Litigating Matrimonial Cases

The litigation system we inherited is not well-suited to resolving marital disputes. Those of us who have litigated divorces for decades have come to understand that litigation is not the preferred route to deciding marital discord. Most family court judges overtly state that the litigants would be better served by an amicable resolution reached after each spouse's needs have been considered rather than a contested trial. In fact, one court of appeals judge in California has noted that 'family law court is where they shoot the survivors.'

Fully contested litigations leave both spouses bloodied and have a permanently inimical effect on children. There are no winners in matrimonial cases resolved by the litigation paradigm. Seeking a better way, matrimonial attorneys turned to mediation, which solves many of the problems created by the litigation process, but has its own inherent weaknesses. Many mediated agreements are later set aside because financial disclosure was lacking, or because one or even both parties lacked proper representation.

Collaborative Paradigm

Collaborative divorce law is the most recent paradigm that attempts to avoid the harsh damage caused by litigation, while preserving the substantial benefits of professional representation for each spouse and frequently the children.

The collaborative method involves a multi-disciplinary procedure in which each spouse and his or her own attorney contractually agree, in writing, to resolve all issues on an agreed basis without resorting to litigation, except to obtain court approval of the settlement agreement and to sign necessary orders or judgments to effectuate the agreement. The collaborative lawyers cannot serve as litigation counsel. Thus, all participants in the collaborative process, clients and lawyers alike, are highly motivated to resolve the dispute without judicial intervention.

The collaborative process does not work for all couples. Each spouse must agree to total financial transparency during the collaborative process. The standard of honesty is so high that a lawyer must either terminate the collaborative process or withdraw if his or her client is being deceitful. The process relies on honesty, cooperation and integrity. For some couples, this standard is as unreasonable in divorce as it was in marriage. For other couples, and their children, collaborative law provides a multi-disciplinary model that protects the dignity and long-term interest of all family members.

The Collaborative Process

There are three phases to the collaborative process. The first, Stage One, introduces the client to the option and explores whether the client and his or her spouse are mature enough to dissolve their relationship without litigation. Financial issues are explored, the marital estate is defined, and child-care options discussed. The client then is offered the ability to bring material home to his or her spouse that describes the collaborative alternative. If both spouses think collaboration is appropriate, they each select lawyers trained in the collaborative process. The lawyers contact each other and arrange the topics to be reviewed at the initial meeting.

Goals of Stage One

A major goal of the first meeting is the resolution of the collaborative contract, which is the heart of the process. The collaborative contract provides that each lawyer must withdraw from representation if the process breaks down and litigation becomes necessary. A recent New Jersey ethics opinion emphasized the importance of advising each client in advance of signing the collaborative contract about the serious ramifications it can have. If the collaborative process breaks down or is terminated by either spouse, both clients may be forced to incur substantial expense to retain new counsel for the ensuing litigation. Clients must knowingly consent to this risk early in the divorce process. Thus, a notable risk that is unique to the collaborative process is that the adverse party has the power to terminate the collaborative process and thereby terminate the attorney-client relationship of the other spouse. This inherent limitation on representation requires collaborative lawyers to be vigilant about the good faith and integrity of the other spouse before signing the collaborative agreement at the first meeting. Each lawyer must ethically determine whether the risk is justified and advise the client accordingly. This ethical decision falls upon the shoulders of the lawyer ' not the client ' and making the right choice is critical to the success of the process.

Thus, the collaborative process places intense demands on the participating attorneys from inception. While the process is amicable, the attorney cannot be less zealous or thorough in fulfilling his or her responsibilities. Indeed there is a clear risk that a spouse who has something to hide will affirmatively promote the collaborative alternative to an ignorant spouse rather than risk exposure through the more traditional litigation process.

Stage Two

Once the collaborative agreement is signed by counsel and clients, the second stage of the collaborative process begins. This stage is characterized by a series of carefully structured four-way meetings, which are complemented by pre- and post-meeting sessions be-tween attorney and client, and between both attorneys. Unlike traditional litigation roles, clients must openly participate in four-way sessions and cannot hide behind counsel. The specific positions taken by the clients and the lawyers in four-way meetings is mapped out with counsel before each session and reviewed after each session. Unlike the litigation model, the collaborative attorney can and does speak directly to the other lawyer's client when appropriate. This direct communication maximizes the group's creative problem-solving potential and permits the adverse party to feel 'heard' by opposing counsel. Being 'heard' is at the heart of this process. A major reason that many families wind up in court arises from one or both parties' desperate need that someone validate him or her. Na've clients believe that a trial will result in a judicial proclamation that they are 'right' and that their spouse is 'wrong.' As we all know, this is not what actually happens at trial, except the trials we watch for entertainment on television. Thus, an attorney in the collaborative process will frequently validate opinions, options and feelings expressed by the other lawyer's client.

Multi-Disciplinary Approach

During the Second Stage of the collaborative process, collaboratively trained psychologists or social workers (called 'coaches'), child specialists and financial planners may become involved. Much like the litigation model, not all solutions are known to attorneys, and experts are employed to assist in evaluating and resolving disputes.

The divorce coach helps the client separate purely emotional issues from pragmatic solutions. In fact, divorce coaches, trained in the psychology of divorcing couples, can be used early in the process to help clarify client goals and enhance the clients' ability to express such goals maturely and in a reasonable manner. The neutral financial specialists help the parties organize and evaluate assets and provide sophisticated financial projections related to support, anticipated expenses, such as orthodonture costs and college tuition payments, and even engage in retirement and estate computations.

The third component of the interdisciplinary team is the child specialist. Analogous to the role filled by a child's law guardian in litigation, a child specialist may be involved from the inception to guide a couple through the difficult process of initially telling children about the divorce. Child specialists help the team keep a sharp focus on the children's needs throughout the collaborative process.

Members of the collaborative team are authorized by the couple to speak to each other, a process which facilitates resolution development. The team agreement helps start and maintain the momentum of consensus needed to move the collaborative process from beginning to end. While confidentiality is waived among team members, all information disclosed in the collaborative process cannot be used if litigation becomes necessary, except, of course, the financial disclosure used in both litigation and collaboration.

The interdisciplinary approach provides clients with the expertise they need to understand alternative resolutions, and the team can help the attorney guide the client toward the resolution that fits best. The interdisciplinary team enhances and supplements, but does not supplant the lawyer's role.

Stage Three

The third and final stage of the collaborative process is, of course, resolution. Once a couple has seen the options available for their unique situation, they must reach a binding written settlement and enter a judgment. Resolution is accomplished in the same fashion as a settlement agreement in litigation. One attorney drafts the settlement agreement, which is reviewed, discussed, clarified and modified by the group. Each client is therefore more fully informed about his or her obligations and rights. Once executed, the settlement agreement is incorporated into a final divorce decree.

The collaborative law process differs from the litigation process. In collaborative law, the parties maintain control over their future lives and participate in the choices available. A judge does not decide; each party decides. This generally increases compliance with obligations, especially child support obligations. In the collaborative process, attorneys must frequently counsel their own clients to assume a more reasonable and compromising position. This role is usually fulfilled comfortably by older, more experienced practitioners. Young attorneys will find this role more challenging. Experienced counsel is frequently better suited to selecting neutral financial experts to advise the parties and appraise business interests. All of these features can result in dramatic cost reductions in the divorce process.

While not suited for couples with a background of abuse or couples who are not ready to solve their current and future dissolution problems, collaborative law is clearly an excellent option. It is a tool that can provide optimal results for both parties and their children, if there are any. Properly applied, it is equivalent to a new type of scalpel that can be used in the hands of a committed, experienced lawyer to separate a couple through bloodless surgery. Collaborative law, which began in both Minnesota and California, appears to be a rapidly growing alternative to traditional litigation. A recent Google search disclosed collaborative law groups practicing in 26 states and many other countries. In fact, anecdotal articles describe collaborative divorce law as responsible for over half the divorce resolutions in Canada.

Conclusion

Since the collaborative process is unique and, in critical ways, dissimilar to litigation, special training is required to join a collaborative law group. A background in the mediation process, if not a prerequisite, is extremely helpful, because collaborative practice uses many of the techniques used in mediation. Collaborative law training is available throughout the country. For more information, go to www.IACP.com (Web site for the International Academy of Collaborative Professionals, and www.collaborativedivorce.com).

Charles J. McEvily, a member of this newsletter's Board of Editors, is a partner at DaSilva, Hilowitz & McEvily LLP in Garden City, NY. He is a Fellow of the American Academy of Matrimonial Lawyers, which has certified him as a divorce mediator; serves as a member of the New York Collaborative Law Group; and is on the faculty of the National Institute of Trial Advocacy.

The litigation system we inherited is not well-suited to resolving marital disputes. Those of us who have litigated divorces for decades have come to understand that litigation is not the preferred route to deciding marital discord. Most family court judges overtly state that the litigants would be better served by an amicable resolution reached after each spouse's needs have been considered rather than a contested trial. In fact, one court of appeals judge in California has noted that 'family law court is where they shoot the survivors.'

Fully contested litigations leave both spouses bloodied and have a permanently inimical effect on children. There are no winners in matrimonial cases resolved by the litigation paradigm. Seeking a better way, matrimonial attorneys turned to mediation, which solves many of the problems created by the litigation process, but has its own inherent weaknesses. Many mediated agreements are later set aside because financial disclosure was lacking, or because one or even both parties lacked proper representation.

Collaborative Paradigm

Collaborative divorce law is the most recent paradigm that attempts to avoid the harsh damage caused by litigation, while preserving the substantial benefits of professional representation for each spouse and frequently the children.

The collaborative method involves a multi-disciplinary procedure in which each spouse and his or her own attorney contractually agree, in writing, to resolve all issues on an agreed basis without resorting to litigation, except to obtain court approval of the settlement agreement and to sign necessary orders or judgments to effectuate the agreement. The collaborative lawyers cannot serve as litigation counsel. Thus, all participants in the collaborative process, clients and lawyers alike, are highly motivated to resolve the dispute without judicial intervention.

The collaborative process does not work for all couples. Each spouse must agree to total financial transparency during the collaborative process. The standard of honesty is so high that a lawyer must either terminate the collaborative process or withdraw if his or her client is being deceitful. The process relies on honesty, cooperation and integrity. For some couples, this standard is as unreasonable in divorce as it was in marriage. For other couples, and their children, collaborative law provides a multi-disciplinary model that protects the dignity and long-term interest of all family members.

The Collaborative Process

There are three phases to the collaborative process. The first, Stage One, introduces the client to the option and explores whether the client and his or her spouse are mature enough to dissolve their relationship without litigation. Financial issues are explored, the marital estate is defined, and child-care options discussed. The client then is offered the ability to bring material home to his or her spouse that describes the collaborative alternative. If both spouses think collaboration is appropriate, they each select lawyers trained in the collaborative process. The lawyers contact each other and arrange the topics to be reviewed at the initial meeting.

Goals of Stage One

A major goal of the first meeting is the resolution of the collaborative contract, which is the heart of the process. The collaborative contract provides that each lawyer must withdraw from representation if the process breaks down and litigation becomes necessary. A recent New Jersey ethics opinion emphasized the importance of advising each client in advance of signing the collaborative contract about the serious ramifications it can have. If the collaborative process breaks down or is terminated by either spouse, both clients may be forced to incur substantial expense to retain new counsel for the ensuing litigation. Clients must knowingly consent to this risk early in the divorce process. Thus, a notable risk that is unique to the collaborative process is that the adverse party has the power to terminate the collaborative process and thereby terminate the attorney-client relationship of the other spouse. This inherent limitation on representation requires collaborative lawyers to be vigilant about the good faith and integrity of the other spouse before signing the collaborative agreement at the first meeting. Each lawyer must ethically determine whether the risk is justified and advise the client accordingly. This ethical decision falls upon the shoulders of the lawyer ' not the client ' and making the right choice is critical to the success of the process.

Thus, the collaborative process places intense demands on the participating attorneys from inception. While the process is amicable, the attorney cannot be less zealous or thorough in fulfilling his or her responsibilities. Indeed there is a clear risk that a spouse who has something to hide will affirmatively promote the collaborative alternative to an ignorant spouse rather than risk exposure through the more traditional litigation process.

Stage Two

Once the collaborative agreement is signed by counsel and clients, the second stage of the collaborative process begins. This stage is characterized by a series of carefully structured four-way meetings, which are complemented by pre- and post-meeting sessions be-tween attorney and client, and between both attorneys. Unlike traditional litigation roles, clients must openly participate in four-way sessions and cannot hide behind counsel. The specific positions taken by the clients and the lawyers in four-way meetings is mapped out with counsel before each session and reviewed after each session. Unlike the litigation model, the collaborative attorney can and does speak directly to the other lawyer's client when appropriate. This direct communication maximizes the group's creative problem-solving potential and permits the adverse party to feel 'heard' by opposing counsel. Being 'heard' is at the heart of this process. A major reason that many families wind up in court arises from one or both parties' desperate need that someone validate him or her. Na've clients believe that a trial will result in a judicial proclamation that they are 'right' and that their spouse is 'wrong.' As we all know, this is not what actually happens at trial, except the trials we watch for entertainment on television. Thus, an attorney in the collaborative process will frequently validate opinions, options and feelings expressed by the other lawyer's client.

Multi-Disciplinary Approach

During the Second Stage of the collaborative process, collaboratively trained psychologists or social workers (called 'coaches'), child specialists and financial planners may become involved. Much like the litigation model, not all solutions are known to attorneys, and experts are employed to assist in evaluating and resolving disputes.

The divorce coach helps the client separate purely emotional issues from pragmatic solutions. In fact, divorce coaches, trained in the psychology of divorcing couples, can be used early in the process to help clarify client goals and enhance the clients' ability to express such goals maturely and in a reasonable manner. The neutral financial specialists help the parties organize and evaluate assets and provide sophisticated financial projections related to support, anticipated expenses, such as orthodonture costs and college tuition payments, and even engage in retirement and estate computations.

The third component of the interdisciplinary team is the child specialist. Analogous to the role filled by a child's law guardian in litigation, a child specialist may be involved from the inception to guide a couple through the difficult process of initially telling children about the divorce. Child specialists help the team keep a sharp focus on the children's needs throughout the collaborative process.

Members of the collaborative team are authorized by the couple to speak to each other, a process which facilitates resolution development. The team agreement helps start and maintain the momentum of consensus needed to move the collaborative process from beginning to end. While confidentiality is waived among team members, all information disclosed in the collaborative process cannot be used if litigation becomes necessary, except, of course, the financial disclosure used in both litigation and collaboration.

The interdisciplinary approach provides clients with the expertise they need to understand alternative resolutions, and the team can help the attorney guide the client toward the resolution that fits best. The interdisciplinary team enhances and supplements, but does not supplant the lawyer's role.

Stage Three

The third and final stage of the collaborative process is, of course, resolution. Once a couple has seen the options available for their unique situation, they must reach a binding written settlement and enter a judgment. Resolution is accomplished in the same fashion as a settlement agreement in litigation. One attorney drafts the settlement agreement, which is reviewed, discussed, clarified and modified by the group. Each client is therefore more fully informed about his or her obligations and rights. Once executed, the settlement agreement is incorporated into a final divorce decree.

The collaborative law process differs from the litigation process. In collaborative law, the parties maintain control over their future lives and participate in the choices available. A judge does not decide; each party decides. This generally increases compliance with obligations, especially child support obligations. In the collaborative process, attorneys must frequently counsel their own clients to assume a more reasonable and compromising position. This role is usually fulfilled comfortably by older, more experienced practitioners. Young attorneys will find this role more challenging. Experienced counsel is frequently better suited to selecting neutral financial experts to advise the parties and appraise business interests. All of these features can result in dramatic cost reductions in the divorce process.

While not suited for couples with a background of abuse or couples who are not ready to solve their current and future dissolution problems, collaborative law is clearly an excellent option. It is a tool that can provide optimal results for both parties and their children, if there are any. Properly applied, it is equivalent to a new type of scalpel that can be used in the hands of a committed, experienced lawyer to separate a couple through bloodless surgery. Collaborative law, which began in both Minnesota and California, appears to be a rapidly growing alternative to traditional litigation. A recent Google search disclosed collaborative law groups practicing in 26 states and many other countries. In fact, anecdotal articles describe collaborative divorce law as responsible for over half the divorce resolutions in Canada.

Conclusion

Since the collaborative process is unique and, in critical ways, dissimilar to litigation, special training is required to join a collaborative law group. A background in the mediation process, if not a prerequisite, is extremely helpful, because collaborative practice uses many of the techniques used in mediation. Collaborative law training is available throughout the country. For more information, go to www.IACP.com (Web site for the International Academy of Collaborative Professionals, and www.collaborativedivorce.com).

Charles J. McEvily, a member of this newsletter's Board of Editors, is a partner at DaSilva, Hilowitz & McEvily LLP in Garden City, NY. He is a Fellow of the American Academy of Matrimonial Lawyers, which has certified him as a divorce mediator; serves as a member of the New York Collaborative Law Group; and is on the faculty of the National Institute of Trial Advocacy.