Decision Making in Collaborative Divorces

March 14, 2016

A previous entry here discussed a number of reasons for professionals to “rule out” Collaborative Divorce as a process option under certain circumstances.  This post will focus on another dynamic for divorce professionals to consider and to discuss with potential clients who are considering Collaborative Divorce – the clients’ ability to make solid decisions for themselves.

It may seem obvious that the ability to make decisions on a large number of big and small issues throughout the divorce process would be an indispensable ingredient in the stew of a Collaborative Divorce.  In litigation, by contrast, all parties and their attorneys have to do is put on their “best case” for the Judge where each party asks for all of the things he or she wants in the divorce and argues for why they should each have what they want, even over the objection of their spouse.  Once that process is complete, the Judge is the one who ultimately decides all of the terms of the divorce, including the Parenting Plan terms (custody, child support, decision making authority etc.).  The Judge also determines what he or she thinks ought to be included with the marital property to be divided, the value of those assets, and how the assets (and debts) will be allocated as between the parties.  Last, the Judge decides if there will be spousal support in the case and, if so, how much and for how long.

So once each party has argued for what he or she wants, they simply sit back and wait for an answer from the Court.  There is no need for either of them to ultimately make a decision about what the outcome will be – the decision making is offloaded onto the Court.

Clients who choose to use the Collaborative Divorce process, voluntarily agree that they will work out the settlement terms in their divorce outside of Court, although the Judge must approve their proposed settlement terms at the end of the process.  But all along the way, the parties are asked to make decisions.  Some of the decisions are relatively small, such as which parent the children will be with on Labor Day in even numbered years versus odd numbered years.  Other decisions are much bigger, such as who will reside in the marital residence after the divorce is final, or how many hundreds of thousands of dollars in retirement savings will be transferred from one spouse to the other following the divorce.

Clearly, clients are not left to make these important decisions alone.  Collaborative Divorce’s strongly held bias is that divorce is a life event that includes legal, emotional, and financial elements.  As a result, the process includes trained professionals to work with the parties all the way through the case, educating and advising the parties from all three of these perspectives before the client is ever asked to make a settlement decision.  But, at the end of the day, after all of the information has been disclosed and discussed and all of the various settlement options fully explored, the clients will ultimately be asked to decide what settlement terms work best for them and their families – or whether they cannot make a mutual decision and need to leave the Collaborative Divorce process and go to litigation.

Obviously, going through the entire Collaborative process only to leave it at the end to move into litigation following an impasse is a very expensive, inefficient, and stressful way out of the divorce. So figuring out at the beginning of the case if the client is likely going to be able to make a settlement decision is an important early step in deciding whether to use the process.

To try and help clients assess whether they can make healthy decisions in the Collaborative Divorce process, here are a few ideas:

  1.  Have an explicit conversation with the potential client about this issue in the initial consultation.  Explore the client’s personality with him or her around this issue.  Do they move through the world in an indecisive way, looking to others to make decisions for them?  If so, Collaborative may not be the right process for them.
  2. Drill down with the client whether they can let go of the possibility that they would have done better or worse in Court than whatever settlement option is ultimately before them.  If they worry that they will spend a lot time and energy after the divorce focusing on what might have happened in Court, then Collaborative is probably not a good choice.
  3. Spend significant time with the client unpacking what it means to negotiate a “mutually acceptable durable agreement.”  Talk about how “mutual” includes both them and their spouse, which means that neither party will likely be able to settle on his or her dream terms on all issues in the divorce.  Given that a “mutually acceptable durable agreement” is the North Star of a Collaborative Divorce, if they resist moving in that direction, they definitely should be directed to litigation where they will not need to agree on anything.

The majority, maybe even the vast majority, of divorcing clients are able to make solid decisions for themselves and their families using the Collaborative Divorce process, especially because the process is so intentional about addressing divorce as a multi-faceted life event rather than simply a lawsuit.  But professionals are not helping themselves or their clients if they encourage clients to consider using the Collaborative Divorce process without fully exploring whether or not the client will likely be able to make a settlement decision.

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