Law Helps Divorcing Couples Avoid Combat

 

Often the saddest part of a marriage breaking up isn’t the actual end of the life two people shared together; it’s the bickering, anger and unleashing of grief that take place during divorce proceedings.

This year’s passage of the Collaborative Law Act in Illinois aims to help couples avoid the rabbit hole of despair while breaking apart. But what is collaborative law? DailyNorthShore asked Caralyn Graham, a couples counselor with an office based in Northfield, and Beth McCormack, a partner at Beermann Law who focuses her law practice on complex family law cases.

DNS: Illinois on January 1 passed The Collaborative Law Act, what is it?

Beth McCormack: The Collaborative Law Act regulates the use of collaborative law in the divorce process. Every professional and party involved in the Collaborative Law process must sign a Participation Agreement acknowledging attorneys will be disqualified from later proceedings should the parties not reach an agreement through Collaborative Law. Each participant promises to make a good faith effort to reach a settlement and will voluntarily disclose information and documentation pertinent to the issues through privileged communications.

DNS: What is the difference between collaborative divorce and a litigated divorce?
Beth McCormack: Collaborative Law is a “problem-solving” rather than “positional” approach to divorce. As an alternative-dispute resolution method, it utilizes the specialized skills of various trained professionals to reach resolutions acceptable to both parties. Both parties must retain attorneys from unaffiliated law firms. Participants in the process may include attorneys for each party, coaches who are mental health professionals, child specialists, and a financial neutral.

DNS: Why should a couple go the collaborative route?
Caralyn Graham: Collaborative Divorce seeks to minimize emotional and financial damage by containing issues. Information and support are available from seasoned professionals who guide clients through the pitfalls inherent in the divorce process. Collaborative Divorce empowers clients to build a plan for their family and resolve challenges based on their individual goals and concerns rather than a “win/lose” approach. It is a good option for spouses who wish to end their marriage but retain a high level of integrity for themselves and their family members. It reduces the risk of impulsive decision making and traditional, adversarial power struggles. In the collaborative process, clients retain control over the decision making.

DNS: A couple is a good candidate for collaborative divorce if …
Caralyn Graham:

• They want to build a thoughtful plan for their divorce that suits their family’s specific needs.
• They are interested in harm-reduction rather than going to war.
• They are interested in privacy. Much of the divorce details can be kept out of the public record.
• They are reasonably open minded and flexible. Collaborative divorce is a customized and creative process so spouses do best when they seek to build together rather than use force and gain control.

DNS: Are there any financial benefits to collaborative divorce? Looks like you have to hire several experts – how is that a cost savings?
Beth McCormack:  Collaborative Divorce can be more cost effective than a litigated divorce, but like litigation, it depends on ability to reach agreement. All matters in collaboration are resolved in a series of team meetings, some of which will include all team members, and some may not. For example, coaches and/or a child specialist, may meet with clients without attorneys to create the parenting agreements. All team members will be updated on the status of issues and can be called in if needed. Other times, the financial neutral may meet with one or both spouses on various matters without other team members. The assumption is that the spouses can access the professional(s) who are best suited to address the current topics being discussed. Typically the non-attorney professional fees are considerably lower than attorney fees, saving clients money. Also, there are no court appearances and filings, so those ancillary costs are avoided. In Collaborative, couples are more likely to resolve disputes with long-term satisfaction and feel less need to battle in court for years after their divorce is final, which also saves costs.

DNS: If a couple is experiencing marital conflict but are not sure not sure about divorce, is there anything they can do to determine if divorce is right?

Caralyn Graham: Discernment Counseling is an excellent option for couples who are trying to determine whether to stay together or split up. Unlike marriage counseling, it is a protocol that concludes in four to six sessions, and it is designed to specifically address the viability of the relationship and assess willingness and potential to stay married. Often spouses don’t see the potential for their marriage the same way (one wants to stay, the other considering leaving), and discernment counseling speaks directly to that mixed agenda. Discernment Counseling focuses on containment and informed decision making. Should a couple determine they wish to terminate the marriage, the discernment counselor can educate the spouses on the options for divorce. Discernment allows the couple to make these important decisions less reactively and with as much information as possible.

DNS: If a couple goes the collaborative route, who chooses the other experts such as attorney, child specialist, divorce coach, financial specialist?
Caralyn Graham: More and more, people are calling counselors and financial specialists to get preliminary divorce information, prior to contacting an attorney. A Collaborative Team can be built regardless of whether it originates with a coach, a financial neutral, a child specialist or an attorney. The professionals will provide referrals to the clients. All cases will need two collaboratively trained attorneys, one or two divorce coaches (depending on the family’s needs), and a financial neutral. When parenting issues are complex, a child specialist may be brought in to work with the parents and potentially meet with children to give them a voice in the process.

DNS: How do you know if a professional is truly trained in collaborative divorce?
Caralyn Graham: Some divorce professionals will claim they can do a collaborative divorce, but have not been trained. When interviewing any team professional, ask where they received their training in Collaborative Divorce and ensure they have had mediation training as well. The Collaborative Law Institute of Illinois (CLII) is a wonderful resource for accessing properly trained professionals. Together with the International Association for Collaborative Professionals (IACP), CLII fellows have worked tirelessly to establish guidelines and protocols for collaborative divorce and to establish resources for couples wishing to keep their divorce out of the court system. CLII’s website has a wealth of information and referral sources for both consumers and professionals.

DNS: What happens if a Collaboration isn’t working?
Beth McCormack: A Participation Agreement is signed at the beginning of the case and is meant to encourage the parties to make a more sincere effort to reach a settlement knowing their attorneys would be disqualified from subsequent proceedings should the Collaborative Law Process fail. This typically keeps the couple at the table with the common goal of resolution.

DNS: How are couples on the North Shore using collaborative law approaches to resolve their marital conflict?
Beth and Caralyn: Fortunately, spouses on the North Shore and beyond are realizing that the courtroom is not the best place to resolve divorce-related issues. Families are learning that collaboration affords them the ultimate in decision making. By agreeing to collaborate rather than litigate, they focus on their goals and concerns for divorce, and agree to make a good faith effort to resolve their issues in a cost-effective and pragmatic manner using a team approach. Their individual needs are better addressed and privacy is maintained much more easily in collaborative law.

Beth F. McCormack is a shareholder at Beermann, Pritikin, Mirabelli, Swerdlove, having practiced family law for 26 years. In addition to being a Family Law Partner, Beth serves as a Child Representative as appointed by Judges in Cook County. Beth is also a certified Mediator and Collaborative Law Fellow. She encourages her clients to consider all options in how to get divorced, either in litigation, mediation or Collaborative Law.

Caralyn Graham is a Licensed Clinical Professional Counselor specializing in couples counseling, discernment counseling, divorce coaching and mediation. She is a certified mediator and Collaborative Law Fellow and has served as trainer/educator for divorce professionals in Collaborative Law practices through CLII and other professional organizations. She has been in private practice in her Northfield office for over 15 years.