Collaborative Divorce: What the Parties say
In my last post, I described my excitement when a couple completed their first collaborative divorce in West Virginia. I have been a member of Collaborative Practice Groups in other jurisdictions, but this was a first for West Virginia. I explained the benefits, from my perspective as a collaboratively trained attorney. After the hearing, we had a chance to sit down with the parties and talk a little bit about their experience with collaborative divorce. In order to protect their privacy, I have changed their names to Oliver and Barbara (as a nod to the film The War of the Roses), but their sentiments and quotes are authentic! The photos attached to this post are also not the actual parties, but stock photos that reminded me of this couple.
Barbara and Oliver have been married for many years. He is retired, and she is approaching retirement. They have two grown children and are both well-educated professionals. Both parties had an idea of how they wanted to divide their assets but weren’t entirely sure how it would be pulled together in a way that would acceptable to the court. Despite the marriage being a lengthy one, both parties had separate property and property that could be arguably classified as marital since they acquired some property as an inheritance and gifts.
Collaborative divorce allows the parties to hear advice from both attorneys concurrently.
They both reported that they knew who the aggressive attorneys were and Barbara made an appointment and consulted with one of the “bulldogs” while they were investigating their options. She reported to us during the post-hearing meeting that she expected that with that path, “it wasn’t going to go well.” She also suspected that the more litigious route would be more expensive. To my surprise, Barbara reported that the “bulldog” attorney did not know about collaborative law. That attorney also advised Barbara not to participate in mediation.
In the collaborative divorce process, participants establish priorities and create proposals at meetings with both parties present with their attorneys. Attorneys refrain from offering advice privately. The parties may have had some reservations prior to the first meeting, but he reported later that he was pleasantly surprised at the first meeting by the friendly, but candor atmosphere. Both Oliver and Barbara explained that they liked participating in collaborative sessions with both attorneys. Barbara said that she appreciated knowing “what his attorney was saying.”Oliver reported that the two attorney approach advantageously provided him with two separate legal opinions.
The joint meetings and shared opinions did not change the way the parties felt about their lawyer being loyal to them and working to promote their individual, as well as mutual interests. Oliver expressed his observation, “I felt like my lawyer was still on my side." Barbara looked at her attorney and said, "I felt you were watching out for my interest."
Collaborative divorce may provide a healthier way to reform a family when the parents no longer desire to be married.
When I attended my first collaborative law training nearly five years ago, one of the differences between collaborative law and a conventional practice gave me, and every other attorney in the room for the training heartburn, “the withdrawal clause.” This clause is a provision in the collaborative agreement that requires that both attorneys withdraw if they are unable to reach an agreement and either party decides to file court proceedings. Recall that a central tenant of collaborative divorce is that the parties are agreeing to decide on their own, without judicial intervention.
Additionally, collaborative law requires that the parties agree, up front, to be transparent and share information. The withdrawal clause ensures participants that they can trust one another and be open during meetings without being concerned that one attorney may cross-examine a participant on that very issue in the future. While this gives attorneys heartburn, the parties seemed confused when we asked them if it was an issue for them. Barbara said that it didn’t scare her. They both felt confident in their abilities to reach an agreement and understood the necessity of substituting counsel if they were unable to do so.
Another unusual aspect of collaborative divorce is that the law is a consideration in making decisions. In other words, a legal right might be thought of as a guidepost, rather than polar star in evaluating options to divide property. In Oliver and Barbara’s situation, both parties waived rights that they may have to property that could have been construed as marital property. During our meeting, Oliver expressed that he was fully informed of his rights to all property, and made decisions based on the evaluation by his attorney.
Barbara also expressed satisfaction with the transparency required by the collaborative process. In West Virginia, the parties are required to make a full, open financial disclosure at the time a divorce is filed. However, she liked the open transparency on financial and all issues as they came up. She reported that full disclosure, having “…everything in the open felt healthy.”
At the end of our discussion, we asked them for their closing thoughts about using collaborative divorce and Barbara, who tends to be pragmatic anyway seemed to think that the process just made sense. She said, “We had a problem we wanted to be solved. This seemed like the normal thing.” Oliver was satisfied enough with the process that we heard a full endorsement. He said, “I’m telling my friends.”