From the Articles

Collaborative Divorce – A client’s story

Written by a client of mine and shared with client permission. All names and personal references have been deleted.

What kind of divorce do you want? It’s not the kind of question that a person normally asks themselves. Most of us plan our careers, marriages and kids but I’d bet most people do not spend time planning their future divorce. People only start fantasizing about divorce when they begin to realise that there is no other option.

There are two obvious reasons for this: one being that divorce is not considered a successful aspiration in life and the other is that many people suddenly find themselves in the midst of divorce proceedings without really knowing how they got there.

A small minority of divorces are initiated by couples who have mutually agreed to proceed in a cooperative manner. In most cases, one person in the relationship reaches a breaking point and decides to initiate a divorce. As it only takes one person in the marriage to do this, a considerable number of people are surprised to suddenly find themselves in the midst of a divorce. When one partner in a marriage initiates a divorce, it is common for one partner to be very angry and even more common that both are.

When two people find themselves in a situation where they are angry, upset and out for revenge, they are unlikely to be searching for a solution that has the word collaborative in it.

This happened to me. My ex-spouse applied to the court for a divorce without telling me.

When I found out I was both devastated and out for retaliation. All I could envision was something that looked like a court scene out of a legal television series. Me on one side of the court and my ex-spouse on the other trying to one up the other with our attacks and parries. I have come to realise that court is not like this. What really happens is that you spend months and thousands of dollars preparing legal affidavits that you file with the court. The actual court proceedings can last anywhere from thirty minutes to week long trials but in the end the decisions are made by a busy judge that has limited time to get to know you and has to base a decision on the affidavits that have been submitted.

My ex-spouse and I were lucky in that we were diverted from the court path. Since the Family Law Act of British Columbia came into effect on March 18, 2013, family lawyers are now required to inform you of the different options available to obtain a divorce. A friend referred me to a lawyer that practices Collaborative Law and that lawyer, whom I ended up hiring, advised me on how a Collaborative Divorce could work for me in my situation.

As Daniel Zack of Kahn Zack Ehrlich Lithwick LLP in Richmond succinctly puts it:

“Would you rather fight fire with fire or fire with water?”

That is the difference between the court approach and the collaborative approach.

In the court approach to divorce, each side gathers and documents evidence against the other party to win the war. If you go this route then you are constantly being reminded of the negative aspects of your soon-to-be ex partner. You will be living in a state of anxiety and anger while completing this process and at the end of it a judge decides the outcome and your future circumstances based on which side presented themselves better. In a court divorce you will be in conflict with your soon-to-be ex spouse for the entire length of time it takes to finalise your divorce. This conflict does not magically disappear when the divorce is finalised either.

In the collaborative approach to divorce there is no judge who decides your entire future. In the collaborative approach, each party determines what the best personal outcome is and both lawyers help each person obtain those outcomes. My ex-spouse’s lawyer Nancy Cameron helped me elucidate what I wanted in my life going forward and my lawyer Karen Redmond helped my ex-spouse. Of course our own lawyers helped us individually as well.

The one outcome I wanted above everything else was for my children to be ok. I had stayed in a bad marriage so my children would not suffer through divorce so I was determined to find a way to divorce that would not do more emotional damage to my children.

We were a high conflict couple and within nine months from the date my ex-spouse had filed for divorce, we had a draft separation and parenting agreement, which we signed shortly thereafter. It wasn’t all rosy and sunshine and light, which is what some people might think when they read the word collaborative. Some people might rule out this type of divorce because they cannot imagine collaborating with their soon-to-be ex spouse.

My ex-spouse and I are living proof that Collaborative Divorce works in high conflict situations. I have gone from being a person that found it difficult to be in the same room as my ex-spouse to a person that can stand and chat amicably to my ex-spouse while we watch our son’s soccer game. My Collaborative Divorce got me divorced and changed my entire life. I have become a different person that operates in a collaborative manner in all areas of my life as much as possible as I have first-hand knowledge of how it creates positive results in life.

This is what you get when you have a Collaborative Divorce:

  1. You get to decide how your divorce proceeds including the pace and the focus on issues that are important to you.
  2. You and your spouse have the option to each get a divorce coach to help you if you need it. The divorce coach helps a couple come up with a parenting plan. Divorce coaches are certified mental health practitioners who have dedicated their practices to help families come up with parenting solutions. Being counsellors, divorce coaches can also help support you through the extremely emotional roller coaster ride that divorce is. This is quite different from having a judge who does not know you impose a parenting schedule. Did I mention that divorce coaches cost about a third of a lawyer and they are trained parenting specialists?
  3. You have the option of hiring a child specialist if you think your children need extra help with the divorce process. If you go the court route, you might be forced to hire the same specialist but this time you will have to pay the high court price of doing this. Under Section 211 of the Family Law Act, the court can order an assessment to determine the children’s wishes, needs and the ability of each parent to meet those needs.
  4. You have the option of hiring a neutral financial specialist to help you and your ex-spouse determine the best way to split family assets and determine child and spousal support. You and your ex-spouse get to decide the best option based on your own personal values and goals. If you go the court route, a judge decides after having known you for about thirty minutes.
  5. You and your ex-spouse each engage a lawyer trained in collaboration to help you draft your separation agreement. Catherine Hurlburt, Senior Financial Planner at Assante Financial Management Ltd, gives this analogy: Each party to a divorce hiring a collaborative lawyer is similar to a buyer and seller each hiring a real estate agent. Just like the two real estate agents want the property sale to go through, the collaborative lawyers want you to have a signed separation agreement. Everyone wins in this scenario. You are paying your collaborative lawyer to make this happen. Your ex-spouse’s lawyer is going to work with you and vice versa to help make this happen. I’m not sure if you can say the same for a court divorce. In that case you are paying your lawyer to win at all costs and that is an expensive option.

At the end of the day, a court based divorce and collaborative divorce will get you the same final outcome. A court approved divorce. But the path your life will take post divorce is radically different.

The Collaborative process is a process in which you and your lawyer and your ex-spouse and his or her lawyer meet in four way meetings to create a separation agreement. If you have hired coaches, this process is repeated to create a parenting plan. I know when I was going to four way coaching meetings and four way legal meetings about once a month I found the entire process painfully slow and frustrating. I wanted to be done and I did not want to have to spend so much time being nice to my soon-to-be ex.

This slow approach with well-spaced meetings is very different to a court divorce. In a court divorce you have a lot to keep you busy: affidavits fly back and forth between your lawyer and your ex-spouse’s lawyer. You have strategy appointments with your lawyer and you spend hours potentially coming up with more evidence for your affidavits. None of this is very pleasant and it keeps you in war mongering mode.

Collaborative divorce slows down the pace and allows you to discover what you want for your future. This slow process gave me the time to understand how time and collaborative meetings work better than yelling and fighting. Who does it work better for? Me, my ex-spouse and my children. I can almost feel the stress eating away at my heart muscle when I am in conflict with my ex-spouse. The year spent in Collaboration with my ex-spouse was the year I learned to communicate differently and post-divorce I feel the proof in my life as that feeling of hope that I have reclaimed in my life.

Now what kind of divorce and future do you want? One in which you have hope and dreams again and one in which you can work out future issues that crop up with your co-parent? Or do you want the divorce in which you are sifting through the ashes of your recently court decided divorce, hoping to find something that reflects your values and dreams, knowing that any future decisions with your ex-spouse will likely be decided on the battlefield of court again?