In collaborative dissolution cases, this is a common objection when meeting for the first time with clients. Another variation is, “I can be a terrific co-parent, just not with my spouse.” I am often stymied by this reaction. Of course, I know nothing about the other spouse except the views of my potential client.
My initial response is to acquiesce and to reject the collaborative approach. But depending on the circumstances, both spouses bear the risk of escalating litigation.
A better approach is to persuade the spouse in my office of the advantages of the collaborative model, especially if the couple has trouble communicating. They may have misperceived the resistance of the other spouse. I consider the context. The couple has typically been working toward a break-up for a long time. They have often taken strong positions based upon strained communications. I encourage the spouse to review the open communications features described in the Participation Agreement.
For example, in four-way meetings with clients and attorneys, both spouses can be safely heard without the risk that their words could later be regretted. In addition, the spouses themselves can set the pace of the process rather than be bound by judicial deadlines. This may be persuasive in cases where one spouse is more eager to end the marriage. Resolution is often facilitated when some issues are allowed to “percolate.”
Another advantage of the collaborative process is cost savings. Initially, this seemed to me to be counter-intuitive given the potential number of team members and meetings. But when the alternative is communicating exclusively through the attorneys, these meetings are a bargain.
If a client in my office expresses a favorable view toward the collaborative process, another approach is to communicate directly in writing with the “stubborn” spouse. The correspondence always contains the caveat that I represent only their spouse and I recommend they obtain their own attorney. I include a general discussion recommending the collaborative model and provide IACP literature and brochures.
The letter accurately states that the vast majority of all divorces are resolved through settlement. A major advantage with the collaborative process is the emphasis on preserving future relationships (especially where minor children are involved).
In discussing the problem of the stubborn spouse, one of my colleagues gave me permission to share the following experience.
He consulted with a woman who was knowledgeable and favorably inclined towards a collaborative divorce. But she was adamant that her husband was too stubborn and controlling to ever agree to anything she suggested. Nevertheless, she agreed that he could send her husband a letter recommending the collaborative process. The letter was down-to-earth and explained the practical benefits of enhanced communications and interest-based negotiations.
To his client’s surprise, her husband agreed to give it a try and requested a referral to another collaborative lawyer. As it turned out, the collaborative process proved successful.
The take-away for both collaborative professionals and clients is to continue exploring this option even when confronted with resistance from a stubborn spouse. The process of reaching agreement is facilitated when couples can meet on their own terms. Also, clients are often attracted to the collegial format. If a resistant spouse is on the fence, share with them Father Frances Fleming’s sage advice, “Love your enemies. It drives them nuts.”
About the Author
Gregory R. Solum, Attorney at Law
My goal is to guide my clients to their destination in a manner that is transparent, fluid and valuable. General Practice of Civil, Family, Probate and Appellate Law since 1980/ Mediator (including Family Court) since 1995/ Collaborative Team Divorce since 2000/ University of Minnesota Law School Instructor 1991-2009. www.solumlaw.com
