, even some attorneys, are unaware of collaborative divorce as an option.

Some agree that collaborative divorce is a huge departure from the adversarial culture of current law practice and is too uncomfortable of a thought to attorneys trained in the “rights-based,” warlike philosophy of litigation.

Another potential Achilles’ heel of collaborative divorce attorneys is that the process appears not to require the involvement of attorneys. Because a client’s collaborative divorce attorney may not represent that client in divorce litigation, and because the limited-scope representation agreement mutes several of the advantages and protections a client gains by hiring an attorney, professionals other than attorneys could conceivably facilitate collaborative divorces. The absence of attorneys works, however, only if the professionals have adequate training in dispute resolution and a thorough knowledge of divorce issues. Without attorney representation in the process, this type of collaborative divorce would have the same problems as mediation without legal advice.

Society benefits from collaborative divorce. The benefits of collaborative divorce lie largely in its nonadversarial approach. The parties and attorneys try to tailor solutions to meet the unique family finances, dynamics, and child-rearing practices. Collaborative divorce is ethical. Some contend collaborative divorce may have the potential for attorneys to more easily slip into ethically compromised situations than does traditional divorce. However, collaborative divorce is balanced by protections against the kinds of situations that can create incentives for attorneys to behave unethically, such as a “win-at-all-costs,” adversarial mentality that may encourage attorneys to exceed the bounds of professionalism. On balance, collaborative divorce appears to be at least as ethical as traditional divorce.

Probably the obvious benefit would be the reduced strain on the overburdened court system. In a model collaborative divorce, the parties have only one brief appearance to have their settlement agreement signed by a judge. Perhaps the greatest reasons for society to encourage collaborative divorce is that it has the potential to maximize the best interests of the parties to the divorce. Even discounting its financial and logistical considerations, collaborate divorce allows for healing and positive change at what otherwise can be a destructive time.

Legislators, the courts, and attorneys should take steps to increase collaborative divorce’s availability and accessibility. State legislatures or supreme courts could enact the UCLA or otherwise amend state family codes to include collaborative divorce. Courts could reduce or waive fees for collaborative divorce or offer expedited handling of these cases. Courts could also require couples to read information on collaborative divorce before filing a marriage dissolution petition. Attorneys could drop opposition to collaborative divorce and work to increase awareness of the process. These steps, like collaborative divorce itself, could lead to a win-win outcome for everyone involved.

ABA Section of Family Law

This article is an abridged and edited version of one that originally appeared on page 179 of Family Law Quarterly, Spring 2014 (48:1).

For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221.

WEBSITE: americanbar.org/family

PERIODICALS: Family Advocate, quarterly magazine (three issues with how-to articles and current trends and a fourth “Client Manual” issue for lawyers and clients); Family Law Quarterly, scholarly journal; Case Update, monthly electronic digest of family law cases nationwide; eNews, monthly electronic newsletter.

CLE AND OTHER PROGRAMS: Monthly webinars, spring/fall conferences, and the ABA Family Law Trial Advocacy Institute, the premier trial training program for family lawyers.

BOOKS AND OTHER RECENT PUBLICATIONS: Client Letters for the Family Lawyer; Becoming the Tech-Savvy Family Lawyer; Children Held Hostage, 2d ed.; The Family Law Trial Evidence Handbook; Forensic Psychology Consultation in Child Custody Litigation.

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