The Roads to Divorce

"One of the first tasks of the attorney-client relationship is to determine which road to divorce is best suited to the client's particular situation."

Divorce can be a daunting prospect as one faces the loss of a special relationship and may fear for children's well-being. But divorce can be dignified and civil. It can lead to personal growth and consideration of children's best interests. A divorcing couple's decision on how they divorce is therefore very important. Lawyers can present to their clients pathways to settling their divorce and avoid litigation, including "collaborative" and "mediated" divorces.

Collaborative divorce and mediated divorce are designed to promote civility and preserve goodwill. They can lead to years of successful co-parenting, rather than prolonged struggle. While a non-adversarial, attorney-led negotiation in the midst of litigation can produce positive outcomes, the new models offer structures that strongly encourage and facilitate such outcomes.

In the collaborative approach, before the case is even filed the divorcing parties, their attorneys and independent experts (if desirable) enter a binding contract to not litigate the divorce. The spouses agree to negotiate constructively and reach a divorce settlement before filing for divorce. If the collaborative settlement efforts fail and the case proceeds to litigation, the contract requires all professionals to end their representation. That requirement creates a powerful incentive for the spouses to reach a settlement, as it can be very expensive, both financially and emotionally, to hire new professionals.

The collaborative spouses and their attorneys hold "four-way" meetings where the spouses disclose their finances, share concerns about the well-being and co-parenting of their children, and explore settlement. They might agree to bring in financial or mental health professionals trained in the collaborative process to provide specialized information and resources. The professionals can be "neutrals" who owe duties to both spouses and the process, or they can provide their services exclusively to one spouse. A neutral child specialist (often a psychologist or social worker) can guide custody and parenting time decisions, and inform parents about their children's needs. A divorce coach would work exclusively with one spouse to envision post-divorce life, cope with the divorce and negotiate constructively. A neutral financial expert (such as a CPA) might provide opinions as to the value of assets, or give tax advice. Use of these professionals can promote civility, co-parenting skills and positive post-divorce communication.

Because the collaborative approach involves the direct participation of attorneys in settlement negotiations and a multi-disciplinary team approach, it is well suited to cases involving complex financial or custody issues, or where spouses have unequal financial expertise or negotiating skills. Collaborative (and out-of-court) divorce is rarely appropriate if either or both parties will not fully disclose assets, negotiate in good faith, respect agreements and consider the legitimate needs of children and the other. In those instances, the litigation approach may be preferable, as its menu includes court scheduling orders, motion hearings, court-appointed experts, depositions, subpoenas and other discovery tools.

Mediated divorce is similar to collaborative divorce in several important ways. They share the goal of reaching settlement without litigation. They promote civility and empowerment. They favor informed and creative approaches to resolution over judicially imposed resolutions. In both mediated and collaborative divorce, the spouses often postpone filing a complaint for divorce until they have a signed settlement, allowing them to focus their negotiations more on their individual needs, and less on what a judge might decide.

While there are similarities, there are also important differences between mediated and collaborative divorce. In a mediated divorce, the spouses work with a neutral mediator to reach a settlement, often without their attorneys being present. (Attorneys are always actively involved in a collaborative divorce.) If the spouses are in divorce mediation, their attorneys typically provide advice and counsel, rather than direct advocacy, often with the mediator's encouragement. (Attorneys directly negotiate and advocate in a collaborative case, albeit with the goal of reaching "win-win", collaborative resolutions.)

Not so many years ago, an attorney could offer little other than the litigation model for divorce. But the legal profession has joined with other professionals (including psychologists, accountants, social workers and others), to create new alternatives. Nowadays, one of the first tasks of the attorney-client relationship is to determine which road to divorce is best suited to the client's particular situation. The attorney explains the various factors that the client should consider, and makes an assessment and recommendation. But the client ultimately makes the choice. While any divorce can "succeed" no matter which road is chosen, choosing the best road will maximize the chance for a dignified and civil divorce.