Divorce Without the Bloodbath

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What if there was a kinder, gentler way to get a divorce – one less damaging to your children, less stressful for you and less expensive? It is called collaborative law, and some New York lawyers hope it will revolutionize the way couples divorce.

Collaborative law keeps a divorce out of court. Spouses and their lawyers agree at the start to settle the case without litigation or even the threat of it. Instead of polarizing the parties, it encourages them to work through their differences for a satisfactory resolution. While it does not take away the pain of a marriage ending, it minimizes the emotional and financial strain on the family and lets them retain control instead of handing over their fates to the unpredictable court system.

“People more and more are looking for alternatives so a divorce doesn’t have to become The War of the Roses, and collaborative law is a way to do that,” says Elayne E. Greenberg, a family practice lawyer in Great Neck, N.Y.

“The reality is, divorce is a part of life, and people are realizing that how you divorce helps define the next chapter of your life,” she adds. “So savvy people are more and more motivated to make sure they don’t have an adversarial divorce. They realize divorce doesn’t have to be an out-and-out bloodbath.”

Since 95 percent of all divorces end up settling, she says, it makes no sense for attorneys to concentrate on preparing for trial – filing and arguing motions before a judge, for example, in an effort to gain strategic advantage. This pretrial sparring often leaves the spouses even angrier than before the divorce was filed, which can have lasting negative results, particularly distressing when children are involved. “Collaborative lawyers are wiser, because they’re saying, ‘We are going to focus on having a quality settlement for you and your family,’” Greenberg says.

While collaborative divorce won’t succeed for every couple, Greenberg and others believe that within 10 years, it could be the dominant method for divorce. That is because clients – and many lawyers – are desperate for alternatives to court, where both sides often feel battered by the process and unhappy with the results. “If you put a case in an adversarial system where you fight, of course people will be demonized and bring out the worst in each other. There truly are no winners,” says Greenberg, a founding member of the Association of Family and Conciliation Courts.

Collaborative law was created over a decade ago by a Minnesota lawyer weary of the destructive nature of divorce litigation, and it has quietly but quickly spread throughout the country and overseas. But it was not until five years ago that New York lawyers began to try it. There are now about 75 lawyers in the New York Collaborative Law Group, based in Manhattan, as well as groups in Westchester County, Hudson/Orange County, Rochester and elsewhere. And it is gaining powerful supporters: New York’s Chief Judge Judith S. Kaye has created a Matrimonial Commission that is studying ways to improve the state’s divorce process including collaborative law.

The approach is simple. Each spouse hires a lawyer trained in collaborative law, and the couple and their lawyers sign a written agreement that they will not take the case to court. If they cannot negotiate a settlement and must litigate, the lawyers have to resign and the couple hires new lawyers to fight it out. All four parties are motivated to seek a fast and fair resolution because the lawyers have no financial incentive to drag the process out; indeed, it is in their interest to encourage their clients to work together. The secrecy and posturing fostered by an adversarial approach is replaced by cooperation and candor, supporters say. But collaborative law differs from mediation because both spouses have lawyers to advise them on their best interests and make sure they are not railroaded by the other side.

Because it is typically much faster than a traditional divorce, legal fees are lower. A collaborative divorce takes an average of four meetings between the spouses and their lawyers, says Adam J. Berner, president of the Family Divorce Mediation Counsel of Greater New York and an adjunct professor at Cardozo School of Law. But the timing is up to the couple. “One of benefits of collaborative law is that it’s based on the pace of parties and not court deadlines or attorneys who are pressuring to move it forward. It’s in sync with needs of parties, so they’re in control,” he says.

“It’s a real paradigm shift,” adds Greenberg.

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Elaine McArdle is a freelance writer based in Massachusetts.

Divorce Without the Bloodbath