Collaborative Case Study

By Vivian Blanc, M.S., L.P.C. , Wormleysburg

During my 20 years as a marriage and family therapist, I have seen the good, the bad and the downright ugly when it comes to divorce. But one case sticks out in my mind as providing a good lesson for both the divorcing couple and the Collaborative attorneys who were handling their case about the need to step back and see the big picture.

This case involved a couple who had been married for about 18 years. They had three children and they were very well established in their community. They were two highly intelligent, successful people and they did not want their divorce to go to litigation.

Although they were seeking a Collaborative divorce, things had become quite contentious. It was clear that the husband felt his wife was not fully admitting her reason for wanting a divorce, which he suspected included infidelity on her part.

As the process became increasingly difficult, I met with the couple in my office, apart from their attorneys. It took some coaching, but I was able to move them to the point that he was able to admit that all he really wanted from her was an honest statement. Once the wife found the courage to be totally honest with her husband, they were able to move forward. It was as if once the truth was on the table, he could say, “We don’t have to hate each other because you are not playing me for a fool.”

But there was still another stumbling block that needed to be addressed. The Collaborative process encourages creativity, so the attorneys kept proposing solutions that didn’t necessarily fit the norm. These were two of the best attorneys I have ever worked with, but I had to point out to them that the husband was a black-and-white thinker. He didn’t want something that had never been done before. He needed to know that he was getting exactly what everyone else in Pennsylvania gets in a divorce. Once the attorneys realized that, they shifted their focus to more traditional, standard formulas for the settlement and the divorce was finalized to the satisfaction of both parties.

This case really demonstrates how important the role of the coach is in the Collaborative process.  We can analyze the dynamics of what is at work and help take the necessary steps to move things forward.

Time Well Spent | A Collaborative Case Study

By Dawn S. Sunday, Esq. (Mechanicsburg) and Ann Levin, Esq. McNees, Wallace and Nurick, LLC (Harrisburg)

As any experienced divorce attorney will tell you, in the majority of all divorce cases at least one of the partners has been thinking about ending the marriage for some time, even if their spouse had no inkling of their feelings.

We recently represented the opposite sides of a divorce in which the husband did not anticipate his wife’s desire to end their marriage. The news left him in a state of shock. After his very lengthy marriage, he seemed to lack his own identity and sense of self. He was in a very fragile emotional state. We agreed that although he was willing to consider the Collaborative process, he could not fully participate until he sought some professional counseling.

The wife, despite initiating the divorce, also recognized that her husband would need some time to find his own voice. She didn’t want to do anything to jeopardize the long-standing relationships with family and friends that had developed over the course of their marriage.

Given the benefit of both time and professional help, several weeks later the husband was in a much better position to be an active participant in the Collaborative process. He used his professional knowledge to develop financial reports that enabled both he and his wife to see what they had and what they could share between them. Our Collaborative Coach was a crucial player in this case, as well, since she was able to help the couple focus on moving forward and on what they wanted to accomplish.

In the end, the couple was able to end their marriage with each party coming out whole instead of in pieces, which we both agree—based on the state the husband was in at the beginning—would not have happened in a traditional litigated divorce. We don’t know how he could have attended to the emotional piece he needed. The Collaborative process gave him the time and resources he required.

Both parties have been in touch with us since the divorce was finalized to let us know that they are happily moving forward with their lives, indicating a sense of closure of one chapter and the beginning of another.

Proposed Collaborative Law Act Moves Forward

By Debra Denison Cantor, Family and Collaborative Law Attorney
McNees, Wallace and Nurick, LLC (Harrisburg)

The Collaborative Law committee of the Pennsylvania Bar Association (PBA) recently forwarded to the Family Law Council a draft resolution calling for support for the enactment of a Pennsylvania Collaborative Law Act. The resolution passed unanimously without discussion and will now be forwarded to other PBA groups to gain additional support. The resolution will be presented to the PBA’s Board of Delegates later this year for overall PBA support.

With this movement, it appears the tide has turned with regard to Collaborative practice. It used to be that we spent our time touting the merits and process of Collaborative Law, but because the practice area continues to grow and our neighboring states of New Jersey, Maryland and Ohio have enacted the Uniform Collaborative Law Act (UCLA), there is realization that we need to foster Collaborative law as a viable option for many Pennsylvanians.

It is estimated that there are 300 licensed Collaboratively-trained attorneys in Pennsylvania and eight practice groups across the state dedicated to Collaborative Law, including Collaborative Professionals of Central PA, which was the first such practice group organized in the Commonwealth.

Although 10 states have now adopted the UCLA and five more are considering it, the Pennsylvania CLA is not a carbon-copy of other states’ legislation. Some states have limited their legislation to family law matters and some have not. The PCLA covers disputes between family members, which is broader than disputes on family law matters.

Despite some minor modifications in each state’s legislation, one of the primary benefits of adopting a CLA would be to give attorneys in Pennsylvania who practice Collaborative Law the opportunity to provide their clients with the best possible outcome from their Collaborative divorces through more consistency in enforceability of Collaborative law participation agreements from state-to-state.

If you’d like to know more about the status of the CLA or get involved in efforts to further its advancement to the PBA Board of Delegates, please contact Zanita Zacks-Gabriel the Chair of the Collaborative Law Committee of the PBA.  

Fact or Fiction? The Greatest Myths Regarding Collaborative Practice

Authors: Tim Colgan, Maryann Murphy, Dawn Sunday

A lot of people (including some attorneys) think they know everything there is to know about Collaborative practice. Here’s a look at some of the more frequent inaccuracies surrounding Collaborative divorce — and facts that will dispel them.

1. Both parties want the dissolution of the marriage. As is often the case in traditional divorces, Collaborative divorces are often unilateral: only one partner wants the marriage to end.

2. The parties have to agree on things before the process begins. The only thing the parties have to agree upon is to participate in the Collaborative process and to abide by the rules set forth in the Collaborative Participation Agreement.

3. The parties have to trust each other and get along. Many of the raw emotions that play out in traditional divorces – pain, fear, distrust, anger – are present in Collaborative divorces. The difference is a willingness by the participants to work with the Collaborative team to overcome those emotions to reach a settlement that reflects the needs and interests of both parties.

4. All divorces are Collaborative. The term Collaborative, when used with an upper case “C,” refers to a specific type of a divorce. It means that the attorneys involved in the case have been specifically trained in the Collaborative process (as outlined by the International Academy of Collaborative Professionals). An agreement that is reached through the Collaborative process is achieved differently from a negotiated settlement in a non-Collaborative case. In a traditional divorce settlement, the court has the final say. In a Collaborative divorce, the two parties determine what the final outcome will be.

5. Any attorney can do a Collaborative divorce. Collaborative attorneys have at least 12 hours of formal training in the principles and techniques of the Collaborative divorce process, a process which is built around four-steps: information gathering; evaluating needs, goals and interests of each party; brainstorming options for resolution; and achieving resolution. Within each of these four steps, however, the parties are afforded opportunities for creativity and fluidity that are not present in traditional litigation. Collaborative attorneys also have a minimum of 24 hours of mediation training.

6. Collaborative divorce is more expensive than a traditional divorce. It is true that a Collaborative divorce may involve several players, including Collaborative attorneys, a Collaborative coach, and perhaps financial experts and others, as dictated by the specifics of the case. But unlike traditional divorces, which can drag on for years, most Collaborative divorces happen in a condensed period of time, especially since both parties agree at the outset to reach a settlement outside of the courts. Furthermore, given that nearly 95 percent of all traditional divorces end in a negotiated settlement, the parties in traditional divorces often end up paying for a great deal of preparation for a trial that usually never occurs. Many Collaborative lawyers report that the total cost of a Collaborative divorce is often lower than that of a divorce processed through the adversarial process.

7. There is less assurance that documentation/information will be disclosed than in a litigated divorce. Both parties sign a contract at the beginning of the Collaborative process that states they agree to negotiate in good faith and to disclose all pertinent information. If one side expresses a reluctance to be forthcoming with necessary information, they are reminded that their actions (or inaction) may bring an end to the Collaborative process. If that happens, their opportunity for settlement outside of the courts is jeopardized.

8. Collaborative divorce is a fad. What began with one attorney in Minneapolis nearly 25 years ago has grown into an internationally recognized process that now includes thousands of practitioners from 24 countries around the world. In the U.S., nine states have adopted the Uniform Collaborative Law Act and another six have introduced the legislation.

Expanding the Pie So There’s More for Both

I didn’t need to sell my client, “Laura,” on the benefits of the Collaborative approach to divorce. A brief explanation of the process and how it could benefit Laura and her soon-to-be ex-husband, “Ken,” was all it took. So I sent a letter to Ken explaining the Collaborative process and included with it a brochure that explained Collaborative law in greater detail as well as a list of Collaborative attorneys with whom he could consult to determine if the process would work for him.  (I have changed the clients’ real names to protect their privacy.)

I advise my clients to never try to sell the Collaborative process to a soon-to-be ex-spouse themselves, since the inherent emotions, anxieties, suspicions and fears that come with divorce may cause the effort to backfire. But when my requests to Ken to investigate the Collaborative approach failed, I was forced to file a formal complaint in court for a traditional divorce, meaning Ken was served with divorce papers. At that point, he decided to investigate the Collaborative approach and eventually obtained his own Collaborative attorney. In Pennsylvania, you can convert a traditional divorce proceeding to the Collaborative approach without any court procedures.

Laura and Ken each prepared their own needs analysis at the beginning of the process to outline what they wanted to achieve at the end of their Collaborative divorce. The private, negotiated settlement they hoped for would be customized to their needs and desires without putting the decisions into the hands of the court. It would still be hard to acknowledge the end of their marriage, but they hoped to lessen the pain by working together to reach a fair settlement. Even in Collaborative divorces, there are still conflicts, still emotions. But the goal is to manage those so we don’t all end up with a nasty hangover.

In Laura and Ken’s case, one of the needs and interests Ken identified was his desire to retire early to pursue his lifelong hobbies. Ken’s dad died soon after retirement and was never able to enjoy the hard earned (and saved) fruits of his labor. It was a fate Ken hoped to avoid but with divorce pending, he feared his assets would be diluted, making early retirement impossible.

Ken worked for a large, national company that I knew, based on previous experience, had a defined benefit pension plan. Ken was forthright in disclosing his 401K plan and stock options but did not think he had a defined benefit pension. I respectfully asked Ken to call his HR department to inquire and sure enough, he had one.

By being willing to make the call, Ken was able to “expand the pie” for both himself and Laura by identifying additional assets that would be available to both of them in retirement. When he made that call and learned about that pension plan he didn’t know existed, there was a tonal shift in the room, as Ken realized that his divorce would not derail his dreams of early retirement. It’s an example of why I say it is a privilege to serve people through Collaborative practice. I think we all leave with a sense that we did it, and we did it with grace.

An Alternative to Court-Based Divorce

     Would you like to handle your divorce privately? Would you like to make the decisions about your family and how it’s going to change instead of having a court make those decisions for you? Would you like to maintain a working relationship with your spouse after your divorce? Would you like to serve as a role model for your children to show them how to resolve conflict respectfully and effectively?

     Collaborative family law is an alternative to litigated (court-based) and often contentious disagreements surrounding family-related issues.  The basic idea of collaborative law is for you, your spouse and your specially trained attorneys to work together to engage in non-confrontational sessions to discuss the issues and goals of the involved individuals.  The issues may include, but are not limited to divorce, support of a spouse or children, how to divide the marital assets and establishing co-parenting plans.

     The attorneys and spouses are a team focused on one goal – a negotiated resolution that both spouses can support.  You may decide to include other professionals in this team, such as a divorce coach to help everyone communicate more effectively so the process moves more smoothly.  Depending on the complexity of your financial situation, you may decide to include a neutral financial professional to focus on the “numbers” part of the divorce.  Although the attorneys are part of the collaborative team, it’s important to realize that each attorney is representing only his or her own client.

     The spouses and their collaborative team participate in a series of meetings, with advance preparation and clear agendas, to make decisions.  These meetings are designed to be informal and are generally held in the attorneys’’ offices.  For each meeting, one of the attorneys will take notes to prepare and distribute written minutes after the meeting.  The spouses and their collaborative team will generally have “homework” to complete after each meeting, to prepare for the next meeting.

     All participants in the collaborative process commit to full disclosure of relevant information without the need for formal requests for information.  This allows both spouses to make informed decisions, working with the same information, without the time and expense associated with formal written discovery requests exchanged between the parties and their attorneys.  The professionals involved also commit to engaging only in the collaborative process.  If the spouses are unable to reach an agreement in the collaborative process and decide to pursue court action instead, none of the professionals involved in the collaborative process will be involved in the court process.

     When spouses reach an agreement in the collaborative process, they sign a written contract that is enforceable and binding on both of them, with no court involvement.  If you are considering a divorce or involved in divorce proceedings, you may learn more about the collaborative process at www.collaborativelawpa.com and www.collaborativepractice.com or by contacting any member of the Collaborative Professionals of Central Pennsylvania.

How are Complex Financial Issues Dealt With in a Collaborative Divorce?

 It is not uncommon in any divorce situation that difficult and complex financial issues arise. The couple may own a business or one spouse may have a professional practice, with several partners. One spouse may be a high income professional and the other a modest wage earner or stay-at-home mother or father who has never had a career. They may own complex investment portfolios or participate in complex pension plans, 401(k) plans. They may own annuities or numerous rental properties.

In a conventional, adversarial divorce, especially if the divorce is hotly contested or the parties or their attorneys have not attempted or are not interested in reaching a negotiated settlement at the early stages of the proceeding, each side will often retain the services of various experts or advisors, such as appraisers, accountants, business valuation specialists and the like with the aim of possibly using such professionals as expert witnesses at the time of trial. In the Collaborative process, the parties jointly retain any expert professional advisors that may be needed or desired.

These professionals act as neutral advisors whose job is to assist the parties and their attorneys in structuring a settlement that meets the underlying short and long-term needs of both parties. Thus, if the Collaborative case involves the valuation of a business or professional practice, the parties may choose to hire a specialist, such as a CPA, to recommend how to best divide up or sell the business or simply value the business as part of the marital “pie.” In the Collaborative process, there is no “battle of the experts.”

The experts are neutral and work for the best interests of the couple and the Collaborative process. In cases where property or income issues are complex, these professionals are a key part of the interdisciplinary team of professionals, including the attorneys, who are there to help the parties make the best, most informed decisions in a dispassionate manner consistent with the goals of the Collaborative process. The participants – even the Collaborative attorneys – in the Collaborative process work as part of a team to empower the spouses or other parties to self-determine their settlement and meet the unique needs and address the particular concerns of both spouses.

The Divorce Coach as an Essential Part of the Collaborative Process

In nearly every divorce or custody case, no matter how “amicable” the parties seem, their deeply felt emotions a significant and often crucial role in preventing or inhibiting the parties from reaching a mutually acceptable, negotiated settlement in a dignified, efficient and cost effective manner. Divorce (including all issues related to the divorce itself) has long been recognized as one of the most severe emotional crises one may face in life, comparable even to the death of a spouse or child.

Divorcing spouses experience the full panoply of emotions – such as fear, anger, resentment, shame, sadness, guilt, depression and denial, to name a few – which emotions are brought into the divorce process, often unconsciously. As a result, these intense emotions and stressors frequently become one of, if not the main, impediment to the parties’ ability to reach a timely settlement agreement at all or attain an agreement that is mutually acceptable and fair. Emotional issues almost always drive up the cost of a divorce, often substantially, and cause the legal dispute to drag on unnecessarily for months and even years. For this reason, the Collaborative team includes a divorce “coach,” who acts as a “neutral” in the process, to help both parties learn to communicate respectfully, constructively, assertively (but not aggressively), and to recognize or be more aware of their “trigger points” and otherwise manage their emotions by becoming more conscious of the effect that their emotions may be having on the ongoing Collaborative process.

Although divorce coaches, because of their training and experience in therapeutic techniques, including mediation, are often drawn from the mental health profession, they do not and may not act as therapists during the Collaborative process, but more as facilitators. The experience of nearly all Collaborative lawyers is that the use of a skilled divorce coach (and sometimes a parenting or child specialist if needed)  in the early stages and often throughout the process actually significantly reduces the time required to negotiate the terms of a settlement – less time is wasted “spinning the wheels” and more on getting the hard work of negotiating done – and can substantially reduce the overall cost of the Collaborative process even taking into consideration the added cost (which is shared by both parties) of retaining the services of a coach.

The Essence of the Collaborative Law Process

The most distinguishing feature of a Collaborative divorce and of the Collaborative process, in general, is the strong intellectual, emotional and financial commitment by all participants, from the very start of the process, to attaining a mutually acceptable settlement of all disputed matters without going to court. That commitment is formalized at the very first meeting when the Collaborative parties and their respective Collaborative lawyers thoroughly review the terms of and the parties then enter into a formal Participation Agreement.

The Participation Agreement stipulates that the sole goal of all participants in the process is to reach or assist the parties in reaching a negotiated settlement, out of court – without even the threat of going to court – in an honest, dignified and respectful manner, based not on the threats or demands of the parties, but on the underlying legitimate needs, concerns, fears and goals of both parties. A key structural component of the Collaborative process is the so-called “disqualification” provision which says that if the Collaborative process terminates, for any reason, without the parties having reached a mutually acceptable agreement, their lawyers – as well as any other professionals who may have participated at some point in the process – may not continue to represent or assist the parties in court.

The disqualification provision creates a built-in financial, intellectual and emotional incentive for everyone to put the maximum effort into reaching the very best negotiated settlement agreement the parties are able to make. Every participant, including the parties’ Collaborative attorneys, has a stake in the outcome of the Collaborative process.

If a negotiated agreement is not attained for any reason, the Collaborative lawyers are literally out of a job. They are forbidden from representing their Collaborative clients in court. Likewise, if no settlement is reached, the parties, in most cases, will need to hire attorneys who, at least initially, are completely unfamiliar with their clients’ cases, to represent them in an often difficult, stressful, time-consuming and expensive adversarial process which is the hallmark of the conventional legal system.