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COLLABORATIVE DIVORCE

You have come to the realization that your marriage is over. Whatever the causes, there is no chance of a reconciliation. You are both suffering in the relationship, and need the pain to stop. It’s been the hardest decision you ever had to make.

You have heard about mediation, where the two of you sit down with a neutral mediator and negotiate a dignified resolution of your financial and other issues. (You can read my article on mediation by clicking the appropriate link on the Home Page.) But the very fact that the mediator is impartial troubles you. You need someone in your corner during those negotiations, to assist you with the decisions you have to make. Perhaps you and your spouse have difficulty trusting each other. Maybe your spouse has a better understanding of your financial circumstances than you have. Possibly, your spouse has a strong personality and you are afraid your voice will not be heard. You need a level playing field and having a trained collaborative lawyer of your own at accomplish that. every meeting will

But you emphatically do not want an expensive bloodbath. You have heard enough horror stories from friends and family about the litigated divorces that cost a fortune and never end. About divorce lawyers who promise to take your spouse to the cleaners, while getting you the settlement of your dreams. About divorce lawyers who proclaim that they will protect you from the other lawyer, who, of course, is promising to do exactly the same for his client – your spouse.

You’ve heard about long, expensive hours spent in court waiting to be heard by a judge, who is a stranger to you and your problems. You may have heard heart rending accounts from friends who have suffered the indignity of public court hearings. Those hearings that expose the most intimate aspects of your married life to any stranger who happens to be seated in the courtroom. And those horror stories also tell a tale of bitterness, hatred, rage and depression that are too often the result of the mutual demonization that’s encouraged by the litigation itself.

You would like the best possible settlement, one that is fair to both of you, and, if you have children, to them as well. Maybe you’d just like to remain friends and preserve whatever was good in your relationship. Or to just say goodbye without bitterness. And, if there are children, you also want to be loving parents to them long after the two of you part. You want to look forward to a future in which you can realize your long-postponed hopes and dreams. And you definitely don’t want to spend a fortune slugging it out in court.

In short, you want a “good divorce.”

Having a good divorce while reaching those goals often involves learning new ways of communicating with each other, ways that reduce hostility and encourage cooperation. The process will show you how to avoid “pushing each other’s buttons.” It will also give collaborativeyou the tools to respond positively, even empathetically, when it’s your buttons that are being pushed. By modeling the behavior you want from your spouse, you will inspire the same kind of response from your spouse. That’s when respectful, productive conversation becomes possible. That is a skill known as “non-defensive communication,” and is the key to successful negotiation. It’s a skill that you will have for a lifetime.

COLLABORATIVE DIVORCE is designed to help you achieve your goals. The only purpose of Collaborative Divorce is to reach an agreement that you and your spouse believe is the best one possible under all the circumstances That’s why the relationship between the clients and their lawyers is known as a limited scope representation, or “LSR.” As you will read later in greater detail, going to court is not an option. Everything is done in private at the negotiating table. The most important thing for you to remember about collaboration is that you and your spouse will have ownership of the decision-making process. Here’s how it works:

You and your spouse will have specially trained and experienced collaborative lawyers at your side at all times. Each of you will have the comfort of being able to confide in your lawyers as you would in a “traditional” litigated divorce. But instead of facing off at one another, the four-of-us will work together to resolve the issues that divide you. You will each have uninterrupted time to say whatever is on your mind. We will meet in an emotionally safe environment where you will not be judged on anything you say.

An important part of problem-solving will be for you and your spouse to identify the interests and the goals you want to achieve after the divorce. These can be individual interests and goals, such as career changes or advancement; professional or vocational training; other educational objectives; personal improvement; preserving relationships with your spouse’s family and with mutual friends; new social interests; travel and other recreational activities, and so on.

Those interests and goals can also be shared ones, such as to continue to effectively co-parent your children; to remain on cordial personal terms with each other; to continue certain joint activities, such as religious or club affiliation or events; to preserve relationships with your extended families; to retain joint business arrangements, even to the sharing of beloved pets and so on.

Those interests and goals will be the focal point of all our negotiations. As we discuss various settlement ideas, you will ask yourselves how a particular settlement idea will help you attain your goals. If the ideas fall short, we will all work to improve them so that they work for both of you.

After identifying your interests, needs and goals, we will all work together to evaluate your financial situation. You will be asked to bring in a number of documents, such as tax returns, pay stubs, retirement account statements, property deeds, etc. You will also gather information about your bank accounts, investments, credit card debts, and other aspects of your lives that will play an important part in achieving a fair settlement. You and I can also meet privately during this fact-gathering phase to confidentially discuss any concerns you may have.

Once we know all the relevant facts, we will take a realistic look at the financial pie, and you and your spouse will start the important work of negotiating a fair division of your assets and debts. As your lawyer, I will help you understand the legal and practical implications of your, and your spouse’s settlement proposals. And since we will meet mostly in 4-way sessions, both lawyers will contribute to this understanding. Later on, I’ll tell you more about the unique way collaborative lawyers work to help both clients achieve their goals

Our aim is to have you both leave the marriage in as good financial shape as possible. We will devise creative solutions in order to reach that goal. We will begin by creating options that address the issues. That process is also called brainstorming. Put simply, you will each toss out ideas for discussion. Although your lawyers will take part in this phase, you and your spouse will take the lead. That’s another way of putting your imprint on the process and claiming ownership.

At this stage, no criticism or comments are made. No judgments are rendered. Remember, you’re always in a safe environment. The wonderful thing about non-judgmental brainstorming is that out of the many ideas you ultimately reject, you will invariably find a few that are gems. When you do, it’s like finding the rare pearl hidden in one of a thousand oysters. And then you’re on your way to an agreement that will last.

Later, after all the options have been created, we will start discussing and refining them. One of the important questions we will ask is, “Do we have enough information to make a decision?” If not, what more do we need, and where do we get it? That’s how creative negotiations begin.

When you brainstorm and you hear an idea you don’t think will work, suggest a way to improve it or offer a different idea. That’s a positive way of moving off the dime, and much more conducive to a win-win outcome than just rejecting it.

Both lawyers will listen carefully to each of you with open minds. We will also help you learn how to listen – really listen – to what the other spouse is saying, so that you both can concentrate on solving your problems, not on finding fault with each other’s solutions.

If communications are difficult between you, we will teach you techniques to overcome that barrier, so that long after the collaboration and the divorce is over, you will both have the tools to avoid needless future confrontation.

One of the most important differences between the collaborative method and litigation is that your collaborative lawyers are trained to cooperate in getting you to a fair resolution. Rather than working to undermine the other side, both lawyers work together to make the joint venture a success. As difficult as it may be to understand, be assured that your spouse’s counsel is just as concerned for your welfare as your lawyer is for your spouse’s. We believe that collaboration works best when each of you cares about the other’s outcome. When either of you speaks, both lawyers will be listening with respect. And when they respond it will be with both empathy and honesty. You will be free to express your deepest hopes and fears, without worrying that your words will be used against you. As I mentioned above, you will be in an emotionally safe environment, where you need never fear an ambush. In the collaborative method there are no gotchas.

Does that sound too good to be true? It isn’t. That’s how collaborative is supposed to work. And the reason it does work is that many, if not most, of the lawyers who now practice collaborative law were once litigators themselves. They know first hand the corrosive nature of family law litigation. I’d like to tell you a personal story of my last litigated case. It involved having to remove 3-young children from their father’s custody.* I was deeply troubled by what the law required of me. But since this was litigation, my duty to my client left me no alternative. Of course, the children were the big losers, just pawns to be moved like chess pieces in a war between their parents. I deeply regret that the collaborative method was not available to me when that case advanced through the court system. So much unnecessary pain and expense could have been avoided. It is those experiences that has convinced a growing number of family lawyers to forsake the war model of litigation and embrace the life-affirming collaborative method. (*I have changed the circumstances of the case to protect the privacy of the people involved.)

One of the defining aspects of the collaborative method is that we never go to court. We will all sign an agreement that pledges us to open and honest problem-solving, without resorting to court. We believe the best solutions can only come from the people involved, not from strangers, even if they’re called judges. As well-meaning as they may be, they neither know you nor your circumstances. Asking a judge to make decisions that will affect you and your family, possibly for many years, deprives you of the right to control your life. At the very moment you need to feel empowered, you are asked to surrender that control. Giving the ownership of your divorce to anyone – be it a lawyer or a judge – removes you and your spouse from a central role in the most important drama of your lives.

In order to make it possible for the lawyers to cooperate in bringing the process to a successful conclusion, we will ask both of you to waive just enough of the attorney-client privilege to allow this to happen. The attorney-client privilege encourages you to be completely truthful with your lawyer, so that the legal advice you are given will best suit your needs. During litigation, it is essential to keep the full privilege intact since each side is always seeking to gain advantage over the other. In collaboration, however, the sole goal is to arrive at an agreement. There’s no other option. We don’t go to court, so there can’t be a trial, and absolute secrecy is not essential. In fact, preventing the lawyers from discussing certain facts, thoughts and concepts can hinder the very purpose collaborative law was designed for.

To emphasize the importance of keeping control of your divorce, you and your spouse willingly agree that should either of you decide to litigate, both collaborative lawyers will be disqualified from any further representation. That’s a powerful incentive to honor the commitment to face and resolve the important issues that divide you, with open and respectful negotiations.

Most of our meetings, as I mentioned above, will be in 4-way collaborative sessions in which all of our energies will be devoted to getting to yes. (We will also meet separately when necessary.) That is because Collaborative Divorce is forward looking. While it honors the past – both the good and the hurtful – its major goal is to make the future as promising as possible. And your collaborative lawyers will be your trusted tour guides on this crucial journey to the next stage of your lives.

You will have the option of tapping into a circle of help during your collaboration. The circle consists of trained collaborative divorce specialists in the areas of finance, children, and client communications. The Financial Specialist can help, for example, with the valuation of your retirement accounts, and the most tax effective way to divide them. Child Specialists are mental health professionals whose job it is to help you with the delicate tasks of telling the children about the divorce, explaining the changes that it will bring to their lives, and providing the emotional support they will need to successfully make the transition to a restructured family system. Divorce Coaches can offer valuable insights when emotional difficulties prevent either or both of you from performing at your best during the collaborative sessions. They can help when problems with communication are impeding your progress. We will discuss these options and you can choose whether to use them or not.

If you have children under 18, we will work on a Parenting Plan. We will brainstorm ideas to make the best plan possible for you and your kids. The plan will specify how much parenting time each of you will spend with your kids. It makes no difference if they will be living primarily with mom or dad. Connecticut requires both parents to be a part of that plan.

The Parenting Plan will also go into detail about the rights and responsibilities you have concerning education, health insurance, medical decisions and other major areas of your children’s lives. More brainstorming – more tossing ideas onto the table without criticizing them or making judgments. Two of the most important areas we will discuss during your collaborative sessions are when and how to introduce a significant other to the children; and how to handle a permanent change of address, also known as relocation.

If you have children who have graduated from high school but are under 23, we will talk about post high school education. Connecticut courts can make orders for education expenses for such children.

If we reach an impasse during the negotiations, the lawyers will suggest various ways of breaking free of it, such as meeting with each of you separately, and using some advanced techniques.

When you have agreed on all the aspects of the divorce, the lawyers will draft a Divorce Agreement, also called a Separation Agreement.

We will discuss serving and filing your divorce papers. You will decide the best time to start the case. The lawyers will draft the papers, explain them to you, and arrange to have them served on whichever of you is the defendant. You will proceed as self-represented parties until the day of your divorce hearing. At that time, your lawyers will file their appearances in order to be able to lead you through the hearing. You will be thoroughly prepared!

Everything that happens during the collaborative process will be voluntary. Each of you will have an absolute veto over the proceedings. Nothing will be coerced. No settlement terms will be imposed. Part of our work will be to help you and your spouse get to yes by narrowing the differences between you, in order to reach a principled agreement. And everything we do or say will be with care and concern for the happiness of everyone affected by this life-changing passage: husband, wife and children. At this early stage of your collaboration, care and concern may be concepts that are hard to envision. But since collaboration is a respectful method of resolving problems, the process itself will help bring out the best in both of you. You might be surprised how powerful a generous heart can be in achieving a generous settlement. And the problem-solving skills you learn in your collaborative sessions can last a lifetime.

As you know, we have pledged to resolve all problems that surface during the negotiations without court intervention. It makes good sense that the people who know the issues best should be the ones to address them. So, rather than asking a judge, who knows nothing about your circumstances, and even less about your concerns, your hopes and vision for the future, to solve your problem, we will do the heavy lifting together.

Finally, you will go to court once and only once – on the day of your divorce hearing.

Before committing to a collaborative divorce, you should ask these two questions:
1) How long will it take?, and 2) How much will it cost? The two questions are linked. The answer to the first question is that your collaboration will last only as long as it takes you and your spouse to reach agreement on all the issues you need resolved, and not a minute longer. The attorneys will go at your pace. The more you are in agreement, the shorter the process. Obviously, the answer to the second question is: the shorter the process, the lower the cost. I’ll be happy to continue this discussion with you. Just give me a call at 203-372-9055 or send me an e-mail at brielaw@snet.net. Thanks for spending the time with me today.

Sincerely,

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Harold Brienes