Archive for the ‘Collaborative’ Category
This week I am at the Advanced Family Law CLE seminar in San Antonio. Some may be tempted to ask “Why?”, which is a good question. As I sit here with about 500 other lawyers, I ponder my decision to step away from family law yet immerse myself in it this week.
- Keeping my skills up. Legal skills are a good thing to have. The mind needs exercise.
- Reminder of why I’m doing what I’m doing. I’m in for four days of tale after tale of familial acrimony and bitter feuding, plus advice on how to facilitate such conflicts. I’m positively giddy about looking for a job.
- Reminder of why I did what I did. For every tale of vindictiveness and strife there is a story of someone genuinely helped by a lawyer through a difficult process. I am proud to have been part of that system.
- I already paid for it. I got a discount for being a solo, but this thing still ain’t cheap.
- CLE credit. This 4-day seminar gets me 22.5 hours of credit. Since I’ve always been an overachiever where CLE is concerned, by Thursday I’ll be covered through 2015 or so.
- I’m in San Antonio! I’m not sure if this is an argument in favor of or against my attendance :p
This will be an interesting few days. More to follow, I’m sure.
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A friend and colleague sent me a link to an article about adultery issues in divorce cases in Texas. The article, from the Beal Law Firm in Dallas, Texas, addresses issues that rarely if ever come up in my cases, but that got me thinking about how much I value collaborative law and the collaborative process.
A good litigator will always look for the facts or legal principles that will best serve their clients’ interests. At the same time, a litigator wants those facts or legal principles to negatively impact the opposing parties. Litigation is usually a zero-sum game this way; if it helps my client, it probably hurts the other guy. This is often why litigation is such a poor mechanism in many (not all) divorce matters. These are not litigants in a business dispute or opposing sides of an auto accident. These are people who are married, who once felt confident enough to stand up in front of their family and friends and recite vows. When such a relationship ends, as many must, is it ideal to impose a zero-sum framework like litigation? While it may be unavoidable in some cases, I would say no, it is not ideal. The article begins with a thought that could apply to any financial dispute as easily (if not more easily) than a marriage:
When those clients [whose spouses have committed adultery] come in, the first question any creative attorney would ask himself is, “What can I do to gain an advantage and really give the other side something to lose? You want something more than just the threat of a “disproportionate division” using adultery as a fault ground – that’s often not much of a threat. “I’ve got it, there must be a Tort that will work,” you think. Maybe there is.
The article goes on to describe various civil tort claims (claims for injury or negligence) that have been brought against a spouse who has committed adultery, or even against the person who was the other party to the adultery. The gist of the article is that such claims are generally barred in the state of Texas, either by statute or by court ruling.
Make no mistake, it is not for anyone, let alone me, to discount the emotional (and perhaps financial) toll when a spouse has committed adultery. Perhaps the lack of trust that would obviously result would make such a divorce a poor candidate for collaborative law. What this article brings home for me is the type of situation in which the collaborative model would not work at all.
I would therefore add “significant distrust” to the list of situations in which litigation in a divorce is necessary. Elizabeth J. Kates, writing for Collaborative Lawyers, Inc., offers an excellent summary of the types of cases where collaborative just won’t work:
[T]here are cases for which collaborative law is not appropriate. These would include cases involving serious domestic violence or coercive control, elder abuse, child abuse, or mental illness. Additionally, if one party can intimidate the other because of matters other than the issues involved in the case, collaborative law would not be appropriate.
The key is deciding whether any of the above factors present a “point of no return,” where the risks inherent in pursuing litigation in something as personal as a divorce case are outweighed by the risks of trusting the other spouse or leaving oneself open to further abuse or duress by that spouse. I suspect (without any real scientific backing, I realize) that cases where litigation is absolutely necessary are not the norm.
I therefore wish to respectfully disagree with at least one point of the above-quoted article: where the author argues that “any creative attorney” would first ask how to gain an advantage in a divorce case, I believe the first question should be whether looking for an advantage is even necessary.
Last week, I talked about the first of two things you should know about divorce: that a divorce is a lawsuit just like any other lawsuit, with lawyers, judges, document review and (if you’re on television) dramatic background music. Now let’s move on to the second thing you should understand about divorce: that it is unlike any other kind of lawsuit under the sun.
In a typical civil lawsuit, after a trial there is a clear winner and loser: person A sues person B for breaching a contract, and the jury finds for person A and awards him/her damages. In a suit for divorce and/or child custody, there are too many issues and too many “shades of gray” for a simple winner/loser analogy. Suppose a wife and mother “wins” custody of her children, but the husband/father is ordered to pay ½ the amount of child support that she had requested? Suppose each spouse wants the house awarded to them, and a judge orders the house sold and the proceeds split 50/50?
When filing a lawsuit, a lawyer (or plaintiff) must state claims for which a court is allowed to provide a remedy—this could include breach of contract, negligence, assault & battery , and so on. A divorce suit can include claims such as these, such as fraud or assault, but most of the time they present completely different sorts of questions: how to divide the assets (made even more complicated in community property states like Texas), and how to deal with the task of parenting children post-divorce. These issues are very different from those found in any other type of lawsuit.
Another difference involves the parties to the suit themselves—in a suit for, say assault & battery, once the lawsuit is resolved, it is unlikely that the two parties would want anything to do with each other, and there is often no reason to think they would need to see one another again. After a divorce, it may be inevitable that the now-ex-spouses will continue to see one another for some time, especially if there are children involved. If parents of an infant go through a nasty divorce, they still have 18 or more years of interacting with one another in order to raise the child (this of course assumes both parents want a role in raising the child, but courts usually don’t give a parent an out on this issue, and I like to believe that parents will stick around for their kids in some form or another.) The sort of animosity usually developed in a lawsuit does not serve the parties to a divorce well.
In many, but not all, non-divorce lawsuits, a court is being asked to make a decision based on past events, reviewing whether one party is entitled to compensation in some form for a past act. Divorce undoubtedly involves acts and events from the past, but there is a key component that solely involves the future—in particular, the future of the spouses’ care for the child(ren). By taking a divorce and/or child custody dispute before a judge, spouses/parents are asking a stranger, who has never met these people before and may never see them again, to make decisions affecting huge parts of their lives and their child(ren)’s lives. My particular county, Travis County, Texas, has a central docket system , meaning that you may not know for certain who your judge will be until the day of your trial. It is one thing to ask a judge you have never met to decide whether events occurring a year ago constitute a breach of contract. It is quite another thing to ask that judge to decide how best to handle your child’s future summer vacations.
So how can a divorce be handled differently?
I am not arguing that every divorce case should be handled outside of the litigation model. For example, cases of abuse, fraud, or extreme emotional volatility are best handled within the court system.
Collaborative law allows spouses to work out the issues of a divorce in an environment specifically designed to facilitate communication, as opposed to the lawsuit environment. Even in a mediation or settlement conference in a regular divorce lawsuit, the implicit threat of a court hearing is always just below the surface. Collaborative law involves a commitment to conflict resolution—only the spouses and the professionals they have chosen to assist them are involved in the process. Ideally, by the end of the divorce itself, the spouses can still work together on any matters requiring their attention, most obviously their children.
Make no mistake: divorce is an unhappy, emotional process. In the absence of serious conflict, it does not have to be war.
Divorce carries many questions with it: Where am I going to live? How am I going to pay my bills? What’s going to happen to the kids? Who is going to get the [insert asset here]? This is a widely-known and much-discussed aspect of divorce in our culture. Less frequently discussed, or even acknowledged, is that divorce carries many assumptions with it as well: that it is a nasty and brutish process; that it is unpredictable and painful, that it must result in at least one (ex-)spouse being “defeated.” The truth is that none of the assumptions often associated with divorce are inevitable, but in order to avoid many of the worst aspects of the divorce process, there are two fundamental truths you must understand: first, that a divorce is a lawsuit just like any other type of dispute taken to court; and second, that a divorce is nothing like any other dispute seen in a courthouse.
1. A divorce is a lawsuit
I can only authoritatively speak for divorce in the state of Texas, but any where in the United States a divorce is filed like a lawsuit in your local courthouse. In Texas, a divorce case is titled “In the Matter of the Marriage of [Spouse] and [Spouse].” If there are minor children, you tack on “and in the Interest of [Child], [Child], and [Child, etc.], Children.” Some states may even title divorce cases as “[Spouse] versus [Spouse]” the same way a lawsuit arising from a breach of contract or a car accident might be titled.
Once a divorce suit is filed, the spouse filing the suit must have the papers served on the other spouse, who is now the opposing party to a lawsuit. This could be done peacefully, by the other spouse simply signing a waiver acknowledging that they received the divorce papers, but it is often done through delivery of the court paperwork by a process server or a uniformed constable or sheriff. Receiving divorce papers from a uniformed (and often armed) official is rarely a way to begin a rational process of negotiation.
Each spouse may have an attorney or not, but once the suit is filed and service is accomplished, the process of discovery begins. Again, the same rules that govern other civil disputes apply here. If one spouse wants to know what the other spouse has in the bank, they must formally request that information through the discovery process. A party can object to a request as being too broad or too burdensome, or for being irrelevant to the issues of the case. Time that could be spent constructively preparing for post-divorce life could be spent fighting over access to information. Spouses can conduct depositions of possible witnesses, including the other spouse, which are rarely a pleasant experience. If custody of the children is an issue in the divorce, the children will inevitably be drawn into the fight during this stage.
If the spouses can’t agree to a settlement, or if they try to mediate the case but are not successful in resolving some or all of the issues, then there will eventually be a trial . This could be a trial before a judge or a jury, with all the trapping of a courtroom adventure: arguments, examinations, cross-examinations, finger-pointing, and so forth. At the end of the trial, there will be a ruling or judgment, with orders covering each of the issues presented to the court. Unless there is some ground for appeal, the now ex-spouses will be bound by the final divorce decree, just like a verdict or ruling in any other trial.
At this point, it is worth asking how the many issues presented in the course of a divorce can be made to fit into the mold of a civil lawsuit. The simple answer is that they cannot, at least not in a way that allows divorcing spouses to easily move on with their lives. This brings us to the second truth about divorce (TO BE CONTINUED…)