DIVORCE - - With or Without Bloodshed - - A Couple’s Choice!
The death of any relationship can be devastating, whether in a familial relationship, a friendship or a marriage; whether the death of the relationship is caused by physical death or by emotional dissolution. Fighting during and after the demise of the relationship only deepens the wounds and prolongs the pain, but sometimes, especially in divorce, the decision to fight is controlled by only one party to the relationship. In those situations, preparation for litigation in court by both sides is the only avenue of action. Trial preparation is expensive. Actual trials are even more expensive. (Please note that I have separated the two events. They are, in fact, separate and distinct events, a fact which most litigants do not appreciate.)
THE PROCESS OPTION CONTINUUM
Couple reaches agreement with no outside assistance
Couple reach agreement with assistance of third party neutral (Mediator). Couple may utilize attorneys as consultants, usually outside the mediation process
Couple meets in 4-way sessions with attorneys. Attorneys facilitate agreements. Attorneys are trained to assist couples to understand interests and generate options. Creative options often generated. Attorneys agree not to litigate the case.
Attorneys assert positions for clients to work toward a negotiated agreement. Attorneys may threaten to go to trial if concessions are not made. Proposals usually created by attorneys.
After full attorney-controlled discovery is complete, the case must be mediated before trial. This is pure positional bargaining. Attorneys assert positions based upon their estimates of "what I can get at court." Mediators work to undermine client and attorney confidence in the respective cases. Negotiations are brutal and time pressured and parties experience traumatic "buyer's remorse" following the conclusion, whether by settlement or impasse.
After emphasizing the negative about the other spouse in public, the ultimate decision is made by third parties (judge or jury). The couple has no input into the outcome.
In Texas, where trial courts are clogged with a backlog of cases, all litigants are required to attempt mediation prior to commencing trial. And in truth, this is working to some degree. 93% of all cases settle. But, still, our courts are backlogged.
One might assume that by avoiding trial, these cases are concluded inexpensively. One would be very wrong! Remember the caveat at the end of the first paragraph? Read it again. Unless both parties are clear from it’s the beginning that they will not resort to having their matter decided by a judge or jury, both lawyers are forced to commence preparing for the trial of every case from the first moment s/he meets with her/his client. 97% of each lawyer’s time in a case is spent preparing the case as if it were one of the 7% of the cases which will actually go to trial. There is no way for the lawyers to know which case will be tried. The purpose of this article is to explain divorce litigation to prospective clients (and, hopefully, their spouses) and suggest an alternative.
PREPARING FOR TRIAL:
The first step in preparing for litigation is the education of the lawyer about the client, the opposing party, the facts of the case, the legal aspects of the case and the estate itself. The operative phrase here is “first step”, and this step can be expensive in and of itself.
How does the attorney get the information with which s/he becomes educated? By asking the client to tell his/her story. “Tell me the good, the bad and the downright ugly.” And where do you think the attorney, and, therefore, the client must focus their attention? On the good? Or on the bad and the downright ugly? This is where the lifelong emotional scarring begins. Clients are required to open old wounds, dredge up old memories and hurts and focus on them in such a way as to cast the opposing party in a bad light and the client in as good a light as possible. This focus on the negative in one’s life for the duration of the litigation, which can last as long as six to eighteen months, prevents healing from the loss of the relationship.
The second step is the gathering of information for trial. This includes documents and other tangible evidence in the possession of the client, the opposing party and third parties. It may entail the use of investigators, forensic experts, consulting experts and the like. These people are never cheap. It usually involves the taking of oral and written depositions, both being expensive.
The third step is the analysis phase. Having gathered everything relevant about a couple’s life into boxes of documents, the lawyer must analyze and assimilate all of the information. This information does no good in the client’s head. It must be in the attorney’s head. What does the evidence say and how can it be used for or against the represented party? This takes time and time is money; and, it may take lots of time for one individual (and perhaps some needed support staff) to assimilate, interpret, categorize and organize the years of information about two people’s lives in this comprehensive manner.
The fourth step is actual preparation for trial. Now, the lawyer has to synthesize the information into a strategically planned presentation. Remember those judges with the backlogged trial dockets? They sit about six hours a day listening to cases. They listen to endless details about people’s lives and problems. Judges are human beings, with all their wonder and all their limitations, sitting in judgment of the situations of other human beings. Some of them are good at what they do and others are not. That is why your attorney must spend adequate time preparing a presentation geared to this particular judge. Every judge is different and responds differently to similar situations presentations. Every judge has preferences and some have prejudices and biases. It is your attorney’s job to know this information about the court to which you have been assigned and to prepare the case for trial with that information in mind. This takes a great deal of thought and time and time is money.
Once the case has been prepared for trial before a particular court, it is possible mediate because the lawyers have enough information about the case to grasp the parameters of settlement possibilities. But, first, the Mediator must be educated. The Mediator must have an outline of the case from each attorney’s perspective and a range of settlement possibilities. And the client must be prepared for the mediation process. More time. More thought. More money.
Mediations typically last only one day, though on occasion a mediation will extend beyond that. Both lawyers attend the mediation with their clients. Sometimes a consulting expert, such as a financial planner, CPA or psychologist, will also attend or at least remain on telephone standby to provide input into the process. Often times the children’s attorney will also be present for all or part of the mediation. All of these people are being paid by the hour. Oh, yes, and then the Mediator must be paid.
In the vast majority of cases, mediation is successful. At the conclusion of a successful mediation, the attorneys and Mediator will prepare a document called a Mediated Settlement Agreement, which, once signed by the parties, the attorneys and the Mediator, is irrevocable. Neither party can back out. This document is filed with the Court and the Mediator files a report with the Court indicating that the case has settled and that a Final Agreed Decree will be delivered to the Court for signature. The Mediated Settlement Agreement is a fairly detailed outline of the settlement, but it is not in “legalese”.
WORK AFTER SUCCESSFUL MEDIATION
Additional work will be required by both attorneys to get the Final Decree in proper form and there will likely be documents ancillary to the Final Decree which also must be prepared. Though the major expenses of litigation are now behind each litigant, preparation of final documents can be far more difficult, time-consuming, frustrating and expensive than litigants anticipate. The lawyering continues in the drafting. A carefully crafted document can box a litigant in or leave doors slightly ajar for the party, using the same Mediated Settlement Agreement as the starting point. And, both lawyers know that, so each will be looking to prepare a judgment with the least restrictions for his/her client while locking the opposing party in as tightly as possible on all agreements.
The next-to-final step is going before the Judge to make the oral proofs required by law and obtain the Judge’s signature and oral pronouncement of divorce.
Then the final step, from the lawyer’s perspective, takes place. A certified copy of the Decree and certain other relevant documents are ordered from the District Clerk and sent to the appropriate agencies or entities. Wage withholding orders are sent out to employers. Deeds, Deeds of Trust, Deeds of Trust to Secure Assumption, Real Estate Lien Notes, Powers of Attorney and Assignments of Interest are filed with the County Clerk and then sent to the appropriate people, companies and agencies. There can be numerous types of closing documents in a case and numerous people or entities through which they must pass before the implementation of the agreement is complete.
FAILED MEDIATION - GEARING UP FOR TRIAL
But, what happens when the mediation fails? After the Mediator declares an impasse and notifies the Court of that impasse in writing, each attorney must gear up for trial. Now s/he commits even the minutia to memory. S/he practices the presentation. S/he must copy the documents, mark exhibits, exchange exhibits, make exhibit lists, prepare trial motions for the court, prepare the jury charge if it has not already been done or carefully hone its wording for submission, prepare proposed divisions of property for the court, prepare suggested rulings regarding the children for the court, prepare aids for the court and/or jury (these are not necessarily evidence, though they can be, but are usually used as visual aids to the oral presentation), subpoena the witnesses, pay the experts, refine the strategy, etc. As a general rule, two hours of preparation time are needed for every hour of anticipated non-jury trial time. Three to four hours of preparation time are required for every hour anticipated for a jury trial.
Finally, trial begins! This day or these ensuing days, depending on the length of the case, will be long days for the attorney and client. It is imperative for clients to understand that there is a great deal of “down time” in the courtroom. Ancillary matters pertaining to other cases either delay the start of trial each day or cause numerous interruptions during the course of the trial. This waiting and these interruptions are frustrating, disruptive and exhausting. And, attorneys are paid during this down time.
If the trial lasts more than one day, there will be additional work to be done in the attorney’s office and perhaps with the client or witnesses before the commencement of each succeeding day. If a trial carries over into a succeeding week, the weekend will be filled with additional work for twelve or more hours per day. And, then, finally, the trial is over.
AND AGAIN - THE FINAL WORK
After the trial, the court’s judgment must be reduced to writing and all of the ancillary documents prepared in the same manner and with the same expense described above in the post-successful-mediation section.
COLLABORATIVE LAW - AN ALTERNATIVE
A COUPLE’S CHOICE
There is an alternative to the emotional and financial bloodbath described above but it takes BOTH PARTNERS agreeing NOT TO FIGHT, not to subject themselves, their estate or their children to what has been described above. And, during the alternative process of getting to divorce, it takes these two people recommitting themselves to that promise over and over again during the impasses, arguments, frustrations and bouts of fear.
THE PROCESS - HOW IT CAME TO BE
First, let me say that I have been hearing the pleas of litigants for years for some more sane way to get divorced and for a process that is gentler than mediation the way it is practiced in Texas (other states do it very differently). The concept of Collaborative Law was developed by a lawyer in Minnesota over ten years ago. Since the, Collaborative Law has spread of its own volition and is winning favor in every state where lawyers have voluntarily trained to learn this new way of getting clients through the divorce process. While Texas is a newcomer to the process, it is the first state in the nation to have a statute which acknowledges Collaborative Law as an alternative to litigation and prohibits the courts from interfering with the Collaborative Law process once litigants have declared their desire to avoid litigation. This is important in light of the “rocket docket” philosophy mandated by the Texas Supreme Court which attempts to force all cases to trial or settlement within six months. The new law prevents the courts from imposing arbitrary deadlines on litigants, with which attorneys must comply, and which cost the litigants additional money but which will in no way achieve the goal of a swift trial or settlement. The Texas Collaborative Law statute avoids all of that by instructing the District Clerks to literally move the Collaborative Law cases off the courts’ trial dockets, thereby avoiding imposition of arbitrary deadlines and their associated expenses.
THE PROCESS - HOW IT WORKS
In CL, the parties and their collaboratively trained attorneys agree:
not to take their divorce dispute to court for any reason;
to attend a series of four-way meetings where each issue of the divorce will be discussed, all fears about the future will be aired, all alternatives will be examined and conclusions satisfactory to each party will be reached with compassion and respect for the needs, wants and fears of each party; and,
to enter into a Participation Agreement, which is a contract which sets forth, at a minimum, the following matters:
neither party will seek court intervention during the process, with the exception that the parties may agree to enter into Agreed Temporary Orders through negotiation, which orders are then filed with the Court and signed by the Judge, thus becoming enforceable orders in the event the Collaborative Law process should be terminated;
both parties will be absolutely honest and not only disclose all information requested by the other spouse, no matter how damaging or painful, but also voluntarily provide all documentation requested or known to be reasonably needed by the other spouse in order to make an informed decision about the division of the estate and/or custody, support and possession of or access to the minor children of the marriage;
the parties will not dredge up the past and will not make unfounded accusations out of pain and anger;
the divorce issues will not be discussed with the children or in the presence of the children without the joint consent and presence of both parties and, possibly, with the input, advice and/or presence of a mental health professional trained in child development;
the parties may use a jointly retained, neutral expert where needed to understand or resolve an issue and this expert will be formally bound to the same standard of good faith and full disclosure as the parties;
in the event of a perceived impasse, the parties will bring in a trained Mediator to attempt a resolution of the problematic matter before discontinuing the Collaborative Law process;
neither party can be forced to sign any agreement unless the party fully understands the agreement and desires to enter into the agreement; and,
should an impasse occur or should one party decide to terminate the Collaborative Law process and seek court intervention BOTH ATTORNEYS MUST WITHDRAW FROM THE CASE AND WILL BE, THEREAFTER, FOREVER DISQUALIFIED FROM REPRESENTING EITHER PARTY OR IN ANY MANNER PARTICIPATING IN FUTURE LITIGATION BETWEEN THE PARTIES and any jointly retained experts will also, thereafter, be disqualified from working on the case or testifying at trial. The departing attorneys are allowed to assist their respective clients in retaining litigation counsel and making an orderly transition of the file.
After a series of four-way meetings, as many as needed, over as long or short a period of time as is required to achieve the goal, on a schedule which accommodates the lives of the parties and their children, using jointly retained experts when and if needed, the parties will end up with an AGREEMENT FASHIONED BY THE PARTIES, which has not been handed down by some disinterested stranger(s) with limited facts about this couple and their children.
Once the agreement has been reached, the attorneys then must prepare the Final Decree of Divorce and other ancillary documents to implement the agreement in the same manner described in the section on “FINAL WORK” above.
BIGGEST FEARS ABOUT COLLABORATIVE LAW
Most people are intrigued by the idea of Collaborative Law until they get to the part about both attorneys being required to withdraw in the event of unresolvable impasse or the unilateral decision of one party to terminate the process. The greatest concern is that the money invested in the process will have been wasted. My two responses are simple. In reality, this rarely ever happens and the vast majority of the work accomplished by the collaborative lawyers is not lost. It is simply passed on to the litigation attorneys.
In making the decision to enter this new field, I spoke personally with experienced collaborative attorneys across the country, read numerous articles by them and attended seminars put on by them. It was the first concern I expressed to them, and they responded similarly to me. Because of the work done with each party by each collaborative attorney, the people who make it far enough into the collaborative process to sign a Participation Agreement have been made aware of the complexities of the process and have determined in their own minds that the horrific emotional and financial disadvantages of the litigation process are to be avoided at all costs. When an impasse is imminent, the attorneys refocus their clients on that original decision. It is quite effective.
In those rare cases where the parties are unsuccessful in the collaborative process, each attorney has the responsibility of bringing the new litigation attorney “up to speed” in the sense that the attorney’s file, including the attorney’s work product, mental impressions and documents exchanged are turned over to the new attorney. The litigation attorney then picks up where the collaborative attorney left off but broadens the scope and depth of the discovery process in order to prepare for trial.
The second greatest fear of potential participants concerns the perception that the other spouse will not be forthcoming with information or documentation or will simply not listen to what the fearful spouse has to say. It is here that the collaboratively trained attorneys do their best work. It is the responsibility of the attorney representing the recalcitrant client or the overbearing client to correct the client’s inappropriate behavior and secure his/her cooperation in the process. Additionally, because the attorney representing the other spouse has the right to speak directly to this recalcitrant or overbearing spouse, this attorney, too, is able to work at redirecting that behavior. With the two attorneys working toward the goal of maintaining the integrity of the collaborative process, inappropriate behavior is usually corrected sufficiently to get the couple to the end goal of an agreed divorce.
“TOP 5" ADVANTAGES OF CL
I know, its supposed to be the “top 10", but for the sake of brevity, we will stick with five because, these five are the opposites of the litigation process:
5. Cuts down on duplication of work done by attorneys and experts, leading to a significant savings of money!
One of the things I pointed out about the litigation model was that at all times, two attorneys were doing the same work at the same time and each charging by the hour to do that work. That is a huge expense. In the Collaborative Law process, this duplication can be cut by at least 50% or more because of the narrowing of the scope of investigation and the ability of each attorney to obtain information directly from both parties in informal discussion without the resort to expensive discovery tools. The use of jointly retained, neutral experts obviously cuts down on costs; but, there is another aspect to this element which is not apparent to the layperson. One neutral expert can sometimes do either the gathering and/or analysis of information at an hourly rate which is less than either attorney’s hourly rate. A well-qualified expert might, for instance, analyze investment information or financial planning options for the couple and make a presentation to the attorneys and the parties at a four-way session, thereby eliminating hours of work by both attorneys. This is not to suggest that attorneys would abdicate their ultimate investigative or analytical responsibilities, but this technique can diminish the time necessary to reach a conclusion. That leaves more money in the estate for the parties to divide.
4. Promotes effective communication!
In order to come to an agreement into which both parties are willing to enter, there must be some “serious talking.” Whatever communication problems existed before the decision to divorce was made, the parties will necessarily have to overcome a significant number of them to attain the goal. This will require courage on the part of the spouses because anger, fear and resentment will inevitably surface during the four-way sessions. It is the job of the attorneys to provide the spouses a safe environment in which to air all of these emotions while at the same time preventing the spouses from slipping into old, comfortable, but usually counter-productive, communication habits. Collaborative lawyers are trained to use open-ended questions which can instantaneously refocus the parties from dwelling on past hurts back to expressing their views and concerns about the future. During the several four-way sessions where these techniques are used, the parties begin to pick up skills which they take with them into the post-divorce family structure.
3. “Ac-cen-tu-ates the Positive, E-lim-I-nates the Negative, and Doesn’t Mess With Mr. In-Be-tween”
One of the points highlighted in the discourse on litigation above was the impact upon each party of dwelling upon the past and focusing on the negative behaviors and traits of the opposing party throughout the divorce process. Litigants rarely overcome the impact of participating in this backward-looking and exaggerating process or being the recipient of its focus. Because this technique is actively and forcefully discouraged by the collaboratively trained attorneys, the parties never get very far down this slippery slop to emotional disaster before it is curtailed. This is not to say that a collaborative divorce is not painful or that there is no emotional aftermath. But, because the parties are required to conduct themselves in a dignified and respectful manner even during moments of high tension and because they have the assistance of their collaboratively trained attorneys to enforce the rules of behavior during these emotionally charged periods, the parties do not have to contend, in addition to the pain occasioned by the loss of the relationship, with post-divorce embarrassment of having engaged in deplorable, disrespectful conduct or of being its recipient. There is much to be said for leaving any bad situation with one’s head held high and the sure belief that one was treated fairly and with respect. Because the attorneys are required to work together to identify the emotional traps set by the party’s old communication style and help the spouses avoid them during negotiation, each spouse’s energy is preserved for resolution of important future issues rather than dissipated in tautological (cat-chasing-the-tail) arguments and baseless or hopelessly distorted and exaggerated accusations hurled in the heat of passion.
2. Post-Divorce Family Integrity
Having avoided the financial drain of litigation, which in its own right tends to raise the fear level of litigants, having possibly been exposed to better methods of communication with the now-former spouse and having avoided the great “Negative Abyss” of trial, the parties and their children have a more positive attitude toward the construction of a post-divorce family and their place in it. This is, obviously, critical where there are children.
1. ADHERENCE TO AGREEMENTS
And the Number One biggest advantage of the Collaborative Law process is that people are far more likely to adhere to an agreement which they had a personal role in building than one imposed upon them by a Judge, Jury or Mediator. Having been treated with respect during the course of the negotiation and having left the process with a sense of personal dignity and self-respect (and, maybe, even some newfound respect for or understanding of the other party), each party is far more likely to personally “own” the agreement and behave toward the agreement with a high degree of integrity.
As an attorney who has been a litigator for sixteen years, I can participate in the emotional and financial carnage of trial preparation and trial if my client so desires. But, where two people have a strong desire to avoid that carnage, I have now embraced the philosophy and taken the training required to offer them a less painful alternative. I urge couples to strongly consider this possibility.