D  e  s  e  r  t     E  x  p  o  s  u  r  e  February 2006

An Alternative Route to Splitsville

Applying collaborative law to the divorce process can make breaking up a bit less hard to do.

Years ago I stopped doing divorces because it was driving me crazy. The legal system often took a bad situation and made it worse. And to boot, the wife and husband managed to squander a lot of their money on attorneys' fees that was used on the parties' squabbling and fussing and "gotcha-ing," instead of on accomplishing anything.

The cases involving custody of children were the ones that really got me. Sometimes I wanted the court to take the kids away from both parents. It seems like the filing of a divorce temporarily shuts down the genetic "parenting instinct." Moms and dads would ruthlessly damage their children in blind and vicious attacks on each other.

Over the years, the legal system for divorces has improved some in important ways, though it is still fundamentally flawed. But now there is an alternative process for getting a divorce, "collaborative law"—or, as one group has coined it by service mark, "Collaborative Divorce." I first wrote about this new approach to the divorce process three years ago; this column is an update.

Each lawyer who practices "collaborative law" has to go through special training in the collaborative law process, which includes overcoming the ingrained tendency of lawyers to fight. As applied to people getting divorced, this collaborative law process means a "divorce with dignity and custody with compassion."

It is an out-of-court legal process that allows each party to retain a separate lawyer who practices collaborative law to help settle divorce and family law disputes. The settlement that results from this "collaboration" is then submitted to the court for approval.

The process requires the shared belief by the participants and their families that it is in their best interest to avoid long and costly court proceedings in divorce and family law matters.

It relies on the honesty, cooperation, integrity and professionalism of the parties and their lawyers.

It encourages the parties to resolve present and future disputes in a manner that will contribute to the future well-being of themselves and their children.

It allows the parties, the lawyers and any mental health or financial professionals to think "outside the box" to reach creative solutions to divorce and family disputes.

It is cost-effective, as the parties, the lawyers and the consultants spend their time seeking solutions instead of preparing for expensive court hearings.

It provides an alternative to adversarial and costly court proceedings, with legal and other professional advice provided in an atmosphere of dignity, honesty and cooperation.

Collaborative Divorce lawyers make the following commitments to their clients:

• To settle divorce and family disputes without court involvement in the process, only approval of settlements.
• Not to use the threat of litigation or any other legal process as a way of forcing settlement.
• To provide full, honest and open disclosure of information.
• To direct all attorneys, accountants, therapists and other consultants to work in a cooperative effort to resolve issues without litigation.
• To eliminate the negative consequences of litigation.
• To protect and respect the dignity of all involved, including parties, children, attorneys and consultants.
• Not seek to take advantage of other parties.
• To promote the true best interest of the children regarding custody and time-sharing by searching for an amicable arrangement.
• To promote a caring, loving and involved relationship between the children and both parents.
• To negotiate in good faith, taking only reasoned positions.
• When positions do differ, to use their best efforts to respect the fundamental needs of all interested parties and to create satisfactory proposals for settlement.

Among the benefits of the collaborative process are:

• Minimizing the negative impact of divorce on divorcing parties and their children.
• Spending less money to obtain the information needed for a fair division of property and debts. What the parties do spend will be devoted to solutions rather than preparation for and attendance at court proceedings.
• Having a team of dedicated professionals to help and guide the parties through the difficult emotional times that often occur in divorce and that can inhibit reasoned decision-making.

To get the collaborative process started, first, everyone must recognize that collaborative divorce and family law requires two cooperative spouses. A person must talk to their spouse about the collaborative process and give him or her a copy of the brochure.

Second, since each party will have his or her own lawyer, each spouse contacts one of the independent attorneys listed on the brochure or another lawyer who is trained in this special process. Then each spouse can have an individual, separate consultation with an independent attorney to talk about the collaborative divorce process.

Third, once the spouses agree to use the collaborative process, their attorneys will contact each other. Then the divorcing parties will be on their way to resolving their divorce in an effective, economic and healthy way.

Collaborative family and divorce law is an alternative process allowing spouses to divorce with dignity, to negotiate instead of litigate, and to protect their privacy.

There are collaborative lawyer groups springing up all over the country. There is a statewide group in New Mexico, The New Mexico Collaborative Law Group. Their website is www.newmexicocollaborativedivorce.com. There are also two national organizations that have Web sites, The Collaborative Law Center, www.collaborativelaw.com, and Collaborative Divorce, www.collaborativedivorce.com.

Robert (Tito) Meyer practices law in Las Cruces, representing people who have been injured in accidents and the families of people who have been killed in accidents. Contact him by email at tito@zianet.com or phone (505) 524-4540, (800) 610-0555, or PO Box 1628, Las Cruces, NM 88004. This column is not intended to provide legal advice to any specific person, or with respect to any particular problems or situations. To find a lawyer, call the State Bar of New Mexico referral service, (800) 876-6227.

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