COLLABORATIVE DIVORCE THROUGH THE EYES OF A LITIGATOR

I have litigated cases all over Southern California for almost twenty years. I actually enjoy preparing direct and cross examination questions as well as opening and closing and I feel I am quite good at it. I even like being in trial. I find that when I listen to judges make rulings from the bench I am in awe of their ability to handle case loads exceeding 10-20 cases a day and remain crystal clear on the facts of each case, know the law and be able to give a ruling that will withstand an appeal. But, and there is a huge but, there is a better way for couples going through divorce.

When I explain to people that I offer Collaborative Divorce in my practice, they always exclaim “why haven’t I heard of that” or “I wish I knew about that option before I got divorced.” Rightly so.

Collaborative Divorce is a voluntary process for divorcing couples who agree to work together respectfully and in good faith to reach a mutually agreeable settlement without going to court. Meetings can be conducted in person or in online platforms such as Zoom. Personally, I prefer online because couples can log in from the comfort of their homes or offices without worrying about traffic, commute time or prolonged periods of absence that then require child care. To be honest, so can I which enables attorneys and other professionals to have tremendous flexibility in when sessions takes place and how often.

The Collaborative Divorce team may consist of a neutral facilitator, neutral financial professional, two Collaborative attorneys and possibly even a mediator. In California, Collaborative professionals are generally part of a practice group. They must apply to a practice group. To be eligible to apply, they must complete training in both mediation and the Collaborative Process and become members of the International Academy of Collaborative Professionals as well as have people confirm their professional reputations.

In a Collaborative Divorce, it is mandatory that all professionals involved sign a Participation Agreement where, if the process fails, the attorneys and members of the team must withdraw. The Collaborative world is very small for reasons unknown to me and it would get around quickly if a professional was using the Collaborative Process as another forum for litigation; therefore, all involved must be dedicated peacemakers.

Here are ten great qualities of a Collaborative Divorce from my perspective as a practicing litigator. 1 My litigation practice is limited to domestic violence restraining orders and contested child custody, support and property division matters. Rarely, except with domestic violence and move away cases, do my cases exceed more than one court appearance and when they do I try to convince the parties to participate in mediation either with a family law attorney or a retired family law judge. At all my consultations, I advise my client of their divorce options including litigation, mediation and collaborative divorce. 2 Online platforms easily allow for meetings to take place in the early mornings, late evenings and throughout the weekend. My Collaborative Divorce clients with a lot of job responsibility or small children love the flexibility of meetings in online platforms in the evening or during the weekend because they do not miss work and have more child care options; or, the Collaborative Divorce meetings can take place for several hours during the middle of the day and allow for drop off and pick up of children without much interference.

1. Collaborative Divorce is expensive; but, so is a litigated divorce. I would say that a litigated divorce is no less than at least double the cost of a Collaborative Divorce and far less efficient. For example, I may arrive at Court at 8:30 am. I bill my client for at least 30 minutes of travel time each way depending on the distance of the Court from my home or office, which is standard practice. Even though my client’s matter may be on the Court’s calendar for 8:30 am, depending on the how many matters the Court has on its calendar for that day, my client’s matter may not be called until 10:30, 11 or even held over to 1:30 pm. This then results in hours wasted when, in a Collaborative Divorce, those hours are spent with the couple and the Collaborative Divorce attorneys and team identifying, addressing and resolving issues. Litigators know approximately 80-90%+ of divorces settle outside of Court. Yet at least 50% of divorce costs in a litigated case are focused on preparing for hearings or a trial that are unnecessary or are unlikely to happen. In a Collaborative Divorce, all fees go towards the likeliest outcome: a mutually satisfying resolution of issues.

2. In Collaborative Divorce, the couple is unlikely to leave assets on the table. This surprises me time and time again. As the litigation world is very suspect of getting information outside of formal discovery, it shocks me that divorcing couples will disclose their assets willingly without employing formal discovery tools such as demand for production of documents, subpoenas, and depositions. Yet, the approach of immediately selecting and retaining a joint neutral forensic accountant coupled with the ability to “just ask” the other spouse questions about assets and debts makes it almost impossible to hide assets or leave them on the table. For my Collaborative Divorce clients who are still concerned about the other spouse not disclosing, I offer the opportunity to bring in his or her own forensic accountant. I have one who I have worked with on nearly all of my cases since 2012; he and I have the same work ethic and standards, which really helps my clients feel good about any agreements on support and property division that he or she may reach.

3. Litigation is a self-fulfilling prophecy and Collaborative Divorce can be too. I have found that those clients who think their cases are hard and will require litigation engage in a self-fulfilling prophecy and stay in litigation for as long as they have issues to resolve. However, those clients with the same level of difficult issues who think their divorce cases are hard but are 100% dedicated to resolving issues in the Collaborative Divorce setting also engage in a self-fulfilling prophecy and tend to stay in the out of court resolution process going forward. In the words of Henry Ford “Whether you think you can or think you can’t, you’re right.”

4. Co-parenting can improve with a Collaborative Divorce. A family law judge, and family law attorneys for that matter, are not mental health professionals. Just like the addition of joint neutral forensic accountants, mental health professionals can be brought into the Collaborative Divorce and often are critical components of the team.

5. Collaborative Divorce is a better platform to handle change. Incomes and jobs change, children change. Everything changes. My litigation clients pay a minimum of $10,000 for modification hearings and have to wait months for a court hearing and possibly even months after that for a ruling. In a Collaborative Divorce, even if the divorce is finalized, the couple can come back to the process for modifications. Appointments are quickly set and for far less than the cost of handling the modifications in Court and far quicker.

6. Couples working things out on their own may lead to the result of “you don’t know what you don’t know until you don’t know it,” and then its too late to do anything about it. I see agreements reached between unrepresented spouses that are not congruent with the law, such as both agreeing to terminate spousal support after a certain period of time even though one of the spouses has been a stay-at-home spouse for decades. I see one spouse keeping the house and the other keeping the business and retirement only to discover that the business was never valued and the spouse keeping it is getting a huge windfall. My own clients either in my Collaborative, mediated, or litigation practice often tell me that because their accounts are in their names and always have been there is no community property component, meaning the other spouse is not entitled to half. None of these scenarios are congruent with the law. Rather than working out something on your own without knowing the law, it makes sense for both spouses to have their own, respective, attorneys and what better than two attorneys who are dedicated to helping the couple resolve issues outside of court with the availability of a highly trained team of experts who can come into the Collaborative Divorce room to support them.

7. Disqualification clauses are nowhere to be found in a litigated divorce. Couples can start out litigating and then try to resolve issues outside of Court either through letter writing between attorneys, informal settlement conferences between attorneys and the couple, or use of mediators and private judges. The problem with these approaches is the threat that one of the spouses could switch attorneys or go back to court is powerful and can sometimes force someone into an agreement that does not feel good to him or her. It makes sense then to start out early with a Collaborative Divorce, where the entire team is disqualified if one of the spouses decides to leave. I actually love signing disqualification clauses because they force me to really think as an attorney; I cannot get frustrated with the lack of an immediate and apparent solution and say “we will just let the judge decide.” Rather, I have to dig deep with my client and the Collaborative Divorce team to come up with solutions that will work for everyone. Its not a secret that I have to manage my client’s anxiety about the other side leaving the Collaborative Divorce process before It starts. That anxiety is pretty much alleviated when it starts because it is apparent in the words chosen, and strategies implemented, by the highly trained team that the Collaborative Divorce process will help the couple achieve a result they both can live with. Like most people, I have been on various diets and fitness programs to optimize health and wellness; I often hear the coaches say: “trust the process.” I may not feel any better, or see any results, the first two weeks, but, after a month, the results start picking up speed and as long as I do not self-sabotage then the results stay around. The same approach applies to a Collaborative Divorce.

8. Litigation does not offer the opportunity to have a divorce coach or facilitator; however, Collaborative Divorce does. Divorce coaches or facilitators help to manage the emotions and focus both spouses on what is important to each of them.

9. I am saving the best two for last, but, one of my favorites is that a child specialist can be brought into a Collaborative Divorce. Minor’s counsel can be appointed and evaluations can take place in the litigated divorce case; but, a motion with a cost of at least $10,000 must be filed first and a hearing date will not take place for several months. A child specialist can be interviewed by the couple in the Collaborative Divorce process and brought in within the first few weeks if not sooner.

10. Child and spousal support. These are decided in court with either software or a set of statutory factors and, for example, a Court does not have the ability to order a spousal support buyout. Both child support and spousal support can be negotiated and numbers reached that both spouses could live with and if one or both cannot live with these numbers, then the team must work creatively to come up with a better solution.

I want to thank Adam B. Cordover, Esq., Collaborative attorney in Florida for writing his article “Enrolling Both Spouses/Partners into the Collaborative Process: Outline & Sample Talking Points.” His article inspired a lot of my points above coupled with my litigation experience. I would like to add that I am frequently confronted by attorneys in other practice areas, even if family law, who ask me “It can’t be possible for divorcing couples to work through issues amicably?” Not only is it possible, it is happening. All over the world, every day.

This material is provided for educational purposes only. Providing this information does not establish an attorney/client relationship. None of the information contained in this blog should be acted upon without first consulting with an attorney. Should you have questions about the content of this blog, please arrange to discuss via a consultation.