Divorce the Collaborative Way. Is It the Way For You?

Understanding What’s Unique About a Collaborative Divorce In a collaborative divorce, the method you use to negotiate the terms of your divorce, the environment within which you conduct your negotiations, your negotiating mindset, the range of options you have for resolving the issues in your divorce, and the kinds of support and assistance you’ll receive throughout the process are very different from a litigated divorce. This section explains those differences. Going to Court is Not an Option At the very start of your collaborative divorce, you, your spouse and your attorneys will sign a Participation Agreement. When you sign it you’ll be committing yourselves to negotiating the terms of your divorce rather than going to court -- you’ll even be agreeing not to threaten one another with a court action -- and you’ll be acknowledging that you understand that if you and your spouse can’t settle the issues in your divorce and want the court to decide them for you, your attorneys will withdraw from your case and the two of you will have to hire new attorneys. The Everyone Will Play By the Same Rules section later in this chapter discusses the Participation Agreement and you’ll find a sample agreement in the appendix to this book. Going to court is always an option in a litigated divorce. It’s the hammer that you and your spouse will hold over one another’s heads in order to try to get what you want from your divorce. For example, if your spouse threatens to take you to court you may feel that you have no option but to go along with what he wants from your divorce because you can’t afford the cost of a trial and/or because you don’t want to experience the emotional stress and strain of a trial. You and Your Spouse Work Out the Terms of Your Divorce Together In a collaborative divorce, you and your spouse (not your attorneys alone) will negotiate the terms of your divorce during a series of team meetings (also referred to as joint or collaborative meetings) with the help of your divorce team -- the two attorneys and the neutral mental health and financial professionals. In other words, the two of you will have the leading roles in your divorce and your team members will be the supporting players. In a litigated divorce, the two of you will most likely take a back seat to your attorneys because they will do most of the negotiating for you. The members of your collaborative divorce team will help you and your spouse reach a negotiated settlement by: • Explaining the differences between interest-based and positional negotiating and teaching you how to negotiate with your spouse based on your interests. We explain the differences between these two kinds of negotiating in the next section of this book. • Organizing your negotiations. • Creating an environment that makes you feel safe stating your opinions, sharing your concerns, and advocating for your own interests during your negotiations. The You’ll Feel Safe section later in this chapter provides more details about this feature of a collaborative divorce. • Helping you define and prioritize your divorce interests or goals. • Ensuring that you have and understand all of the information you need to negotiate the terms of your divorce. • Helping you brainstorm solutions to the issues in your divorce, evaluate them, and choose the best ones. • Helping you manage your emotions so they do not get out of control and complicate your divorce. You Negotiate According to Your Interests, Not Your Positions Normally in our society we resolve our disputes through a process referred to as position-based bargaining, which involves each party in a dispute staking out a position on the issue they disagree about and then doing whatever they can to advance that position. This is how it’s done in a litigated divorce. Here is a silly, simplistic example of how position-based bargaining works: Susie and Bob Shaw are involved in a litigated divorce. They both want to exit their marriage with the only orange that is growing on the orange tree in their backyard. In other words, they have both taken the position that they want the orange. As a result, in their divorce, one of them will lose -- not get the orange -- and one of them will win -- get the orange. There are some serious drawbacks associated with position-based negotiating, including: • It tends to inflame the emotions of the parties to a dispute, making it more difficult for them to resolve their differences and increasing the likelihood that they will end up in court. • It causes the parties to become more entrenched in their opinions and less willing to appreciate each other’s points of view, which makes compromise difficult, if not impossible. • It fosters a win-lose mindset, i.e., if I am going to win, you must lose, when in fact there may be a way for both parties to be “winners”. In a collaborative divorce, you negotiate the terms of your divorce according to your interests (your individual interests, the interests you and your spouse may share with one another, and the interests of any young children you may have) rather than your positions. Your interests represent the needs you want to satisfy through your divorce agreement. They are the whys behind your positions. The members of your team will help you define your interests before your negotiations begin. Their help can be invaluable because when you are getting divorced your emotions can make it difficult for you to figure out what you really need. Interest-based negotiating makes it easier for you and your spouse to come up with win-win solutions to the issues in your divorce -- solutions that are acceptable to both of you. Continuing with our orange example, here is how Susie and Bob Shaw might resolve the issue of what to do about the orange on the tree in their backyard if they were getting a collaborative divorce: The members of their divorce team ask Susie and Bob to explain why they want the orange -- to state their interests in the orange, in other words. Bob says he wants the orange so he can eat it, while Susie says she wants it so that she can use the orange rind in a cake she is going to bake. After identifying their interests in the orange, Bob and Susie are able to identify a solution that satisfies them both -- Bob will get all of the orange pulp and juice and Susie will get all of the orange rind. Figure 2.1. further illustrates the differences between the two different approaches to bargaining by providing examples of statements you might make about a particular issue in your divorce depending on whether you were trying to resolve it according to your positions or your interests. Figure 2.1, Position-Based Versus Interest-based Statements The following statements help illustrate how you would frame the same issue depending on whether you were resolving it through position-based or interest-based negotiating. Issue #1, Spousal Support Position-based statement: I want my husband to pay me $4,000/month after we are divorced. Interest-based statement: After we are divorced, I would like financial help from my husband so that I can upgrade my job skills and qualify for a well-paying job. Issue #2, Time With Your Children Position-based statement: I want custody of our children. Interest-based statement: I want to continue to be actively involved in the lives of our children day-to-day and to spend a meaningful amount of time with each of them every week. For example, I want to be able to get them ready for school in the mornings and to help them with their homework at night. I don’t want to have them just on weekends. Issue #3, Division of Your Marital Assets Position-based statement: I want our family’s Lexus SUV, not our Honda Civic. Interest-based statement: As a realtor, I need a comfortable, roomy vehicle for my clients to ride in when I am showing them properties. Joel and Cindy Curtis are getting a collaborative divorce.