Pitfalls for Collaborative Divorce Attorneys

May 16, 2016

Previous posts have looked at the ways Mental Health Coaches struggle in Collaborative Divorce cases as well as the ways in which Financial Neutrals can unintentionally get in the way of solid divorce settlement agreements.  This post will look more closely at the ways in which Collaborative Divorce lawyers can end up being part of the problem.

I used the language of “over-functioning” and “under-functioning” as a frame for how the two types of neutrals can be problematic in Collaborative Divorce cases and I will use that same idea here as it relates to lawyers.

In my experience, lawyers are more likely to over-function than under-function in cases.  When Collaborative Divorce attorneys over-function, it typically shows up as the lawyers’ inability or unwillingness to meaningfully “share power” with the two neutrals and fully respect the role those other professionals play in the divorce process.  Stated another way, the lawyers see the divorce fundamentally as a lawsuit (where they are driving the boat) rather than a life event that has legal, emotional, and financial elements, all of which need to be intentionally addressed in the divorce.   As a result, the lawyers end up seeing the two neutral professionals as functioning as the lawyers’ de facto assistants, who should do what, and only what, the lawyers tell them the do.

More specifically, over-functioning lawyers tend to downplay the emotional divorce and the ways in the which Coach might be helpful in working with the parties on processing the strong feelings that come up in divorces.  They also tend to minimize the important financial expertise the Financial Neutrals bring to the clients, and instead assert their own opinions or ideas about divorce finances, despite the fact that the lawyers rarely have any professional background or credential related to finances or taxes.  Over-functioning attorneys typically discourage clients from meeting alone with either of the neutrals, even when legal issues are not going to be discussed, because they feel like they need their hand to be in every aspect of the case since they see themselves as being fundamentally “in charge” of the divorce.

When lawyers approach a Collaborative Divorce in this way, they are over emphasizing the role of the law (in the same way that divorce litigation does), which ends up working against Collaborative Divorce’s bias that divorces are more complicated than simply being lawsuits like any other lawsuit.  When clients choose to use the Collaborative Divorce process because they want the legal, emotional, and financial elements of the divorce all to be addressed, they can become confused and frustrated when the lawyers end up taking up all of the space in the room.  Legal fees are, of course, significantly higher when lawyers over-function, making the process less financially accessible for clients.  Over-functioning is a particular occupational hazard for divorce lawyers who have a strong and/or longstanding divorce litigation practice in additional to their collaborative work.

On the other end of the spectrum, lawyers can under-function as well, although it happens less frequently than over-functioning.  When a lawyer under-functions, he or she typically operates based on the premise that because Collaborative Divorce is a settlement based, out of court process, that the law is irrelevant – that the parties can do whatever they choose to do.  For example, when a client asks for legal advice about a particular alimony option that is being discussed, an under- functioning lawyer might say something like “it’s up to you and your spouse” without advising the client about how the spousal support statute works or what case law suggests alimony might look like under the facts of the client’s case.

Under-functioning lawyers may have fallen into the trap of thinking that the Collaborative Divorce process is more important than their client’s needs.  The proverbial ball that an effective lawyer is always keeping his or her eye on is whether and to what degree a divorce process is meeting the client’s needs under all of the circumstances of the case.  If a particular settlement option cannot or should not work for a client, the lawyer needs to be sure he or she is advising the client about other ways to move through the divorce – including litigation.  The tail should not wag the dog.

On a different but related note, one of the reasons Collaborative Divorce does in fact work so well for so many clients is the way the process includes both neutral professionals (to help keep the case from feeling like an us versus them exercise) as well as non-neutral advocates for the parties.  Having solid (but flexible) legal advocates who are aligned with only one party, helps the parties feel grounded in the divorce by virtue of having a clear ally, without feeling polarized from their spouse.

In sum, the art of effective Collaborative Divorce advocacy involves a balancing act of helping clients get to a “mutually acceptable durable agreement” that is informed by solid legal advice, the clients’ financial realities, as well the parties’ personalities and interpersonal history.

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