If you are getting a divorce, and assuming that there are issues in the future
that require the two of you to be able to communicate and make joint decisions,
(co-parenting; co-ownership, etc. . . .) which of the following would you
choose:
1. Getting the divorce over as soon as possible and dealing with
communication issues at some point in the future; or,
2. Working during the dissolution process on the issues that are
impeding communication so that, when the dissolution action is
finalized, you are ready and more capable of communicating on
issues requiring joint decisions.
My experience is that option A is detrimental to children of a divorcing couple
and detrimental to the ability of the parties, in the short and long term, to
communicate on issues requiring joint decisions.
Option B, while perhaps more challenging for everyone involved, results in
better results for children and long-term communication between the parties in
the vast majority of cases.
This fact was recently reinforced for me when I completed a non-collaborative
family law case by sitting with my client through a nine-hour settlement
conference. This post sets forth some of my thoughts as I process all that
happened in this case over the ten months of my involvement.
In this case I represented the husband. When we had our initial consultation
we had a thorough and wonderful talk about options and process and children and
decoupling and hopes and dreams. Off he went with my copy of Mom's House Dad's
House, which he reported to me about via email as he read it through. His hope
was that his spouse would choose a collaborative divorce.
Not only did his Wife choose not to proceed collaboratively, she hired one of
the downtown Seattle corporate firms.
My client and I did not give up hope that we could generate dialogue that would
lead to a lasting, durable agreement and a healthy co-parenting relationship.
We had a four-way meeting so everyone could meet each other, we could set
interim financial and parenting arrangements, and to explore the interests of
the Wife and Husband so that, as we moved towards resolution, we could make
sure to craft something that reflected what the parties held as important.
The parents were still living together so they agreed to a relatively equal
residential schedule for their two children.
We agreed to use a collaboratively trained financial neutral to gather
financial information and organize a spreadsheet to assets and liabilities. We
agreed to have a free exchange of information. All we needed to do was contact
the other attorney and ask.
But the big firm was set in its ways. First came a comment from the Wife's
attorney that his view was that the Wife would be the primary residential
parent and would stay in the family residence. Then came a brief set of
interrogatories. Next came a subpoena. When I called the other attorney to
inquire as to the need for these legal devices when we were willing to provide
the information without the need of going to the expense they did, the only
answer I received was that it was done as part of the firm's regular due
diligence.
Since the bank account of the parties remained joint, my client watched as the
Wife's legal bills mounted at a rate that was three times the bills coming from
my office.
Trial was not imminent but we scheduled the settlement conference well in
advance so we could try to get the case resolved and the parties further along
in the divorce process.
Prior to mediation each party submits a letter, spreadsheets, and perhaps
proposed orders. Since the Mediator is not the decision maker, my practice is
to simply set forth the facts and my client's view of how things should turn
out. I certainly do not spend time disparaging the other party. This is not a
trial. Why submit a letter that calls the other party names, says they are not
a good provider, or say they are not a good parent? Doing so only escalates
the animosity between the parties and gets in the way of what my job is: to get
the case settled in the best way I can based on what my client has told me is
important for them.
In terms of height, my submission was about one inch. The Wife's attorney
submitted almost a foot of material at an unimaginable cost.
The Wife's attorney did not feel the same way about their settlement
submission. I was appalled by their eight-page mediation letter to the point
that I stopped reading and set it aside. In an email to my client I called it
a bunch of "crap" and advised my client not to even read it. My client
responded with an upbeat email, saying that he appreciated my support and that
he felt the same way about the letter.
Prior to the mediation I briefly flipped through the foot of documents the
Wife's attorney charged her to put together. I found most of the material they
provided irrelevant given that both sides knew what the assets were and they
were already summarized in the financial neutral's eight page report.
The Wife's proposed parenting plan was a plan we called the `70's Plan: every
other weekend and an every Wednesday, non-overnight "hamburger night". Quite
different from the plan the nearly equal schedule the parents had been
following for the prior six months.
It was clear to me that the Wife had delegated her authority, her
decision-making, to her attorneys, a choice that I never recommend to clients
as it is the client that has to live with the resolution, not the attorney.
That being the case, why delegate the decision-making to the attorney?
All of the above being said, the case settled. Before my client signed the
final agreement I talked to him about our initial and subsequent meetings
during which I learned what my client wanted in a final resolution. I had
promised him that prior to settling the case I would check in with him one last
time to make sure that what he agreed to incorporated as many of his high end
goals as possible.
In this instance he said that despite the actions of the Wife and her attorney,
that he was satisfied the agreement would be good for the children and that the
financial resolution was something he could live with.
So we signed the Agreement and left for the day.
Two days later I received a phone call from my client saying that his six year
old daughter had come up to him and told him words to the following effect:
"Mom says that a big truck is coming to take our stuff away and we have to live
in a small apartment because you have all the money."
Imagine your child saying these words to you. I know I would be greatly
saddened that my daughter was used in such a way and felt so angry.
My client and I talked about the incident and I talked about the fact that he
and his Wife had done no "decoupling" work together. While my client had been
in individual counseling throughout the case the Wife had not. This meant that
the high emotions that each party brought into the process were not resolved
and while they had many years of marriage during which they learned how to
co-exist, they had not worked together to learn how to live in a two-household
family.
I immediately sent an email to the Wife's attorney pointing out the way I
thought we had failed our clients, the need for our clients to do de-coupling
work, and passing an invitation from my client to the Wife to go into
counseling designed to work on what living in two houses would entail.
The attorney or the Wife passed on the invitation in some form or another and
the Wife declined the request.
My concern is that the children are going to suffer as a result of that
decision. In fact, the odds are that children of divorcing parents that refuse
to communicate about child-related issues will have problems as they grow up.
What I want to leave you with is the idea that though you are the consumer of
legal services, the client as opposed to the one with the legal knowledge, you
are in charge of the legal process and you should never delegate your authority
to your attorney or to anyone else.
YOU know what is important to you and what you need to have in the final
resolution of your case.
I think that the role of the attorney is to find out what is important to you
and do everything possible to make sure that your agreement reflects those
important elements.
Do not be afraid of asking your attorney what they intend by their actions.
Why do you need to send a subpoena? Doesn't calling my spouse names and making
accusations against him have a chance of working against me because the letter
may hurt his feelings and he will be less likely to settle? What are you doing
that benefits my children?
If your attorney is not able to answer these questions, it may be that you are
looking for a different attorney, one who is interested in what is important to
you and for the children.
