Tim was sad but resigned as he described his marriage in our initial conference.
Tim reported how he and his wife had grown apart over the years. There were disagreements about how to spend their money, how to raise the kids, how to advance their careers, and how to spend their time together. Marriage counseling could not make him love his wife anymore. Tim was not angry, but he was convinced the time had come to end the marriage.
As a divorce lawyer, it fell to me to describe the many aspects of the litigation process leading to divorce: serve a complaint; go to court on motions for alimony, child support, custody, parenting time and legal fees; compile ears of financial records; exchange extensive written questions and answers about all the details of the marriage; employ experts in compensation and finances, mental health and parenting; submit to the court appointment of an attorney and/or guardian ad litem for the minor children to decide what’s best for the children; take depositions of parties and experts; attend court conferences; and perhaps ultimately make an agreement about how best to share parenting time with the children, divide the marital property and provide financial support. Or – in the worst case scenario – have a trial so that a judge would decide the issues for you.
Every case is different, and the route to the final divorce is unpredictable. Not every case involves extensive use of litigation procedures, but even in simple cases, the threat of going to court hangs over the process, adding stress and uncertainty to the mix of emotions experienced by the parties.
Even when the parties feel, as Tim did in our first meeting, sad but resigned – with no intention of being aggressive or unreasonable – the process of litigation invariably pushes the parties farther apart than they were at the start of the case. The children become keenly aware of the turmoil, and their opinions of their parents are changed for years to come.
However, in the initial conference, I follow the description of litigation with the description of an alternative: collaboration. “Collaborative divorce” is an emerging method that is gaining favor nationwide. It is not as well known in Connecticut as it should be, but it is growing. In a collaborative divorce, the parties and their attorneys agree to handle the matter outside of court except for starting with a formal complaint and ending with a brief court session concerning the agreement of the parties.
In a collaborative divorce, the parties and their lawyers enter into a contract providing that they will not use the court as leverage to settle their issues. While the parties can always change their minds about the need for court intervention, each lawyer is obliged to resign from the case if the client insists on litigation. The lawyers will collaborate with each other to ensure issues are addressed properly while they also will advocate for their clients to achieve resolutions that are fair and satisfactory to each client.
The essential ingredient in the success of a collaborative divorce is an honest, open mind willing to consider all sides of an issue guided by the lawyers who have been trained in the art of collaboration. The parties must be motivated to listen to opposing views and to consider reasonable solutions.
The parties’ expectations should be fair and thoughtful after discussion with your own lawyer. Early on in a collaborative case, the parties will discuss their expectations about their post-divorce lifestyles including, for example, retaining the family home, parenting time with the children, and the need for employment of a spouse if one has not been working outside of the home in some time.
The ability to consider these issues early and carefully is critical in every case. Too often in litigation, the long-term goals of the opposing parties are not considered until after motions are made, and stress and anger are heightened. In a collaborative case, such goals establish the underpinning of the negotiations from the outset.
In a collaborative divorce, the parties and the lawyers commit to taking whatever time is necessary to talk about the issues. Full financial disclosure is required, but the requirement of production of historical documentation can be reduced. There may be numerous conferences of the parties and their lawyers. The meetings are structured with an agenda, but the discussions are free-flowing and wide-ranging. Resources may be used to supplement the expertise of the two lawyers, including mental health professionals, financial planners and accountants. Such resources may be involved inside conferences or outside the collaborative meeting since the process is flexible and not bound by legal rules of evidence and procedure.
In a collaborative divorce, Tim will avoid much of the anger and turmoil of litigation, and he will know that he and his wife gave each other a chance to talk intelligently about the issues and come to reasonable conclusions. While the parties must understand that they collaborate process is not easy or without stress, if they are honest, then they are acting in the best interests of their family.
There are more than 20 lawyers in the southern Fairfield County area who are trained in collaborative divorce. More information is available at their web site: www.collaborativedivorcect.com.