The term "collaborative divorce" is starting to become familiar to divorce lawyers and other members of the Connecticut bar. Professional articles have provided detailed descriptions of the process and explored the ethical and malpractice considerations. But few of us know what a collaborative divorce feels like to the client experiencing the process. Take Ted for instance. (Ted is not an actual client but a composite of many of the approximately 100 collaborative divorce clients I have represented.)
Leaving the courthouse after the final uncontested hearing, Ted felt many emotions: sadness at the ending of his marriage; relief that his divorce was over; and appreciation for the collaborative professionals, especially his lawyer, who had helped him get through the past four months. More than anything, he felt okay — with being divorced, with the relationship he had with his now former wife, Alice, and that their cherished son, Tyler, would be okay now and later.
Ted had not always felt okay. He remembered sitting across from Alice at the first collaborative team meeting shortly after discovering Alice's affair with her law partner. That was excruciating. Ted didn't believe then that he could, as the professionals were asking, look to the future and not the past. Ted wasn't even sure he'd be able to honor his promises under the collaborative contract, especially the no court pledge, and he wondered whether agreeing to the attorney disqualification provision was a mistake. Trusting Alice to truthfully disclose her finances without formal discovery and to negotiate transparently in light of her personal betrayal seemed impossible. Could he really rely on the advice of his lawyer to trust the process and the professionals?
Ted was a businessman, not a lawyer. But as the husband of one of Connecticut's preeminent divorce lawyers, Ted knew he could use the family court system to punish Alice for destroying his family. He was prepared to do that until another of Alice's partners, one whom Ted had always respected, urged Ted to consider collaborative divorce.
As Ted thought of the collaborative process, there were many aspects that impressed him. Some, in stark contrast to his vision of a litigated case, stood out.
Privacy. Ted imagined, with glee, that he would embarrass Alice by having her served with divorce papers by her favorite marshall and exposing her personal life to her colleagues at short calendar hearings. Wouldn't her lover need to testify on his motion for exclusive possession? Surely, Tyler would tell his guardian ad litem about the marijuana cigarette he found on his mom's nightstand. Ted hadn't considered that this strategy would affect his own reputation or motivate Alice to mount her own personal attack.
As part of collaborating, Ted and Alice committed to maintain their professional, personal and family privacy. By agreement, the legal case was filed in a neighboring judicial district and Alice waived service. At the first collaborative team meeting, pendente lite financial and custody arrangements were established so that the court file contained no motions, evidence or orders. The details of Alice's practice and Ted's construction business appeared nowhere in the court files except in their private sealed financial affidavits. Absent also were details of their family's personal lives.
There were no deposition transcripts, interrogatory responses or expert reports to be viewed by family members, disgruntled employees, clients or competitors. Many aspects of the divorce financial arrangements were implemented before the settlement agreement was signed. Thus, the agreement itself, a public record, did not contain extensive financial details. To Ted's relief, the one necessary court appearance, the uncontested final hearing, went smoothly and exactly as the lawyers explained it would.
Business sensitivity. Recalling Alice's war stories, Ted envisioned expensive, intrusive and time-consuming business evaluations, days of depositions and experts battling at trial with each other and the lawyers. He imagined business disruption from the audit of the business by Alice's favorite forensic accountant and the report of the audit that would, no doubt, reveal proprietary business information and perhaps allege questionable accounting practices, and, in the end, overvalue the business.
Instead, with the help of their lawyers, Ted and Alice jointly retained one neutral collaboratively-trained business valuation expert on terms that met their particular needs and budget. The expert agreed to the privacy and disqualification provisions of the collaborative agreement and a non-disclosure agreement that Ted's business lawyer prepared.
The expert, having completed the assignment quickly and on budget, presented the findings orally at a collaborative meeting and answered questions from all members of the team. Although Ted felt the valuation was high and, not surprisingly, Alice thought it low, they were both comfortable accepting the valuation as a basis for the financial settlement since they had jointly retained her and both had input into the valuation process.
Custody and parenting. Although both Ted and Alice adored Tyler, parenting him, especially in light of his physical and mental disabilities, had long been a source of marital conflict. Each parent believed they loved Tyler more and was a better parent than the other. Neither could bear the thought of waking up each morning without Tyler in the room next door.
Following the advice he knew Alice gave to her clients, Ted, upon learning of Alice's affair, had filled a notebook chronicling Alice's poor parenting to buttress his case to the guardian ad litem and family relations officer. From Alice's computer files, Ted copied a motion for a psychological evaluation of Alice that he would have his attorney file. Ted hadn't considered that his chronic depression which required occasional hospitalizations might be more concerning than Alice's college sexual practices.
Ted was amazed at how the divorce coach helped him to shift from surrendering to his own needs and fears to creating, with Alice, a parenting plan that was child focused and developmentally appropriate. The coach provided them with expertise rather than ammunition to find fault with each other. Ted knew that if he and Alice hadn't prepared with the coach they couldn't have gotten through the first divorce talk with Tyler. Their custom parenting plan, beyond just a schedule, included strategies for handling parenting style differences. Confident that disclosure of their weaknesses wouldn't hurt them, they both readily agreed to get some individual counseling to help them manage their own issues and be better parents. Although Ted still wants to be with his son every day, Ted appreciates Tyler and Alice's needs to be together too.
Creative settlement. Whether Tyler would ever be financially independent or able to live on his own was still unknown. Initially, Ted assumed that since Alice was abandoning the family, the burden of caring for Tyler over the long term would fall solely on his shoulders. He was ready to "fight for Tyler," though he was not sure exactly what that meant.
Ted was surprised then when Alice announced at the first team meeting that her biggest concern, which Ted shared, was "making sure Tyler is okay once we're gone." Ted and Alice jointly retained an estate planning attorney to address that concern. The attorney helped Alice and Ted establish and fund a special needs trust for Tyler and took other steps to provide for their son. No family court could have crafted such a solution.
Alone in his car after saying good-bye to Alice and their lawyers, Ted cried for a few minutes. Then he lowered the top on his convertible, sent a text thanking the partner at Alice's firm who recommended collaboration, and drove off. He had 20 minutes to get to school before Tyler's spring concert started. As he took his seat in the front and saved the next one for Alice, Ted was content. Due in large part to the collaborative process, Ted knew that in a moment Tyler would be smiling as he looked down from the stage at his parents together.•