For better, not worse

In collaborative divorce, couples vow to avoid strife

By LOUISA KAMPS
Special to the Journal Sentinel

Last Updated: March 8, 2003

If you want to end your marriage, you're hardly alone. The U.S. Census Bureau estimates that 50% of all American marriages will end in divorce. About 17,500 divorces were finalized in Wisconsin in 2001.

But maybe you and your spouse agree on one thing: You don't want a bitter fight. You're determined to avoid the stereotypically ugly battles over property and child custody. In fact, you'd both be willing to sign a legally binding agreement stating that.

A "collaborative" divorce could work for you - or so a new consortium of lawyers, mental health professionals and financial advisers believes.

The Collaborative Family Law Council of Wisconsin takes a multidisciplinary approach to divorce. Mental health workers consult children and spouses, financial experts help divide assets equitably and lawyers trained in the method close the deal.

While some of those things could happen during traditional divorce proceedings or mediation, they probably would not be done by neutral parties. But perhaps a more significant difference is this: By agreement, neither party in a collaborative divorce can threaten to take the other to court, where there's the risk, real or perceived, of losing everything and seeing private matters aired in public. Eliminating that risk, say advocates of collaborative divorce, changes the dynamics entirely.

There's some concern among legal observers, who worry that the approach is untested. But supporters say it is an innovative way for a couple to "divorce with respect" without fear that a judge will dictate their family's future.

"Contrary to our reputation of ripping families up, most lawyers who do divorce work know the harm that the system can do to families and children," says council founder Gregg Herman, a Milwaukee attorney. "If people want warfare, they can get it. But for people who say, 'We want to dance together at our children's weddings,' we believe there should be an avenue where lawyers work conducively to that desire."

Numbers small so far

Although it was inspired by similar programs in Minnesota and California, the Collaborative Family Law Council of Wisconsin is the first statewide organization of its kind in the United States.

So far, the numbers aren't big. Fewer than 200 couples have divorced collaboratively in Wisconsin since the council began taking clients in summer of 2001.

One Waukesha father of two who recently completed a collaborative divorce says the contract he and his wife signed at the beginning had a peacekeeping effect on their negotiations. (He and other clients interviewed asked not to be identified, citing concerns for their children's privacy).

"Before I got divorced, I said that if she and I ever went through a divorce it would be World War III. But we never got there," he says.

Throughout the process, he says, they were held to their promise - that they'd work together for their family's best interests.

Collaborative divorce is aimed at reducing the kind of parental strife that can damage children permanently.

It's also a relief to family lawyers who say traditional divorce forces them to act like sharks as they advocate on their client's behalf. Lawyers also avoid the stress of court preparation.

In a significant shift from traditional divorce, both spouses must agree to use the collaborative method, and each must hire one of the 135 lawyers who are formally trained members of the council.

All four parties - the two spouses and their two lawyers - must sign a legally binding agreement promising to remain respectful and even-keeled. It's essentially an agreement to agree.

It stipulates that both sides will disclose all financial assets and information, and any other details pertinent to the case.

This theoretically eliminates the need for traditional "discovery," in which lawyers subpoena information from the other side. The theory is that this financial "honor system" will prevent divorce nightmares such as vengeful shopping sprees and secret expenditures.

At the end of the process, when the ex-couple agrees on a settlement, its terms are registered with the local family court of Wisconsin and are as legally binding as other types of divorce. If the divorcing parties cannot reach a settlement, both lawyers will remove themselves from the case and the clients will have to start divorce proceedings again using traditional family counsel.

Candor is difference

About 98% of divorce cases in Wisconsin do end up getting settled out of court. But removing the threat of going to court, with all the attendant costs, risks and emotional turmoil, makes the tenor of four-way collaborative meetings between spouses and their lawyers significantly more civil, says veteran Milwaukee family lawyer Diane Diel, former chairman of the council.

"The difference is, if you talk about good faith, candor, and open and honest disclosure, and you say, 'Yes, that's what I want to do,' and you sign your name to a document, for most people that pretty well assures that that happens," says Diel. "(People) behave in accordance with their written word. They say that judges see criminal people at their best, and in divorce you see good people at their worst. But this is an opportunity for the good side of people to step up."

Though Diel does still handle some traditional divorce cases, she hopes to eventually restrict her practice to collaborative cases.

The process, she says, reduces the need for her and the opposing counsel to aggressively "out-lawyer" each other, routinely performing pieces of "gorilla theater" for their clients in the name of zealous advocacy.

"I've been a lawyer for 26 years, and in the time that I've been doing family law, which is most of my career, I have on such a regular basis said, 'I hate what I'm doing. This is painful, outrageously wrong,' " Diel says. "As a collaborative lawyer, I can practice within my values."

Participants have concerns

Clients say they are convinced about the advantages of collaborative divorce.

One of them is a Milwaukee mother of three who went through the process last year.

She and her husband had agreed to distribute their finances in the way that was most advantageous for their children.

They wanted a settlement fine-tuned to their needs - not thrown to the fate of a judge's impersonal ruling. "We entered our marriage with love and respect," she says, "and we wanted to leave it that way, too. We didn't want others telling us how to take our lives apart."

"Customizing" the terms of a divorce seems to be part of the appeal.

The Waukesha father and his ex-wife tailored visitation plans with the help of child specialists who made recommendations about each of their children's needs.

He's also pleased that he and his wife found a creative, mutually beneficial way to split their assets to pay for the two households their children will be shuttling between. And when the couple met with counselors, they could "blow off steam" during rough patches in the negotiations (at a cheaper hourly rate than the lawyers would have charged to listen to the same steam, he adds).

Still, both the Milwaukee mother and the Waukesha father say they did see some weaknesses.

She felt the counseling required for their children was too general.

He says that, at certain points during his divorce, the sheer newness of the process made him slightly uneasy: "There isn't a lot of history to fall back on - and at times the ad-hoc feel was a little bit like, 'Oh, boy. Am I heading down the right road?' "

Lawyers have questions

While time could work kinks out of the collaborative divorce process, some worry that time more likely will reveal significant weaknesses in its legal underpinnings.

Madison family attorney Linda Roberson, who's also an adjunct faculty member at the University of Wisconsin Law School, has her doubts.

She says the guiding principle of collaborative law - to work out divorce settlements courteously, with the intention of avoiding court (and the heavy legal fees that typically come with it) - can also be accomplished economically using traditional family lawyers trained in mediation. But if the process somehow derails in a cooperative divorce, clients are forced to start over with new counsel (at significant additional cost).

Roberson also worries that clients using the collaborative method surrender certain protections under the law that they may not even realize they'll need down the line.

"In a lawsuit generally, the lawyer has duties to the client that are very well set forth and very clearly understood by everyone. If I'm your lawyer, you can have absolute trust that what you say to me doesn't go anywhere else and that I'm not coming up with a deal that's going to make the other side happy," Roberson says. "With collaborative divorce, you lose that predictability, that regulation of attorney / client relationship."

So, to use a hypothetical example, if a woman tells her lawyer during the course of a collaborative divorce that she's met a great guy she intends to marry, the woman's lawyer is obligated to tell the other side. That could threaten the case for financial support from the ex. "I think this (scenario would create) a really significant ethical problem," Roberson says. Not only could it open the lawyer to a malpractice suit, it could create "a serious trust issue for the client."

Obviously, collaborative divorce does not work - and probably never will work - for every couple.

Milwaukee family lawyer Pat Ballman, president of the Wisconsin State Bar, agrees with Roberson's concern that certain potential "disclosure and non-disclosure issues" might arise in collaborative divorce and have not yet been tested by the law. But she's also intrigued by the agreed goals of the collaborative method.

"One thing I think the collaborative method does is force people to remember to behave a certain way and to have a schedule and agenda," says Ballman. "That's not to say you couldn't do that without the collaborative model. But I think the collaborative format sort of forces them to remember to stay on task."

Long-term effects unclear

To be sure, there's no way of knowing whether collaborative divorce will have a beneficial effect on family relations over the long run - will it truly improve the chances that ex-spouses will dance at their children's weddings, or reduce the stress of divorce on kids? But one Milwaukee mother of young children says she's glad she chose to divorce her husband collaboratively.

"Number one, (it) taught me that I had to learn to communicate, to speak up for myself and . . . what I thought my family should look like in the future," she says.

And it's a relief to know she and her ex can call on a counselor rather than their lawyers if problems arise in the course of rearing their children.

"The reality is that as a responsible adult, you have to learn to communicate with your ex if you're going to continue to raise kids. Somebody said to me, 'Oh, what a touchy-feely way to get a divorce.' But I think it's actually harder, because you have to deal with the reality, and figure it out, face to face."

She says she now has a strife-free relationship with her ex. When she observes the product of her friends' contentious divorces, she's thankful.

"Five, six years later, they're still hanging up on each other."