Ya Buts for Collaborative Divorce

            Our collection of "Ya, but...."s - and how to respond to them - was learned from years of experience. Do any of these seem familiar to you?

Click on any topic and we will take your directly to that response.
Ya, collaborative divorce is a good idea, but my spouse
        will never go along with it.
Ya, but collaboration seems to mean getting along, and, if we
        could get along, we probably wouldn't be getting divorced.
Ya, it sounds good, but if collaborative divorce is such a good
        idea, how come it hasn't been around for years?
Ya, sounds appealing, but it's too 'touchy-feely' and my spouse
        will never go along with having a coach, clinician or
        counselor - whatever they are called - much less paying
        for one.
Ya, but I make more than my spouse. Wouldn't that give me
        the upper hand in court?
Ya, but I can barely afford an attorney, much less a coach
        and a child specialist.
Ya, but collaborative law seems like a bigger deal than we need.
Ya, but what about pro se and mediation and stuff like that?

Ya, collaborative divorce is a good idea, but my spouse will never go along with it.

Funny, that is what he or she is probably saying about you right now.

Collaborative family law is not a process that either favors or empowers the 'weak'. Instead it is a process that turns over the decision making process to the spouses themselves in a way that is fair and balanced.

You don't choose the collaborative alternative because it is good for your spouse; you choose it because it is the best option for you. The same is exactly true for your spouse.

Don't try and get your spouse to see the collaboration option 'your way' - express the benefits of the collaborative option his or her way. Litigation wastes money - yours as well as that of your spouse. Even if they are suspicious of the collaborative option solely because you see it as a good idea, they are likely to understand how much of their money is going to go down the rat hole is they end up fighting you in court.

Most collaborative lawyers organize themselves in practice groups. They do this for professional reasons (collaboration related continuing legal education - the formation of common understandings and procedural relations with the courts and other professionals who add to collaborative success, etc.) They also form these groups to promote and make collaborative family law services available. They are usually the more experienced, competent and dedicated family practice lawyers in the area. They can usually explain the benefits of collaborative divorce in terms your spouse will understand. See if you can't get him or her to interview a collaborative lawyer or two and assure themselves that they aren't doing you a favor by agreeing to the collaborative option.

Ya, but collaboration seems to mean getting along, and, if we could get along, we probably wouldn't be getting divorced.

This is where the collaborative lawyer earns his or her fees. The collaborative law movement isn't about encouraging divorce or making divorce easy - it is about making the process by which a marriage is dissolved, when that dissolution is inevitable, civilized and humane.
One of the reasons collaborative lawyers organize themselves into practice groups is because they need to have a common basis of professional understanding and trust between themselves so that they can bridge the gap between their respective clients. They know that fighting in court benefits neither spouse, it just wastes their assets and embitters their future. Fortunately, because the collaborative lawyers aren't suffering the pain and distress that their clients are going through, they are able to bridge the gap between the clients. This is in addition to making sure their respective clients fully understand the process as well as their legal rights and responsibilities.

Ya, it sounds good, but if collaborative divorce is such a good idea, how come it hasn't been around for years?

Actually, it has been around for years. In fact, it is older than the current, expensive, aggravating, inefficient, adversarial mess in the divorce courts.
Starting in the 1970's there was a major change in the way society - and the courts - looked at marriage and divorce. The changes that occurred at the time were generally identified by the phrase "no fault" divorce. This meant that a spouse no longer had to establish that the other spouse did something wrong or contrary to the marriage vows - they only had to say they didn't want to be married to this person any more. The 'why' didn't matter at all.
This change in emphasis took the personal and private component of the marital relationship of the spouses out of the court's concern- leaving only the public and the legal. Before the change to 'no fault', the personal and private concerns of the spouses were part of the equation that was considered. After the change, only the law and relevant evidence matters.
Collaborative law is not a return to the old "fault" based divorce days - in fact, collaborative family law is very non-judgmental. But it is a step back to the days when there was a balance in the divorce process between the private, personal aspect and the public, legal aspect of the dissolution of the marital relationship.

Ya, sounds appealing, but it's too 'touchy-feely' and my spouse will never go along with having a coach, clinician or counselor - whatever they are called - much less paying for one.

It is almost proof of just how personal divorce can be: to consider that someone who will tell their child to consult with the guidance counselor at school on what courses to take for a better future, but won't deal with someone with the training and experience to help them through the decisions involved in divorce.
It isn't so important that each spouse enter into a professional relationship with a clinician as that each spouse recognize that such a relationship might be valuable for themselves - and that if they don't have such a relationship and their spouse does - that the spouse is benefiting both parties - and the children - by doing so.
We've come a long way in recognizing that other people can help us maintain our integrity and keep a level head in tough times. Today, when there is a tragedy we think nothing of having grief counselors available to make the lives of those affected better and to help get them back on track faster and with less painful and lasting effects.
While the rules vary from situation to situation, often this service is covered by an employee's EAP program or health insurance.
Finally – while they aren't always useful or necessary for every person – it is not uncommon for every hour spent with a coach, clinician or counselor to save 5 or 10 hours of attorney’s time. Get out your calculator.

Ya, but I can barely afford an attorney, much less a coach and a child specialist.

Collaborative family law is more efficient than litigation. That means that it involves less stomach acid, fewer tears, less swearing, fewer sleepless nights and less money.
While this is not a substitute for discussing your specific attorney's experience and motives for offering collaborative services, almost all of the attorneys who do so have made the decision on moral, not economic, grounds. They believe that collaboration is better than litigation and they are committed to make it available to as many people as possible.
Put another way, if you can't afford collaboration, you sure can't afford litigation.
A primary aspect of collaborative family law generally, and the Eclipse^® Collaborative Law System specifically, is the cooperation of the attorneys in finding the most efficient way - the best "case critical path" for the spouses.
You will never know till you call around to a few collaborative attorneys and talk money. Collaborative attorneys are different - while they have to make a living like everybody else, they aren't offering collaborative services to get rich, they do it because it is the right thing for them as well.

Ya, but I make more than my spouse. Wouldn't that give me the upper hand in court?

The judge has a vested interest in making sure his or her court isn't abused by a wealthy spouse at the expense of a poor one. They have the power to award the poorer spouse the money it takes to litigate against the wealthier one - if only to balance the scales of justice. Ask - and if necessary - suggest your spouse ask a collaborative lawyer to cite a case or two where this happened. A personal favorite is the Wisconsin Supreme Court case of Ondrasekk v Ondrasek
As you consider the adversarial litigation route, consider how careful with the legal fees and expert witnesses your spouse's attorney is going to be with you picking up the check.

Ya, but collaborative law seems like a bigger deal than we need.

With the collaborative process - much more so than with litigation - the spouses are the ones who decide exactly how 'big a deal' the divorce is going to be.
Many collaborative divorces go so smoothly that they don't seem like big deals at all.
Collaborative lawyers - especially when the Eclipse^® Collaborative Law System is used - keeps the process in the hands of the clients and their lawyers. And the lawyers have pledged and agreed to keep the clients' best interests in finding the best process in guiding their respective clients to a collaborative resolution of whatever issues they face.
Litigation - the only alternative - is about winning the war; Collaboration is about finding the peace.

Ya, but what about pro se and mediation and stuff like that?

Nothing is right for every person and no one way is best for every divorcing couple.
Pro Se is Latin for "on your own behalf". When the spouses handle their divorce pro se they do so without any assistance. There are defrocked legal assistants and unlicensed and unregulated folks out there who offer to assist couples who want to handle the divorce without lawyers. This shouldn't make sense to you. If you don't need any help, you don't need a pro se service. If you need help, no one person can help both spouses fairly and without a conflict of interest.
Mediation is a different breed of cat. Collaboration deals with the practices and procedures that help the spouses find the answers themselves fairly and without fighting. Pro se is all about going it alone. Mediation is about a person who is supposed to be neutral act as sort of a referee between the parties as they work it out alone.