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Divorce: Litigation v. Collaborative Process

One of the toughest, and saddest, things to accept in any failed marriage is the culpability of both parties in the breakup of the family.

Our firm represents both men and women, Plaintiffs and Defendants, those who have cheated and those who have been cheated on. We represent people accused of alcoholism and drug abuse, and we represent the accusers. Always, always, there are two people involved who are hurt badly, no matter what side they are on. Sometimes, the need for revenge is so strong, it makes people do remarkable damage to each other, to themselves, to their children.

Recently, a client discovered her husband was having an affair with their daughter's dance instructor. Another found that his wife was cheating with a close friend of his. Both people are understandably angry and hurt. One has chosen to file for divorce; the other has chosen the Collaborative Process. In both instances, unless by some miracle of reconciliation, the marriages will end, and likely, the affairs will end too.

In a divorce/litigation action, the role of the Judge and the Domestic Relations Court is simply to divide the financial aspects of a marriage and the parenting responsibilities. In most cases, the Judge never really understands all the ins and outs of a failing marriage, and she never assigns blame for the failure to one person or the other. The judge assumes that both parties have had a role in the breakup of the family, and the focus is on moving forward, not punishment for the past. It is my experience that it is this very denial of one side "winning" and the other "losing" that creates, for some people, never-ending post-decree litigation, as one or both parties continue to fight it out in Court, long after the marriage is legally over. Rarely is the opportunity for introspection and reflection offered through Court proceedings.

Collaborative Process, however, is completely different. The parties themselves actively decide for themselves and their families what is best for them. The introduction of "neutral" financial advisors, child specialists and therapist-coaches greatly reduces the stress of divorce on parents, as well as the children. Because the couple is directly involved in the details of the agreements, there is less to fight about when the marriage is over. And the opportunity to reflect on the marriage is presented often in more than one way - sometimes with the attorney, sometimes with the therapist or specialist.

Both Divorce/Litigation and Collaborative Process couples meet several times during the months leading up to the final end. The difference in these meetings is striking: the divorce meetings are hearings at Court, with all kinds of other people around, while Collaborative meetings happen privately at an attorney's office. The atmosphere of the Domestic Relations Court is hectic, loud and full of unpleasant emotions. The law office is more likely to be quiet and calm. At Court, people may feel as though they are just another "cog in the machine," while in the attorney's office, the power rests with the two parties. At our firm, we offer cookies, fruit and other snacks, in an effort to reduce the tension inherent in the process.

For the couple mentioned above traveling the Litigation path, it's important to lower the expectation of retribution or pay-back. The discovery of an extra-marital affair is gut-wrenching and horribly painful, but in general, the affair won't become part of the court proceedings, and guilt or innocence won't be part of the final decision.

The Collaborative path couple, however, by the simple act of sitting at a table together with attorneys and other parties, is beginning to set aside the need to hurt each other. They are building a foundation for future problem-solving and cooperation.

Both couples will be divorced in some amount of time. One couple will likely eventually heal; the other couple may never heal.

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