Jillian S. Morris is Principal at Markham Law Firm in Bethesda, Maryland. Ms. Morris has exclusively practiced family law in private practice since 2011 and with Markham Law Firm since…
When Divorce Is Collaborative Instead of Combative
As a longtime family law attorney and mediator in Washington, D.C., I recently met with a very unhappy couple who was looking for legal help to sort out their affairs as they struggled through the painful decision to separate and divorce.
Speaking of affairs, the marriage had ended in an instant. In a "snap," as Martha might say in Who's Afraid of Virginia Woolf, Edward Albee's bitterly painful peak into one married couple's particularly painful dysfunction.
The husband who sat in my office had a one-night tryst with another woman while away on business. The wife, following a suspicion, snuck a peak at his blackberry and confronted her husband. The husband admitted the adultery. The wife felt her world go black. It was as if everything she had known, everything that she relied on - for better or for worse - was gone, in a snap.
The wife, feeling hurt and betrayed certainly, and also feeling humiliated beyond words, kicked her husband out of the house immediately. The husband, hating himself for his selfishness and stupidity and barely able to stand the pain he inflicted on his wife, complied. Before he knew it, he found himself sitting alone in a rented apartment, with the family's old couch and TV, and the couple's bed (as the wife no longer wanted it in the home). Life as he knew it was over, in a snap.
After 15 years and three children, the couple was now trying to disentangle their very-intertwined day-to-day lives while simultaneously navigating the emotional tidal waves that accompany divorce. They had some urgent questions:
• Could they afford the housing and living expenses of both the family home and the husband's new apartment? • What about the children, what about custody?
• Was it OK for the children to sleep at the husband's new apartment?
• How would the children cope with becoming children of divorce?
• Should she hire a shark and seek a pound of flesh? Her friends were telling her to make him pay for his infidelity.
• Should he hire a shark to make sure that his guilt did not convince him to agree to a settlement that he could not afford?
As I watched the couple whirl through their questions reflecting all of their hurts, their fears, their uncertainties, I was struck by the very sad truth that at the end of the day, at the bottom of all that hurt and betrayal and distrust, both the husband and the wife really just wanted their old life back.
I do not know how any couple overcomes the breach of adultery. I especially did not know if this couple had whatever it takes to make such reconciliation possible. But I knew that this husband and this wife, notwithstanding the hostility and anger they felt at the moment, otherwise were decent, caring, honest people who were slogging their way through the worst patch of their lives.
If they could not save their marriage, they deserved to find a way to move beyond the anger and the hurt to a place where they could treat each other (and be treated by the other) with civility and respect, and where they could find some peace in their new lives and new identities as ex-spouses and co-parents.
So, is there a better way? Is there a way to divorce that not only promises, but delivers more civility and respect? And if so, what are the costs? Is it safe for the wife to trust her cheating husband to behave honorably in divorce negotiations? Can the husband engage in voluntary settlement negotiations with his guilty conscience without getting taken to the cleaners? Is it possible to negotiate the dissolution of the marriage without magnifying the most damaging and destructive aspects of the couple's dynamic? Is it realistic, given the anger and hostility between the husband wife now, to expect them to treat each other with civility and respect?
Collaborative divorce is an alternative approach to the traditional combative divorce. Collaborative divorce engages divorcing couples outside of the courtroom in an open, supportive, lower-conflict environment. Collaborative divorce focuses on helping couples find shared solutions - solutions that take into account what is important and acceptable to the wife AND what is important and acceptable to the husband. In the Collaborative Process, the husband and wife each have the support of their own lawyer in the room. Collaborative lawyers help the couple identify what is most important to them and then help them advocate for those goals with civility and respect.
In the Collaborative process, the couple also has the option to call on trained Financial Professionals to help both the parties collect, organize and understand their financial circumstances. In this way, the wife can rely on facts and full understanding of her actual budget when evaluating decisions about alimony and child support. And both parties can assess whether a particular settlement is affordable before agreeing to its terms.
The couple may also call upon mental health professionals who serve as Divorce Coacheswho help the parties keep their settlement discussions safe and productive and also help the parties manage the emotions that accompany divorce negotiations. Divorce Coaches may help the wife understand how better managing her own anger in settlement meetings will help the meeting proceed (and thus end) more quickly. And the husband may learn how to speak up about what is important to him, notwithstanding how guilty he feels about his contribution to the breakdown in the marriage.
Mental health professionals also may serve as Child Specialists, who provide special insight and information about the needs and concerns of the parties' children. Child Specialists may help the wife remember that notwithstanding how her husband betrayed her, the children still love and respect him as their dad and that the children have much to gain, and the wife has nothing to lose by allowing the children to feel free to love both parents unconditionally.
Collaborative divorce focuses on helping the divorcing couple and their family move beyond the divorce and forward with their lives. In this way, getting through divorce can be a little less painful. My secret hope for this couple is that with the support of a Collaborative team, the husband might find the safety to tell his wife that in losing her he has already lost what mattered most to him in the world and that he is devastated because all the money in the world cannot buy that back. And that the wife might then find the nerve to admit that she does not know how to forgive him and maintain her dignity as a woman and as his wife. And that together, they might find the courage to explore whether they have what it takes to repair their marriage.
But even if they do not, I am confident that the Collaborative Process will give them the best possible opportunity to move through the divorce negotiations with grace, support and respect so that one day they will be able to fathom their future as ex-spouses and co-parents feeling a little more calm and settled about their past, feeling proud of how they handled this horrible moment in their lives, and in the end, feeling a little more hopeful about their future.
Barbara A. Burr, JD, is a lawyer specializing in family matters who represents parties in Collaborative Divorce, traditional round-table negotiation, mediation and litigation. Barbara helped found the DC Academy of Collaborative Professionals, she is a member of the Collaborative Dispute Resolution Professionals, in Montgomery County, Maryland, and she teaches courses on Collaborative Practice through Collaborative Practice Training Institute (CPTI).