I. COLLABORATIVE FAMILY LAW (“CFL”)
CFL is one process option along a range of options available for the termination of a marriage. On one end of the options is a couple sitting down at the kitchen table and reaching an agreement on all of their issues. On the other end is the traditional litigation system, which requires that an outside third party make decisions concerning the termination of the marriage. There has been a considerable body of research focused on divorce and children. In virtually every study, the conclusion is the same. High levels of parental conflict are toxic to children. CFL will help you focus your energies on the “good divorce.” That is, if a marriage must end, CFL focuses on helping you work toward a relationship that will allow for healthy post-divorce communication, protect the emotional and mental health of your children, and protect against the financial erosion of the marital estate. As you read this, you might feel such a divorce would be impossible in your situation. There may be hurt, mistrust and anger. It is the rare divorce that doesn’t have some of these feelings. Your lawyer has experience in dealing with all these emotions. Perhaps the overriding emotion you are feeling is fear. People often experience fear around parenting arrangements, whether lifestyles can be maintained, and how assets and liabilities will be divided.
The goal of the Collaborative Family Law process is to help you make meaningful agreements that allow you to move toward the termination of your marriage with dignity and respect.
II. UNDERSTANDING THE BASICS OF COLLABORATIVE FAMILY LAW
In a CFL case, a husband and wife are each represented by an attorney trained in interest-based negotiation, the structure of the CFL case, and interpersonal conflict resolution skills. The attorneys and clients enter into a contract, called a “Participation Agreement.”
Your attorney will review the Participation Agreement with you. It is important that before you sign the Participation Agreement, you read it, understand it, and feel comfortable with its terms. The Agreement provides that each of you is represented by your own attorney. In spite of the fact that much of the work is done in four-way meetings and the goal is to create a mutual, problem-solving atmosphere, each party is represented solely by his or her attorney. The four-way meetings are confidential and pursuant to the Participation Agreement, statements made cannot be used in a subsequent court case. The Participation Agreement requires each of you to fully and completely disclose all information relevant to the determination of the issues. It is important that all assets and liabilities are disclosed, and that before agreements are made, each of you understands the value of those assets and liabilities. It is also important that before agreements are made, you each understand your budgetary needs and the nature of the income available to support each household.
In some cases, you, your spouse, and the attorneys may decide that additional associated professionals might be helpful to the resolution of your case. For example, where there are issues related to parenting, you may decide to use the services of a Child Specialist. A Child Specialist is a mental health professional that is jointly retained by you and your spouse as a neutral consultant. The Child Specialist is in a unique position to provide assistance to a family. With your consent, the Child Specialist may suggest meeting with your child or children and you and your spouse to gather information regarding all of your interests and concerns. The Child Specialist will be able to inform you about common reactions children have about divorce, discuss developmental and practical considerations important to making parenting arrangements, and assist you in developing realistic parenting time plans. Additionally, the Child Specialist can serve as a resource after your divorce, to help you and your children through difficult transition periods as the children get older.
You may also choose to engage the services of a certified financial planner. A certified divorce financial planner can assist each or both of you to develop realistic post-separation budgets. The financial planner may also generate support calculations and provide projections for understanding the long-term implications of settlement options.
Finally, in some cases where communication between a couple is difficult, you and your spouse may choose to retain Coaches to assist you both. Coaches can assist in creating a new communications dialog that will allow you to optimally work within the Collaborative model.
While at first blush, this might feel like a “cast of thousands”, in reality, in certain cases, it is a more cost-effective way to “outsource” specific issues to professionals that understand the Collaborative Process, and will likely charge at a lower hourly rate than your attorney. In your case you may use all, some or none of the associated professionals.
The Participation Agreement requires that both attorneys are precluded from representing their respective clients in the event the case reaches impasse, or in the event either party chooses to withdraw from the process. If additional professionals are engaged, they too are precluded from participation in the court process. If you find that you are “stuck” on certain issues, other options, such as impasse mediation or neutral evaluation may assist in resolving the impasse. If the impasse cannot be broken, your attorney will assist you in transitioning your case to an attorney who will take the case to court for you.
III. THE COLLABORATIVE FAMILY LAW CHOREOGRAPHY
One of the critical components of the CFL process is that you and your lawyer will prepare for meetings and structure the negotiation along the same path as your spouse and his or her lawyer. Your lawyer will meet with you to discuss your concerns and the agendas for the four-way meetings.
Your lawyer will ask you to focus on your interests, concerns, goals and objectives. This is important because you will be engaging in “interest based” (often called “win-win”) negotiation. In essence, your interests are those things that are important to you regarding the termination of your marriage. When you think about your interests, you might ask yourself how you will be able to measure whether you have a satisfactory agreement when your case is completed. Interests are in essence, the big picture. For example, an “interest” might be security for the children. This differs from a “position.” A “position” would be . . . “I have to have the house for the children.” While retaining a house might be an option to meet an interest, in the Collaborative process, it is important to look at all of the various options that meet important interests. An interest might be, “It is important to me to have security in my retirement years.” A “position” would be . . . “I must retain my retirement plan.”
After your lawyer has an opportunity to understand what is important to you, your lawyer will communicate with your spouse’s lawyer. This will give the lawyers an opportunity to learn about your case from your spouse’s perspective, and to begin discussing how information can be efficiently gathered. If there are immediate crisis issues, the lawyers will discuss a framework for focusing on those issues.
The lawyers will assist you in creating an agenda for the first four-way meeting. The four-way meetings generally take place in two-hour sessions. The majority of the Collaborative work is accomplished in four-way meetings, although you will have ample opportunity to meet privately with your attorney. At the four-way meeting, the Participation Agreement will be reviewed. You should spend some time reviewing the Participation Agreement before the four-way meeting to be sure that you understand its terms. The lawyers will also provide an overview of the entire process with you, and reiterate communications guidelines helpful for effective four-way meetings.
For many people going through the termination of their marriage, the idea of a meeting with their spouse and their spouse’s attorney can produce real anxiety. The lawyers are aware of your anxiety, but if you are particularly anxious, you should share that with your attorney.
After the four-way meeting, you will likely spend some time with your attorney discussing what needs to be done and agendas for upcoming meetings. If you have any concerns about the Collaborative process, you should always share those concerns with your attorney.
IV. ROADMAP OF THE COLLABORATIVE PROCESS
In some cases, couples terminating their marriage are dealing with immediate issues, and in some cases there is the luxury of focusing on more long-term issues. Generally speaking, the process involves the following:
- Exploring and understanding your interests/concerns and your spouse’s interests/concerns;
- Gathering all information necessary to make good decisions. Full disclosure is essential;
- Understanding the value of what has been disclosed (this may mean retaining neutral appraisers, business valuation
- Understanding the nature of the assets and liabilities (for example, taxed vs. accounts not yet taxed).
- Where the parties agree it would be helpful, involving mental health professionals or others.
- Generating options;
- Choosing from those options.
Throughout the process, your attorney will work with you to assist in the negotiation of your case. The attorney will help elicit your concerns. It is also important that your attorney has an opportunity to understand your spouse’s concerns. Your attorney will work to ensure all of the necessary information is on the table and will assist you in generating creative options and in analyzing those options.
There are a lot of different ways to analyze options. One way is to determine how the court system might determine a particular issue. Another is to determine how a particular option actually fits into your family, regardless of the court outcome. If you choose an option that is very different than a possible court-generated outcome, your attorney may want to ensure you are fully apprised of the consequences of that decision. This is not to preclude you from going in a specific direction, but rather to insure you are moving in a direction with full awareness. It is not unusual for couples in the Collaborative process to select options that are far more creative and tailored to the needs of their family than court-generated decisions.