April 2013 - Collaborative Divorce—A Follow Up
by Glen L. Rabenn, Marc R. Bertone, and Paul J. Toohey
The April 2011 issue of Orange County Lawyer contained an article entitled “Some Benefits of Mediation and Collaborative Law,” which covered how to get a divorce without going bankrupt, without fracturing the family, and without starting World War III. In that article, John Denny and Judy Williams provided readers with an excellent overview of the benefits of mediation and collaborative law. This follow-up article will explain the origins of collaborative practice, address the growth of collaborative practice in Orange County, and provide a general overview of exactly how a collaborative divorce is conducted. Those of us who practice collaborative divorce hope that, after reading this article, members of the Orange County Bar Association will see collaborative practice as a viable alternative to litigation and a field that they might consider incorporating into their own practices.
The Evolution of Collaborative Practice
Over the last twenty years, collaborative divorce has evolved into an interdisciplinary dispute resolution process. In this enhanced model, a “collaborative team” of professionals is assembled to assist the spouses in negotiating the resolution of their issues. The full collaborative team consists of the spouses’ collaborative attorneys, two mental health professionals who function as divorce coaches, a third mental health professional who is a child specialist, and a financial specialist. All of these professionals are subject to the disqualification clause.
The participation of professionals from the three different disciplines has resulted in the establishment of collaborative practice groups. These are local organizations that hold monthly self-education and networking meetings. In general, collaborative teams are composed of members of the local practice group. In California there are now thirty-seven practice groups in the state, most of which belong to the statewide umbrella organization, Collaborative Practice California (CPCAL).
Collaborative professionals are now assisting divorcing couples in every state, in every English-speaking country, and in many other nations. The International Academy of Collaborative Professionals (IACP), which was formed in 2000, boasts a membership of more than 4,000 professionals, from twenty-four different countries. The local collaborative practice group—Collaborative Divorce Solutions of Orange County—now has a membership of forty-five family law professionals.
A Short Course on Collaborative Divorce
In a collaborative divorce (CD) the spouses negotiate a full settlement of their family law matter with the assistance of their collaborative divorce attorneys. The services of aligned professionals, including mental health professionals and financial specialists, are incorporated into the process. This insures that the three components of all divorce cases—legal, emotional, and financial—are all addressed in the ultimate settlement.
The Collaborative Divorce Stipulation and Order
Prior to the initial meeting, one of the CD attorneys will have prepared a “Collaborative Law Stipulation and Order,” which outlines the terms and conditions of the collaborative divorce process. In particular, the Collaborative Divorce Stipulation and Order includes a “disqualification clause,” which provides that if the collaborative process breaks down, all of the professionals—the attorneys, mental health professionals, financial experts, and any mutually retained expert witnesses—will have to withdraw from the case. Once the case has been filed with the superior court, the Collaborative Divorce Stipulation and Order is filed and becomes a formal order of the court.
The Collaborative Team
In a “full team” collaboration, each spouse retains the services of an attorney and a “divorce coach.” If there are minor children, a third mental health professional is retained to serve as a “child specialist.” To assist in the analysis of financial issues (support and community property), a “financial specialist” joins the team. The roles of these non-attorney professionals are discussed below.
Most of the business of a CD is handled through a series of face-to-face meetings and telephone conferences. Who will attend each meeting depends upon the issues being discussed. For example, if the couple is addressing the issue of child custody (the “parenting plan” in collaborative speak), a meeting between the spouses, their respective coaches, and the child specialist will usually be scheduled. If the spouses are focusing on child and spousal support, they will meet with the financial specialist.
On occasion, it is necessary for the spouses to retain an expert to render an opinion concerning specialized issues in the case. For example, where the value of the family residence is relevant, the spouses will jointly retain the services of a qualified real estate appraiser.
Setting the Agenda
The first stage of a CD case is a meeting that includes the spouses and their collaborative attorneys, as well as any other collaborative professionals who have been retained. Once the Collaborative Divorce Stipulation has been signed, the team then engages in a general discussion of how this particular collaboration will be handled. Because no two divorces are the same, each divorce requires specialized procedures and approaches. For example, where the most pressing issues concern the care of the children, the initial focus of the team might be on addressing those issues with the coaches and the child specialist. On the other hand, where a low-income spouse requires support from a higher earning spouse, the first step might be to have them meet with the financial counselor.
Addressing Urgent Problems
It is not uncommon for there to be problems and issues that need to be addressed immediately. For example, there may be a need to establish how much child support will be paid by the non-custodial parent. Or, one parent may be concerned that the other parent is going to take their child outside the state of California. These are the kinds of issues that need to be addressed immediately. At the initial meeting, the team will talk about any issues such as these and set out any agreements in writing. After the dissolution case has been filed, the formal Stipulation and Order is then signed by the spouses and filed with the court. This makes any of the initial agreements enforceable by the court’s processes.
The entire team does not attend all of the meetings; which team members attend depends upon what is going to be discussed. For example, if the purpose of the meeting will be to talk about a parenting plan for the children, the meeting will usually be limited to the parents, their respective divorce coaches, and the child specialist.
Communication between Team Members
Not all of the work of a collaborative divorce takes place at team meetings. Between the meetings, two or more of the team members will often communicate about the case, either by email, telephone conference calls, or mail. During these conversations, the team members will check with each other about how their respective clients are doing in the collaborative process and the general progression of the case. As additional facts and information are assembled, the team members will discuss settlement options for the issues that exist in the case.
Divorce Coaches and the Child Specialist
A divorce coach is a mental health professional (e.g., a psychologist, marriage and family therapist, social worker, or licensed professional counselor) who assists one or both spouses in managing and resolving the difficult and emotionally laden issues that often arise during the collaborative divorce process. As frequent participants in joint meetings with other collaborative professionals (lawyers, neutral financial specialists, and child specialists), divorce coaches also meet separately with their client(s) to help them learn better ways to prepare for and cope with the subject matter dealt with at the joint meetings. Divorce coaching does not include providing individual or couples therapy, although many clients will be encouraged to continue or pursue therapy with separate providers during and/or after the collaborative divorce process.
Ideally, both spouses should have their own divorce coach, so that when joint meetings do occur—and the likelihood of emotional intensity and instability increases—each client will have someone in their “corner” to turn to for assistance and support. However, in some cases, a single divorce coach may be shared by both spouses in order to reduce costs. Ultimately, divorce coaches will be relied upon to prepare their clients for success and create a safe “container” for their emotions throughout the collaborative process. In addition to assisting their clients in dealing with their own emotions, divorce coaches also provide guidance in crafting the parenting plan. Additionally, divorce coaches encourage and facilitate effective communication and teamwork between the clients, as well as the professional team members, in meetings and throughout the entire collaborative divorce process.
Children often suffer the most from the effects of a divorce, yet they rarely have a viable outlet for their feelings and concerns. The strains of divorce upon the family system can often make communication between parents and their children difficult, if not impossible. A child specialist is a neutral mental health professional who works with the parents to deal with the developmental needs of their children. The child specialist also meets privately with the children and helps them to understand and normalize their experiences throughout the divorce process.
During team meetings, the child specialist conveys to the larger professional team the children’s feelings, concerns, and hopes. This enables the children to have a voice in the creation of the parenting plan, instead of being silent, unwilling participants. The child specialist does not make specific recommendations. Instead, the child specialist aids parents in making informed decisions about the scope and content of their parenting plan. Such plans not only address parent sharing (custody) and parent-in-charge schedules (visitation), the children’s living expenses, schooling, extracurricular activities, and any religious practices, but, most importantly, they address the emotional well-being of the children.
The Financial Specialist
The financial specialist has the expertise and training to assist the clients and team by conducting a comprehensive assessment of the divorcing couple’s financial affairs, including assets (homes, bank accounts, investments, businesses), debts (mortgages, loans, credit cards), and cash flows (such as income derived from work or other sources).
Financial specialists are typically financial industry professionals, with either a CFP® (Certified Financial Planner™) or CPA (Certified Public Accountant) designation. In addition, most financial specialists undertake and earn the CDFA™(Certified Divorce Financial Analyst) designation. Financial specialists on a team cannot have had a pre-existing relationship with either parent, nor will a financial specialist have a professional role in the life of either parent after the process completes. This helps to assure the financial specialist’s objectivity and neutrality in the case and avoid any potential for a conflict of interest.
In the role as the financial neutral, this specialist gathers all of the information that, in a litigated divorce, would be gathered by two opposing attorneys through discovery. By avoiding this redundant data collection, the clients are saved time and money, and the team has a single source for case-related financial information.
Once a clear and comprehensive picture of the family’s finances is compiled, the financial specialist presents the preliminary findings to the clients in a three-way meeting to ensure they are comfortable with the information and that all income, assets, and debts have been fully disclosed. After the financials are accepted by the clients, the information is forwarded to the attorneys, so they can review the information with their respective clients prior to the next scheduled full team meeting.
At the full team meeting the financial specialist reviews the clients’ finances with the team so it has a cursory understanding of the information before the team moves into brainstorming. The team may request that the financial specialist prepare various financial scenarios, including a cash flow analysis, for the next team meeting. The ultimate goal of the financial specialist is to assist the clients in finding a solution which best meets their collective needs. Financial specialists do not try to get more or less for any one spouse or parent (as in litigation); rather, they try to make the most of the available assets for the good of the family.
The financial specialist has a unique and important role in the collaborative divorce team. While each of the lawyers and collaborative coaches works with one spouse/parent, and the child specialist (if applicable) brings the children’s voices to the table, financial specialists are true neutrals. They occupy a unique position in the team, truly able to observe and uphold the integrity of the overall collaborative process.
Length of Time for the Process to Be Completed
Spouses who are considering whether to proceed in a collaborative divorce often want to know how long the CD process can take. Because of the many variables involved in most divorce cases, it is not possible to give the couple a firm estimate of exactly how long it will take to resolve their case. As discussed below, research conducted by the International Academy of Collaborative Professionals (IACP), indicates that approximately 80% of all collaborative cases have been concluded within nine to twelve months. Obviously, the length of time it takes to complete the collaboration is a function of the number of issues presented.
Cost of the Collaborative Divorce Process
As with litigated cases, every CD case is unique, making precise cost estimation impossible. The IACP research reveals that, on a nationwide basis, the average total fees paid for all professionals in CD cases was $24,000. Knowing that everything in California tends to be more expensive than in other states, it can be reasonably assumed that the California average is greater than the national average, but there are no statistics available to confirm or refute that assumption.
Collaborative Divorce Statistics
Statistics compiled by the IACP confirm that the collaborative divorce process tends to deliver on its promises. The IACP recently published the results of a four-year accumulation of data from jurisdictions in the United States and Canada. The IACP study yielded the following results:
- 80% of all collaborative cases were completed within one year;
- 86% of the 933 cases included in the study were resolved with a formal agreement and no court appearances; and
- The average fees paid for all professionals totaled $24,185.
Is Collaboration for Everyone?
At a shoe store, as the saying goes, one size does not fit all. The CD process is no different. Our experience tells us that certain personality types should think twice about selecting collaborative divorce. These types include people who:
- Are highly intimidated by their spouses;
- Do not recognize the need to maintain a cordial and cooperative relationship with their spouse after the divorce;
- Do not believe that children need to have a good relationship with the other parent; and/or
- Have a high amount of distrust in their spouses.
There are also case profiles that are often inappropriate for the collaborative process. These include cases involving domestic violence, substance abuse, or severe emotional disturbance.
For the vast majority of couples who decide to divorce, however, the CD process can provide long-term emotional, familial, and financial benefits to the parties involved. We hope you decide to incorporate this process in your practice, or recommend it as an option to others.
Glen L. Rabenn, CFLS, is a member of the Orange County Bar Association, with offices in Seal Beach, and is a member of Collaborative Divorce Solutions of Orange County. He can be reached at GlenRabenn@gmail.com. Marc R. Bertone, MA, JD, is a Licensed Marriage & Family Therapist, with offices in Irvine, and is an associate member of Collaborative Divorce Solutions of Orange County. Paul J. Toohey is a Certified Divorce Financial Analyst™ and Certified Financial Planner™, with offices in Anaheim Hills, and is a member of Collaborative Divorce Solutions of Orange County.