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My Turn: Making the breakup less difficult

By Trine Bech

August 25, 2007
Fifty percent of all marriages end in divorce. Civil unions are now also beginning to unravel. There are many alternative ways to obtain a divorce or civil union dissolution, but unfortunately, most separating couples are unaware of their options. Divorce and civil union dissolution does not have to resemble warfare, where warring parties hire lawyers to fight on their behalf over the spoils of the union -- money, houses, trucks, pets, silverware and, of course, children. And at what cost? Attorneys fees in some divorces are getting outrageously expensive. This makes no sense when alternatives to this destructive battle exist.

Here is what you should expect if you seek advice from a lawyer: An outline of what options you have to get to the end result -- a legal divorce or civil union dissolution. This should include the do-it-yourself divorce called pro se representation, mediation, collaborative law, or conventional legal representation. It is not the lawyer's role to choose for you, but rather to describe the pros and cons of each approach.

Lawyers have the opportunity to fuel the anger of their clients by acting as gladiators in battle, or to assist them to channel the emotional energy constructively to find solutions that meet the family's shared interests. Separating couples now have the choice of using lawyers whose only role is to help the parties find mutually acceptable solutions. It is called collaborative law. In collaborative law:

The divorcing parties act as a general contractor and get legal advice, financial assistance and counseling for the children when they need help in resolving specific issues. They process their own divorce/civil dissolution.

Each party hires specially trained, collaborative lawyers. These lawyers work with the parties in four-way-meetings to help find solutions that meet the interests of both parties. The lawyers cannot represent the parties in court if they are unable to come to agreement on all issues, so there is a built-in incentive for success in finding mutually acceptable solutions.

The clients are in charge of the outcomes. The role of the lawyers is to provide legal advice and to create a process that maximizes the opportunities for agreement. The focus is on restructuring the future rather than recriminations of the past.

The threat of court is removed and instead opportunities for creative solutions are maximized.

It takes less time and costs less than typical litigation.

After many years as a divorce litigator and four years as a Family Court Magistrate, when the Family Court began in 1990, I have seen what happens when you hand over your family decision-making to lawyers and judges. Anger, greed, competition and guilt are all reasons some decisions have to be made by courts, but I believe that most people would rather keep the decision-making power and be in control of the outcome. It makes no sense to leave it up to judges, who have little or no understanding of the history and needs of the family.

Obviously, collaborative law is not a panacea, but when the parties have the capacity to act in their own self-interests, it works like a charm. Why? No matter how good a resolution you find at the time of separation, your needs and the needs of your children will change. You need to have the skills to address the change. Whereas litigation concentrates on how bad you can make the other side look, mutual problem-solving is the core of collaborative law, and the parties involved learn how to identify their options and find mutually acceptable solutions. It is also a much more satisfying way to spend your day as a lawyer. While this approach may not be for all separating parties, it is the only way I will now practice law.

Trine Bech is a consultant, collaborative family lawyer and former Family Court magistrate who lives in Burlington.