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1. What is the difference between a collaborative divorce
and a litigation based divorce?
2. What are the negative aspects of the collaborative divorce
alternative?
3. Once in divorce litigation, is it possible to get out of it?
4. If divorce litigation is such a waste, why do so many folks
do it?
5. What is a divorce supposed to cost?
6. Do I really need a lawyer?
7. How do I find the right divorce lawyer for me?
8. What good is a lawyer if he or she can't fight for me?
9. If we're not going to court, what do the lawyers do?
10. What exactly is the Eclipse® Collaborative Law Software?
11. Can anyone purchase Eclipse® Collaborative Law Software?
12. Are we trying to sell you something?
13. Why would lawyers use the Eclipse® CLS if it lowers their fees?
14. Does Collaborative Family Law make Divorce Too Easy?
1. What is the difference between a collaborative divorce
and a litigation based divorce?
2. What are the negative aspects of the collaborative divorce
alternative?
3. Once in divorce litigation, is it possible to get out of it?
4. If divorce litigation is such a waste, why do so many folks
do it?
5. What is a divorce supposed to cost?
6. Do I really need a lawyer?
7. How do I find the right divorce lawyer for me?
8. What good is a lawyer if he or she can't fight for me?
9. If we're not going to court, what do the lawyers do?
10. What exactly is the Eclipse® Collaborative Law Software?
11. Can anyone purchase Eclipse® Collaborative Law Software?
12. Are we trying to sell you something?
13. Why would lawyers use the Eclipse® CLS if it lowers their fees?
14. Does Collaborative Family Law make Divorce Too Easy?
Q. What is the difference between a collaborative divorce and a litigation based divorce?
A. Collaboration seeks to reconcile - to have the parties accept the change in life called divorce - and within the reconciliation process to resolve matters between themselves in a way that is the best for both of them. Litigation seeks the defeat of the other - the imposition of will rather than choice.
Litigation consumes resources, collaboration creatively allocates them.
Collaboration, in that it deals with real issues in human as well as legal terms, is very efficient. Litigation, which deals with human issues by the imposition of artificial rules and procedures is hideously inefficient.
Collaboration is based on verifiable trust - while litigation is based on the concept that to trust is to be foolish and to be trustworthy is to be weak.
Litigation is "sold" by lawyers who need clients who are angry and combative, collaboration is encouraged by lawyers and clinicians who are gratified when both spouses - their client and the other spouse - leave the process intact and honorable.
Litigation creates an atmosphere of threat and consequences, collaboration creates an atmosphere of creativity and opportunity.
Litigation sees clinicians and counselors as tools to keep the client's spirits up for the battle, collaboration sees clinicians as partners in meeting all of the needs of the client in days of difficult life transition.
Litigation equates justice with winning, collaboration equates justice with peace.
Q. What are the negative aspects of the collaborative divorce alternative?
A. Collaborative family law begins as a choice exercised by each spouse. And like every choice in live, something is chosen and something is left behind.
Competent lawyers will know what your realistic alternatives are, honest lawyers will explain them in a way you can understand and really good lawyers will care what the alternatives mean in terms of your life and future and will help you choose wisely.
The principles and practices that constitute collaborative law add a moral and human element to a process that pretends to be purely legal. And the law – which is purely ‘legal’ - gives no weight to moral issues the law is not designed to consider. That is why, in litigation, the husband and wife are immediately treated by the court as adversaries if not enemies. We say ‘pretends’ to be purely legal because pretending so is necessary when those in authority administer a system that serves two masters. As noted elsewhere on these pages, marriage and divorce have two distinct but tightly bound parts. One part is the personal and private and the other part is public and legal. The law only deals with the latter and in doing so often causes worry and distress in the former. For example, the law, once the evidence establishes the legal ‘facts’, pretty much controls whether one spouse will pay alimony to the other. The process by which this legal determination is made doesn't consider the personal impact of the decision process on either spouse.
When you choose the collaborative alternative to litigation, you choose to add the human and humane elements to the process. If your spouse is so distraught by the prospect of divorce and the process by which it occurs that he or she will ‘sign anything’ just to avoid the pain, by agreeing to use the collaborative process you give up the chance to take advantage of their weakness of the moment.
Another aspect of collaborative family law is the abandonment of moral judgment as a component of the process. While the collaborative process is not judgmental – it is not designed to apply standards of ‘right’ and ‘wrong’ and therefore does not reward or punish either spouse based on those standards. It does require each spouse to deal with the other as an independent human being, to consider their needs and to craft the terms by which their joint path through life will separate looking to the maximum mutual best interest for each, not the victory or defeat of either. While the courts – in almost every state – long ago struck the consideration of moral issues out of the divorce process, litigation tempts spouses to believe that the court will render some sort of moral ‘justice’ along with the property division. Sometimes myths are so powerful they overpower reality and we hang on to them. Many people who smoke tell themselves it's a choice, not an addiction. And sometimes the prospect of divorce is so threatening to our self esteem that we need to hold on to the myth that divorce litigation will yield a form of moral justice that will soothe what is hurting.
An important area where a person choosing the collaborative option makes a choice is in the role their attorney plays in the process. This is a very important point – made more so by the fact that many people have an idea in their mind what an attorney should do for them.
Q. Once in divorce litigation, is it possible to get out of it?
A. Yes.
Q. If divorce litigation is such a waste, why do so many folks do it?
A. The first reason is because marriage is a legal status as well as a private relationship. There are very few, if any, places left where the old idea of 'common law' (usually living together for a period of years) marriage has any validity. As a public status, marriage has to be publicly created - and that usually means a license and a ceremony conducted by someone authorized to do os by the state. To end that public relationship likewise requires a declaration that the marriage is over (the 'judgment' of divorce) rendered by someone authorized by the state - usually a judge. Whether or not the parties fight in court, they have to go to court - at least once in most states - for the marriage to be legally over and the rest of their lives to begin.
Another reason is that being in a dysfunctional marriage is being in a life out of balance. When life is out of balance, we struggle to regain that balance - struggle against that which seems to be causing that falling feeling. Sadly, this is often the person who shares the dysfunctional marriage with us - the spouse. The spouses may not start out wishing to hurt the other, but the litigation model the law gives us to settle our marital affairs often creates a slippery slope leading to difficult adversarial fighting in court.
Another reason is because we live in a culture that seems to define everything in terms of winning and losing. When we're hurt or in distress, we are 'programmed' by our culture that the thing to do is to 'fight' even if we don't know exactly who or what. (A good cultural example - politicians are always telling us that they are fighting for us. Fighting whom? The politicians who are always "fighting for us' have now 'gone negative' with ads that make us sick and tell us nothing.) Maybe the trend will change, but for now it seems to be part of our culture and is an easy trap to fall into, especially when we're hurting.
Q. If we're not going to court, what do the lawyers do?
A. The old aphorism about divorce court is that if you don't agree, the judge will agree for you. The point is that it would be really helpful if you had an idea in advance what the judge might do. The judge is not only obligated to make sure the divorce contest comes out a tie, but he or she is there to make sure that the law is followed.
Collaborative lawyers each benefit their respective client by their knowledge and experience - what the law is and what the judge might do with it. The fact is, no matter how collaborative each spouse and lawyer tries to be, what the law is and how the judge would apply it to the spouses unique situation is always in the back of everyone's mind. Each lawyer makes sure their client understands the law as it applies to them.
Another thing the lawyers do is to keep the case moving along. When a case is litigated, the court - the judge and the judicial staff - do that. Without the framework of the litigation model, the lawyer fills this role. One of the tools that lawyers can use to make this part go smoothly is the Eclipse® Collaborative Practice System.
Q. What is a divorce supposed to cost?
A. There are several ways to look at the cost of a divorce. One of the most realistic is to realize that whatever the couple has at the start of the divorce process, the divorce process itself will consume some of it. Between the litigation and the collaborative divorce options, a collaborative divorce consumes less - and leaves more that the spouses can use to resume their lives.
Remember - collaborative law attracts those lawyers who see the law as a service profession, not a way to make a lot of money.
Q. Do I really need a lawyer?
A. It is a general rule in all the courts across the country – anything a lawyer can do for you, you can do for yourself. The answer to this question is ‘No’ – when facing a divorce neither spouse is required to have a lawyer represent them. The real question is “Am I better off with a lawyer?” If we were selling legal services, we'd answer “yes” and go through the standard rationalizations in support of that self-serving answer. But this is an important question and the answer is deeper than a simple ‘yes’ or ‘no’
One of the important points we have to make – and we make it often – is about the dual nature of marriage – and divorce.
Divorce is not quite like ‘marriage in reverse’ but to successfully deal with divorce it is necessary to understand the dual nature of marriage.
Imagine marriage being like a photograph – a beautiful sunset depicted on one side and the rules of backgammon on the other. (If you actually know the rules of backgammon- imagine a game you don't know)
· ‘Beauty’ is a conclusion of the heart – the photograph depicts a beautiful scene because of the way looking at it makes you feel.
· The rules of backgammon, on the other hand, are in your head. They are the procedural rules for a gambling modality and they either make sense or they don't.
There are two points to this analogy…
· The photograph is one thing, but it has two, quite different, sides. One side relates to our emotions and the other side to our intellect.
· Without something or someone to help us, it is impossible for us to see both sides at the same time.
The two sides of marriage – and divorce – are the personal (private) side and the public ( legal) side.
· The personal and private side relates to how we feel – whether we're in love or not, whether we comfortably trust our spouse, whether we have faith and hope for our future, whether we feel our spouse loves and trusts us. There are as many expressions of this personal and private side as there are people. In court, this side doesn't matter at all.
· The public and legal side deals with the relationship between the spouses that the law will enforce (division of property and support are examples) and the relation between the spouses and society generally (retirement benefits and property rights would be examples of this side). In court, this is the only side that matters.
Can you keep these two sides – both of which are alive and kicking within you – separate enough to get through the divorce process without some help? Ask yourself if you've ever gone grocery shopping while you were hungry only to come out of the store with a lot more than you needed? Most of us have had this experience. It happens because our stomach (how we feel – in this case hungry) takes charge of what we think (we need green vegetables – not junk food).
So the answer to the question “Do I really need a lawyer” is this. The more you feel, the more you care, the more you worry about the future, the more you cry, the more you swear, the better off you'll be with the guidance and support the right lawyer can and will provide.
Q. How do I find the right divorce lawyer for me?
A. This is really two questions…
· Who is the right divorce lawyer for me, andThere are four things about a good lawyer. They are – in order of importance - that he or she…
· How do I find him or her?
Caring· Is caring
· Is competent
· Is Honest and
· Is reasonable in their fees.
The relationship between an attorney and a client is largely build on trust. (This trust runs in both directions, which is why it is so important that the client be straight with the attorney.)
Competence
It isn't that an attorney's competence is less important to a client's future than how much he or she cares, it is that competent family lawyers are more competent than caring ones.
Q. What good is a lawyer if he or she can't fight for me?
A. This is a fair question and the answer lies in debunking some socially popular myths - including some myths that lie at the heart of the adversarial litigation nightmare.
Let's start with famous football coach Vince Lombardi's quote: "Winning isn't everything, it's the only thing." That statement is representative of American culture these days - everything is about winning. And in order for there to be winners, there must also be losers. Marriage and divorce are not contests, which the individual spouses "win" or "lose" , but our culture tends to define things that way.
Another point is that our popular culture has defined the courtroom as the 'arena' where winning and losing takes place. The courtroom - especially as home for those popular real life criminal trials and TV dramas - is presented as the site of the fight - because this makes for good dramatic television, regardless of whether or not it reflects reality. (We'll probably never see a TV series called "The Collaborators".)
The truth is that fighting in family court is hideously inefficient and generally a waste of time. Not only are the rules designed to protect the weaker of the two spouses (imagine a football game where the rules are changed to help the weaker team) but the judge is there to guarantee a tie. Lawyers who promise to "rip his/her lying lips off" (no kidding - we've heard this) are promising an aggressive and hostile dog and pony show in discovery and motion practice (the part of the case before trial) that usually peters out as the client becomes emotionally and financially exhausted. Of course, there are degrees to this issue - as there are degrees to almost everything else in life. There are some lawyers who are downright scoundrels, promising something they can't deliver to clients who are hurt and angry. But there are many lawyers who want to serve the client - even if that means litigating the issues of the divorce in the courtroom.
To use another sports analogy, these lawyers are sort of like hockey players. They start the game with intentions of playing by the rules, but hockey being what it is, a fight almost always breaks out over something.
Collaborative family lawyers know all about the myth of 'lawyer as champion in the fight'. One of the reasons they choose to offer collaborative services is because it is more honorable and satisfying to provide legal services that actually benefit the client.
What do collaborative attorneys do for their client if they don't threaten the spouse or curse the other lawyer? They get to know and understand the client as an individual so that they can guide and advise the client toward a resolution of the divorce that is best for their client - not necessarily worse for the spouse. They give the client the benefit of their legal knowledge and experience (remember both attorneys know that the law still must be followed) and they give their client a strong right arm through the process.
Q. What exactly is the Eclipse® Collaborative Practice Software?
A. The Eclipse® CPS uses the Internet and unique software developed solely for this purpose - in a completely secure and private way - as a tool and allows the lawyers and other professionals who may become involved in any given case to provide the most benefit at the least cost to people whose lives are changing through divorce.
At the heart of every collaborative divorce is the 4-way agreement between both spouses and both attorneys to avoid using the adversarial system of litigation in resolving the issues that must be faced when a marriage is dissolved. While turning away from adversarial litigation is very beneficial to spouses - and especially to their children - there must also be something better to turn to. That is what the Eclipse® CPS is all about. The Eclipse® CPS is the 'tool kit' used by collaborative lawyers and other professionals to make the process go smoothly and efficiently.
Q. Can anyone purchase Eclipse® Collaborative Practice Software?
A. The Eclipse® CPS is only available through members of the Advocates Network because the best tool is no benefit in the hands of the wrong professional.
Q. Are we trying to sell you something?
A. Yes and No. This site is not supported by any government money - and like everything else in life, it costs something to maintain. The site only provides information - there is nothing for sale here at all. Even the Eclipse® Collaborative Practice System is only available to attorneys and clinicians - not members of the public.) So, no, there is nothing for sale here.
Then again, we are 'selling' what we believe is a good and beneficial idea - the idea of collaborative family law as an alternative to adversarial divorce litigation. However, this idea is an alternative to litigation - which most collaborative family lawyers also practice. (There are a handful around the country who are lucky enough to limit their practices to only collaborative cases - and maybe someday more attorneys will be able to do so. But for now, collaborative services are what the folks behind this site want to provide, while litigation based family law services are what they will provide if that is what the client wants.)
So, what it comes down to is that we're 'selling' an idea that we believe is better than the alternative for most folks facing divorce, a whole lot better for the kids if these folks have children, and is a much more satisfying service for the attorneys to provide, even if they don't average as much money per case.
Q. Why would lawyers use the Eclipse® CPS if it lowers their fees?
A. If you are completely cynical when it comes to the legal profession you may not accept this, but the lawyers who are involved in the collaborative law movement and offer collaborative family law services do so because it is the right thing to do. In addition, individual lawyers no more control what goes on in society than does any other person. Changes in society are reflected in changes in the courtroom. Years ago, litigation was the search for the truth by two ethical professionals, each conducting their representation of their client honorably. Today, it has become something less. To use a sports analogy, litigation used to be like Olympic wrestling - an honorable and measured contest. Today, litigation is more like the World Wrestling Federation - storm and fury with no honorable substance. Collaborative lawyers may earn fewer dollars per client, but there are more people to help - and lower fees are a fair price to pay for sleeping well and carrying your head high.
Q. Does Collaborative Family Law make Divorce Too Easy?
A. There are many things in life that are paradoxical - that are contrary to what they seem - and this is one of them. Losing your temper and swearing at some thing or some person who set you off is unpleasant - just like litigation is unpleasant. But is is easier (opening the door to an emotion demanding outlet is always easier) than controlling that emotion and directing the force to something constructive rather than destructive. Collaboration is the right thing to do. It certainly is best for the children and it may give you inner peace and comfort, but it is not easy in the way that the word "easy" is often used.
- When you end your marriage in a collaborative fashion, you show respect not only for the person you are divorcing but also for the institution of marriage that you are leaving. What may be even more difficult, the collaborative process has you working out the terms by which your common life will be divided into two separate lives under circumstances where the person you are divorcing shows you respect.
- Your anger and hurt at the failure of the marriage relationship will pass - and pass more quickly through the collaborative process - but you will not have the emotional deceit of telling yourself that the person you are parting company with is less of a human being. And you won't be able to tell yourself that "they got what they had coming" or that any of those other things we so desperately want to tell ourselves when hurt and disappointment turns to anger.
- There may be a thousand reasons why collaboration is a
better
option than litigation, but to pretend that it makes divorce too easy
isn't
the way it works out.
