Divorce is undoubtedly one of the most emotionally and financially difficult events in a persons life. Most of us have heard horror stories about custody battles and protracted litigation, or, perhaps, have experienced this first-hand. As divorce has become, unfortunately, more prevalent, the legal system has struggled with ways to minimize the impact of divorce, especially where children are concerned.
Most people realize that divorce has a long term effect on children. What some may not realize is the extent of the emotional impact of a protracted and contested divorce on even small children. The following are quotes from children aged 4 to 6 who were asked to share their thoughts on divorce and on lawyers and to give suggestions to divorce lawyers and judges:
- Divorce is when you pay lawyers a lot of money to wreck your family.
- Lawyers can be good and bad. They help people and give them tips, but they take a lot of money.
- I would tell (the lawyers) to make Mommy and Daddy get along. I’m too little. I can’t. If they can’t, then don’t stretch it out please.
- Keep that grey tape in the court hall so that they don’t say stuff that hurt’s people’s feelings.1
In a collaborative divorce, the parties seek to minimize the amount of pain experienced by children and parents by agreeing not to go to court and instead to participate in a series of negotiations to address all aspects of their divorce. The parties agree that all discussions and information provided remains confidential The parties are not permitted to use threats of litigation, custody or otherwise. The parties are permitted to withdraw from the process, but, if either chooses to do so, both lawyers are prohibited from representing the parties in any divorce proceedings. If the parties reach an agreement, their lawyers prepare the necessary papers to finalize the divorce.
Collaborative lawyers are specially trained to work with their clients in this process. The parties and their lawyers also decide whether additional support professionals should be included within the collaborative team. These individuals are also trained in collaborative practice and assist with questions concerning finances and children. In addition to a financial advisor and a therapist, parties can also include a child specialist in the process.
In many situations, the children will be heard in the process through the child specialist, but will not participate directly. Even in cases where there is a minimal level of conflict, it may be in the children’s best interest to be kept out of the collaborative meetings. Having children attend one such meeting, even in a neutral non-adversarial setting, can place the children in the uncomfortable position of having to choose sides. By having the children speak to a child specialist, parents can give their children a say in the process without placing them squarely within a situation that may be too emotionally difficult for them.
Clients often question the cost of this process. Cost is a huge factor for most couples as they divorce. In a traditional divorce, litigants’ often have little or no over legal bills once the litigation template becomes the engine of their divorce. Litigants are completely unable to control the time their lawyers spend waiting in court to be heard, the volume and length of correspondence exchanged between counsel, or the extensive Pretrial discovery, required by the Court, but often not particularly needed by the clients.
NOTES: 1. Listening to Children in the Collaborative Process: Huddart, Judith L. and Demson, Sandra R., Journal of the International Academy of Collaborative Professionals, Summer, 2005
Lori Barkus is a Supreme Court Certified Civil Mediator, a Family Law Mediator and a Collaborative Divorce professional who practices in the areas of Marital and Family Law, Collaborative Divorce and mediation. She is a current member of Collaborative Family Lawyers of South Florida.
——————————————————————————–
For more information on collaborative law, see the website of Collaborative Family Lawyers of South Florida for information about the local association and its member lawyers in Broward and South Palm Beach County.