Collaborative Divorce: A Better Way for Parents
By Randy Heller, LMHC, LMFT and Robin Caral Shaw, Esq.
The typical scenario for a litigated divorce: The husband, his lawyer, and witnesses sitting on a bench in one hallway, while the wife and her entourage wait around a corner in another hallway. The courthouse itself is filled with security, police officers, intensity. At the judge’s chambers, there is no interaction, no communication.
Everything about this environment is wrong for handling family matters and relationships.
Fortunately, the courts do not provide the only model for a divorcing couple.
There is another way
With the increasing number of families experiencing divorce, it is exceedingly important that professionals such as lawyers, accountants, financial planners, therapists, judges, and child advocates, do whatever possible to protect the best interests of all parties involved, particularly when there are children concerned.
In an ordinary litigated divorce, attorneys, treat divorce as they would with any other lawsuit. But a growing trend known as collaborative divorce allows attorneys and others such as mental health professionals and financial advisors to work together as a team to facilitate the peaceful resolution of issues by signing an agreement not to go to court at the beginning of the process.
A chilling courthouse scene such as the one described can be avoided by using the collaborative divorce process, with the entire team agreeing not to go to court. The collaborative divorce process provides a support system that incorporates the needs of the children as well as the financial and emotional issues of the parents. In a collaborative divorce, there is no courtroom drama. In fact, with a collaborative divorce, both husband and wife are not required to go to court since all details of the divorce are resolved and all paperwork completed before the Final Hearing is set.
In a collaborative divorce, there are discussions about child development, co-parenting in divorce, the importance of making the best interests of the children a priority, and the desirability of developing a respectful and peaceful relationship between parents. With the guidance of the Collaborative Mental Health Professional, the divorcing parties learn new ways of communicating with each other and with their children, establishing patterns to be implemented long after the divorce. Since collaborative process uses meetings with the husband, wife, their attorneys, a neutral mental health professional, and often a neutral financial planner, all decisions made are cooperatively and are within the control of the clients.
Best interest of the children
Most state laws require decisions to be made with the best interests of the children in mind. Parents are required to consult one another (“shared parental responsibility”) in making decisions about their children. They benefit greatly from the communication skills that are taught, and the parenting plans that are developed during the collaborative process, which provides a bridge between marriage and divorce.
Litigation is the alternative to learning to communicate. The husband and wife talk through their attorneys, make demands of each other, perpetuate their anger, and may continue to injure the children emotionally throughout the process. One serious problem with this approach is that the attorneys or judge may make decisions that are not what either parent would want. The couple gives up all control over the process in the litigation method, and must either live with the results or perpetuate the arguing.
In litigation, a typical hearing requires hours of preparation while the couple and their attorneys may only have 15 minutes with the judge. At the hearing, only the attorneys may be allowed to speak, not the parents. The judge may or may not have read the material submitted by the parties’ attorneys and may or may not be familiar with the entire case; yet, the judge will render a decision that is binding to the divorcing couple.
Much of the literature about divorce speaks to the notion that children face challenges in their relationships with their parents after divorce. However, research findings also suggest that if the divorce is handled in the most amicable way, if the costs are not financially devastating, and if the parents can maintain a positive relationship, particularly with respect to parenting, the children will fare better and the possibilities exist for continued adaptation, adjustment, and resiliency in new life circumstances and well being. Studies also indicate that constructive communication, which leads to less conflicted relationships between parents after divorce, can result in lasting and positive interactions between children and their parents.
Collaborative family law is a client-driven process. It offers the opportunity to manage intense emotions and conflicts during settlement conferences so that effective communication can be established, and problem solving is possible, allowing the parties to feel comfortable with their commitment not to go to court.
Professionals trained in the collaborative divorce process believe that a “team approach” to divorce is a viable solution. The "interdisciplinary team" approach incorporates the expertise of lawyers and mental health professionals, as well as financial advisors (and child specialists when needed), collaborating to reach a peaceful resolution of issues between the divorcing couple. Proponents of the collaborative divorce process find a benefit in engaging a mental health professional trained in understanding and integrating the dynamics of relationships and interactions among participants, to facilitate communications throughout the process. Communication skills learned can and should extend beyond settlement conferences and assist participants with resolving challenges including “sharing” and co-parenting their children in an effective way. This is a life-long responsibility that does not end when the documents are finalized.
Current research efforts are attempting to measure or quantify the long - term effectiveness of this process emotionally, financially and strategically. Unfortunately, we are already aware of the detrimental impact of an “ugly” divorce on the future of families. Collaborative divorce provides another way.