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Alternative Approach to the Family Feud
"Don’t find fault, find a remedy." Henry Ford
For many people, divorce is just a legal procedure that dissolves a marital relationship. That superficial attitude fails to understand that a divorce has a lasting impact on both parties. If the divorcing couple have children, the impact is frequently transferred to subsequent generations. Numerous studies have shown that a high conflict divorce involving children not only leaves its mark on the children, but also the grandchildren, great-grandchildren, etc. This long term damage to families inevitably has a negative effect on society. To compound the problem, a high conflict divorce is usually very expensive, and the amount of stress it creates is impossible to measure.
Since attorneys are an integral part of the dissolution process, we play an extremely important role in how the parties and their families come through this difficult process. We have the ability to affect a number of lives based on the type of assistance we provide our clients. Representing someone in a family law matter is a serious responsibility.
Most family law practitioners understand this enormous responsibility, and they try to neutralize conflict by focusing on solving their client’s problems instead of creating them. A growing number of lawyers are adopting innovative methods of helping clients through this difficult process. For example, the success and popularity of mediation in the family law arena is well recognized, as an established alternative to the family feud. Other methods are evolving in our profession that directly focus on helping parties survive their divorce without destroying each other along the way. Two of the more prominent alternatives are Cooperative Divorce and Collaborative Divorce. To most people, these concepts sound contradictory, and they represent the classic oxymoron. But they are not. If you are not yet familiar with these terms, you need to become aware of these options. They are carving a noticeable niche in family law communities in many parts of the country. Currently, at least 35 states and all of Canada have Collaborative Law Associations, and Cooperative Law is gaining more and more followers everyday.
The Cooperative Divorce and Collaborative Divorce methods have many similarities. Both approaches require a detailed contract signed by the parties and their attorneys that unequivocally states everyone’s commitment to proceeding in the respective method. When appropriate, both methods encourage the use of specially trained mental health and/or financial professionals. Both procedures have the stated goal of completing the divorce by agreement without litigation. They also allow the parties to terminate the signed contract and proceed with litigation if they reach an impasse. The fundamental difference between the two approaches is that in a Collaborative Divorce, if the parties cannot resolve all of the issues, both attorneys must withdraw. For example, if a divorcing couple agree on all issues except parenting time, and they must litigate that issue, both attorneys must withdraw. The parties then hire new attorneys and proceed to trial. In a Cooperative Divorce, the attorneys may remain in the case and litigate the issues that cannot be resolved.
A group of attorneys, judicial officers, and mental health professionals in Hamilton County, IN have developed a Cooperative Divorce model that is being implemented in their county. They should be applauded for their ground breaking efforts to provide such an alternative. It also proves that Indiana attorneys recognize the devastation left in the aftermath of a high conflict divorce and the importance of finding alternatives. Hopefully, family law practitioners in other Indiana counties are willing to employ such innovative methods in family law matters.
Last March, the Family Law Section of the Allen County Bar Association conducted a full day seminar on Cooperative Divorce. The high profile faculty for this presentation included Judge Hugh Starnes; Sheldon Finman, a family law attorney; and Dr. Deborah Coe Silver, a practicing psychologist. These individuals are from Fort Myers, Florida, and they have made presentations throughout the country training family law attorneys and family therapists on the Cooperative Divorce method. They provided first hand experience on the numerous benefits of the Cooperative Divorce model.
Fort Wayne attorneys Jim More, Brian Stier, and I completed a two-day training seminar in Chicago on Collaborative Family Law last January. The program was organized by the Collaborative Law Institute of Illinois, and the faculty from Atlanta, Georgia included a family law attorney, a certified financial planner, and a psychologist. The Collaborative Divorce model was introduced to Atlanta six years ago, and it has become a widely recognized and accepted form of practice. There are Atlanta family law attorneys who only do Collaborative Divorces confirming that the public is now aware there are alternatives to a conventional divorce. That same training program is being offered this January.
The 35 plus attendees at the Collaborative seminar were an eclectic collection of Chicago area family law attorneys, counselors, and certified financial planners. After a number of demonstrations and role playing vignettes, it was apparent the participants shared the goal of making the divorce process less combative and damaging to the participants and the generations that follow.
The Collaborative and Cooperative Divorce process can only start with a paradigm shift in how attorneys analyze, negotiate, and resolve the numerous issues that arise in a typical family law dispute. It compels everyone in the process to focus on problem solving. It does not require the attorney to disregard his ethical duty to advocate for their client. However, there must be a shared commitment by the parties and their attorneys at the very outset that they will work together as a team to resolve all issues concerning the children and divide the property in a way that is fair and practical. That commitment is expressly stated in the signed Agreement.
These alternative models adopt a team approach to problem solving. For example, if one or both of the spouses are struggling with emotional issues, a divorce coach can become part of the team to work with a troubled spouse to make them become a productive participant in the process. Or, if the parties disagree over parenting time, a trained child specialist can be recruited to develop a child focused parenting plan and explain why that plan is best for that child. A child specialist will be able to recognize and address the emotional needs of each child.
Similarly, if a divorce involves economic issues such as a business valuation, alimony, or complex tax issues, the team can engage a mutually selected and specially trained certified public accountant or business appraiser to advise them on those issues. This financial expert is not a hired gun. Instead, he or she assumes the role of a neutral expert.
There is also a strong need for transparency during these alternative processes. Instead of agonizing over one hundred Interrogatory questions and requests for documents with multiple subparts, the parties dutifully complete a detailed financial statement which is signed under oath. Instead of formally asking for financial documents and then arguing over whether or not you will receive them, a party or the lawyer simply asks for those documents and, under the signed Agreement, the other party complies. At the end of the day, you have a documented and verified financial report from both parties that provides a reliable basis for negotiating child support, property distribution, and other issues.
One of the criticisms of Collaborative Divorce and, to a lesser extent, Cooperative Divorce, is the mistaken belief that attorneys must surrender their role as an advocate for their client contrary to their ethical responsibilities. From my discussions with Collaborative and Cooperative Law practitioners, the attorney’s obligation to advocate for their client is alive and well in both of these alternatives. There is ample of opportunity for advocacy during the lawyer conferences and four-party conferences that occur in a typical Collaborative or Cooperative Divorce. However, because the goal is mutual resolution, the style of advocating is different then a conventional divorce. Overt posturing and table pounding have no place in these models.
The Collaborative Divorce approach cannot be used in every case. Some couples are too dysfunctional or angry and only the adversarial approach will work. However, since the Collaborative and Cooperative models encourage a multi-disciplinary approach, many high conflict divorces can utilize one of these methods and avoid the inherent family fall-out, as well as the cost and stress of litigation.
Another positive phenomenon of the Collaborative and Cooperative models is that collection rates for attorneys fees is greater than cases resolved in more conventional methods. When the parties conclude the process with a greater sense of satisfaction, they are more inclined to pay their attorney.
All family law practitioners should learn more about alternative approaches to resolving family law disputes. If you accept the serious responsibility inherent in family law, you must think outside the box. Not only will you and your clients benefit from utilizing other models of resolutions, but the children of divorce and subsequently society will be the ultimate winners.
The Indiana court may be inclined to award the family home to the spouse with primary physical custody of children.
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