Television tends to glorify the divorce process as a modern day fight to the death. Every TV show dealing with divorce shows the ugly side. They break it into segments. First, one spouse does something terrible. Second, the other spouse finds out. Third, the lawyers scream and yell. Fourth, the plot twist appears. Fifth, they go to court and the judge issues a ruling. Now, after all of that, do you think they all lived happily ever after?
In reality, TV and movies have so warped the divorce process that the average person doesn’t know what to do when the marriage fails. They assume that the meanest, loudest, most obnoxious lawyer will get the best result. Trust me. It’s not true. The judges have heard all the screaming, yelling and posturing. It rarely has any positive impact. They want the facts, and they want the facts applied to the law.
Is there a practical way to avoid the bloodshed? Yes! I’ve been certified in an emerging area of law referred to as Collaborative Law. Collaborative Law is a process of practicing law where the attorneys for the husband and wife assist their clients in resolving conflict and reaching a settlement agreement using cooperative strategies rather than adversarial techniques. No litigation! Divorce without the bloodshed!
Collaborative Law is a wonderful tool to protect your children from hostile crossfire. It’s a great way to put the children first. After all, you and your spouse will have to raise them as divorced parents for many years to come. Collaborative Law provides you with the tools and framework to discuss your different parenting styles and achieve the best balance without the cost and expense of a courtroom confrontation.
Collaborative Law is based on three principles. First, a pledge not to go to court. Second, an honest exchange of information by both spouses. Third, a solution that takes into account the highest priorities of both spouses and their children.
The process requires that each client and each lawyer must voluntarily agree to the process. Everyone signs a contract to confirm that they will work toward a settlement and, under no circumstances, will either lawyer participate in any litigation if settlement is not achieved. In a rare case where settlement is not achieved, the parties must hire different lawyers to take the matter to trial.
So, what’s the big advantage? The parties retain total control of the process. Nothing is filed with the court. There are no deadlines. There is no sheriff to serve documents. There is no rush to complete the process within a court ordered time frame. Everything remains completely private except for the final settlement agreement which is filed with the court.
Also, do you really want to give the court control over your family? Who knows what’s better for your kids than you and your spouse? Do you think the judge can make a better decision than the two of you? All the judge hears are lawyers telling stories. He’s never been to your house. Collaborative Law helps you protect your children from being caught up in the court process.
Another benefit to the process is that the final agreement (Stipulation) is likely to be more acceptable to both parties than any order made by the court after an adversarial trial. In Collaborative Law, we take our time putting together the settlement. We move only as fast as the comfort level of the parties. In the old-fashioned litigation method, you go to court to fight it out on the date and time set by the judge. You don’t have the ability to take a “time out” to seek alternatives on the day before the trial. Do you really want to spend money on court hearings, a trial, and all the stress that accompanies having people on the witness stand say unkind things about you or your spouse?
The Collaborative Law process starts with each party hiring a specially trained Collaborative Law attorney. In New Hampshire we have a Collaborative Law Alliance. Each attorney must complete a rigorous course of instruction and have sufficient years of experience in divorce law to participate. They must petition for admittance to the organization and meet certain standards of practice.
Each client signs a contract with his or her lawyer which confirms that legal representation will be provided under the collaborative model. The lawyers and the parties also sign a contract which confirms that they will all work toward the goal of an agreed settlement and will use the collaborative method.
All of the marital problems need to be addressed in order to reach an amicable settlement. The parties explore the legal issues, the emotional issues, the children’s issues and the financial matters which confront the marriage. Often the husband and wife will use counseling services in addition to legal services. Occasionally, other professional services may be needed such as accountants or financial advisors.
Usually, the process starts with each party identifying issues of concern. Information is gathered and exchanged. The lawyers have several discussions before everyone sits down to review all of the concerns and to start planning how to best move toward settlement. To some extent, it may resemble mediation, but without the mediator. There may be times where everyone is in one room having a 4-way conference and there may be times when there are private conferences between the attorney and his or her client. As the process moves forward drafts of documents are exchanged and changes made to reflect the needs of all concerned. The ultimate objective is for the attorneys to facilitate the parties reaching their own agreement.
Once a full agreement has been reached, the attorneys prepare the necessary documents to be filed with the court. Rockingham County has a Family Division of the court system. We are extremely fortunate that the judges have agreed that in most cases an agreed settlement may be filed with the Court without the need for a formal final hearing at the courthouse. The entire package can be mailed to the court and a decree of divorce will be issued to the parties by mail. Imagine, a divorce without ever having to go to the courthouse yourself!
In conclusion, if you are confronted with the need for a divorce, consider the collaborative model to help everyone maintain control of their environment and their dignity during a difficult and stressful time.
Bruce L. Dorner has built his legal career by helping individuals, families and small businesses solve legal problems, often without the need for court intervention. Mr. Dorner has served clients throughout southern New Hampshire for more than 30 years and is a member of the LawGuru Attorney Network.