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When You Do Not Want A War
Too often in divorces, we attorneys see clients who would agree to whatever possession schedule was truly best for their children or would agree to whatever division of assets was fair, but they cannot agree on what that possession schedule or division of assets is. Because of this basic inability to discern the best or fairest plan, the parties end up in a prolonged litigation that results in a decimation of the family, both emotionally and financially. Perhaps the worst legacy of the "fight it out" divorce is the combat mentality that was acquired during the litigation and that persists for years to come between the parties to the divorce.
In "The Unexpected Legacy of Divorce," Dr. Judith S. Wallerstein points out that the continuation of fighting after the divorce is devastating to the children.
As a response to the cries of the ministers, CPAs and psychologists who witness the aftermath of the divorce trial, collaborative lawyering was born. It is used with some frequency in California and Minnesota, but is a new import to Texas, Ohio, Georgia, Florida, Pennsylvania, Connecticut, New Mexico, Oregon, and Massachusetts. New groups are cropping up in other locations too quickly to relate. And several already exist in Canada.
Attorneys agree the ideas are revolutionary. Lawyers who promise that they will not litigate; strategies for handling the dissolution of a marriage in a civilized and friendly manner; an absolute disavowal of "Rambo" posturing; discovery that is done on an agreed schedule and in a cost-effective manner; courtesy and trust offered and returned between attorneys and clients. Since one of the tenets of collaborative lawyering is that each attorney promises to withdraw from the case if it is unable to be settled, attorneys are freed from the stereotypical allegation, whether true or untrue, that the case is not settling because the attorneys are sabotaging the settlement efforts in their own self- interest of earning larger fees at trial. Another of the basic tenets is that divorce can be accomplished with the attorneys helping the parties to learn new and more effective ways of dealing with each other on topics of mutual interest.
This is, of course, completely contrary to the litigation prohibition of most attorneys to speak to one’s spouse only through attorneys. Usually, parties have learned an intimate, nonverbal communication that is unique to courtship and marriage and is not appropriate for divorcing parties. The repeated exposure of parties to each other in a civilized, controlled atmosphere of civility offers them the opportunity to learn new ways of communicating in nonthreatening ways. The attorney does not have to correct the client, but the attorney also does not validate the client’s bitterness. A wife whose spouse has committed adultery in the marriage almost always announces "You cannot believe anything that he says. He promised fidelity, too, in a church full of people." The attorney in a litigious environment might feel forced to reply (for liability purposes) "That’s the truth. We’ll make sure that we have all the supporting documentation to check his assertions." At that point, the race is on. Now, costs must necessarily escalate and the emotions of distrust verbalized by the client are intensified by that affirmation from the attorney. In a collaborative law environment, the attorney would more likely reply "I can understand why you would feel that way." This is heard by the client as much less affirmative of her feelings of mistrust than the former. Maybe her husband can be trusted in areas that do not involve sex.
There must be a great level of trust among the attorneys practicing collaborative law with one another. It is not unusual for a man to ask his attorney to try to avoid disclosing assets in a divorce action. Many men believe that the best way to settle financial issues in a divorce is to present an inaccurate picture to the wife that stresses the potential debts involved and minimizes assets. Typically, this results in escalating fees for discovery wars. In a collaborative law setting, the attorney will not allow distortion of facts. His/her reputation with the collaborative lawyer on the other side is too important to jeopardize. Besides, one of the main tenets of collaborative lawyering is that parties are adults and can handle the truth of their situations and resolve the conflict amicably with guidance and control.
How would the attorneys in collaborative law help the parties find that perfect possession schedule and property division in a less confrontational and less expensive means than traditional divorce litigation? They would ask questions designed to help the parties diagnose the needs of their children and understand the extent and form of their property. If necessary, they would agree on one expert to talk with the children and to make a recommendation on possession to the parties or they might hire one appraiser to do a fair market appraisal on the item of property whose value was disputed. Then, based with the opinion of the neutral third-party advisor, the parties would again attempt to put into place for themselves and their children the best possible resolution.
Of course, collaborative lawyering is not appropriate for every case. And not every case that begin collaboratively settles. However, statistics show that most divorce cases do settle. With collaborative law, they can settle with trust and kindness, rather than bitterness and resentment.
Texas requires that divorcing spouses try mediation before going to trial. Spouses can request a jury trial, but generally a judge decides the trial rather than a jury. Mediation is an ideal way to prevent the element of surprise that comes with taking a divorce case to trial. Many judges will tell you that a divorce trial has no winners, because the outcome is rarely in favor of just one party.
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