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I have a prediction: In the next twenty years, Collaborative Divorce will become the standard for divorce process in Minnesota.

In my nine years as a family law attorney, the majority of my cases have been “traditional” in nature.  Traditional in this sense means that the process of divorce starts with a petitioner spouse who serves a summons and petition upon the respondent spouse.  The divorce is either settled along the way or it is litigated all the way to trial.  Sprinkled in for the past five years have been Collaborative Divorce cases, in which both spouses choose to work with a Collaboratively trained team (comprised of two attorneys and sometimes a neutral child or financial specialist) and to resolve their divorce in an out-of-court setting. Both processes end with a divorce, but one often results in collateral damage resulting from unchecked animosity and litigation, often referred to as the “scorched earth” approach.

Most family law attorneys with whom I have spoken really dislike these scorched earth cases. Some attorneys are complicit in these cases for myriad reasons.  These difficult cases, which take place with heavy court involvement, place a tremendous burden on families, on attorneys, and on the courts.  Every case that is filed (and that is not In Forma Pauperis) requires the same filing fee to pay for case oversight. Some cases require only that a judge reviews and signs the final divorce decree, while others languish in courts for years, as court staff oversees countless motions, counter-motions, requests for phone calls, letter submissions, etc.

Many family law practitioners grow weary of endless divorce litigation.  Of unpleasant and over-aggressive attorneys (we all have our own “no-fly” list). Of client despair (“So you’re telling me I might as well give up?!”). Of not being paid.  This work is emotionally taxing.  There is seldom follow-up with clients after a case concludes, even those whom we genuinely like.  After all, who wants to hear from the one person most closely related to the end of their marriage (aside from their ex) after the waters calm?  Who among us has ever felt concerned about personal safety after working a particularly difficult case involving one party with anger management problems (and possibly an affinity for firearms?)

Yet family law practice has its rewards. Family attorneys have unique skills: we are insightful and often empathetic.  We excel at interpersonal communication.  We are problem solvers.  At our best, we are a helping profession: acting as a guide to clients who are in the dark and often feeling very vulnerable.  It is an honor to help our clients through family-related legal problems.  The best way to serve our clients is by helping them to preserve their dignity and to make decisions in a way that will not cause them to feel shame or regret years after their matter is concluded.  While it is not impossible to have a good family law matter in a traditional context, it is never a guarantee.  Cases that start out smoothly can easily become derailed by one misstep: an e-mail that struck the wrong tone (often unintentionally). A poorly timed request. A genuine misunderstanding of intention.  I myself am guilty of misunderstanding and missteps.

I have known many family law attorneys who either stopped practicing law entirely or pivoted to another practice area mid-career. Something obviously needs to change and I believe a sea change is indeed coming.  I sense that the tide is turning in favor of extended ADR and Collaborative Divorce instead of the nuclear approach that takes a pound flesh from all involved (especially the poor children in these scorched earth cases).

As our Collaborative community continues to grow, I am seeing more and more thoughtful practitioners and many younger attorneys attracted to this process that asks everyone to show up in good faith: attorneys, neutrals, and clients alike.  Some matters should not be routed into the Collaborative model.  Obvious exceptions from Collaborative practice include matters involving domestic violence, coercive control, and unacknowledged addictions.  Most families, however, would benefit from the approach that creates a space for active listening, understanding, and slowing down when needed.

If you are reading this and you find yourself battle-fatigued from traditional family law practice or if you are curious about Collaborative practice, I hope you will take some time to reach out and learn about this unique and wonderful multi-disciplinary community of professionals committed to serving families with excellence and integrity.

I hope to still be practicing family law in 20 years; if I am, I know it will be because I have pared down my traditional family law practice considerably and have prioritized Collaborative practice and other forms of ADR.  I will revisit this blog entry and muse on the state of family law practice in Minnesota in 2043, I am certain, with gratitude and hope for families in Minnesota.

Rebecca Randen is a family law attorney and mediator. She practices Collaborative and traditional family law and is based out of Edina, Minnesota. Rebecca speaks Spanish and has represented many Spanish-speaking clients. Rebecca is serving her third year on the CLI Board of Directors and is serving as Board President through the end of 2023.

Rebecca Randen is a family law attorney and mediator. She practices Collaborative and traditional family law and is based out of Edina, Minnesota. Rebecca speaks Spanish and has represented many Spanish-speaking clients. Rebecca is serving her third year on the CLI Board of Directors and is serving as Board President through the end of 2023.

Attorney/Mediator
Randen, Chakirov & Grotkin LLC
rebecca@rcglawoffice.com | rcglawoffice.com

 

 

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It may be tempting to save money in a divorce by drafting a decree with your spouse, or by completing a form decree. This is especially true if it appears that you and your spouse are in accord on all issues. But be warned: unintended consequences can arise months or years after your decree has been filed and entered by the Court.

Once your decree has been filed by the Court and entered by Court Administration, your decree becomes the legal guide for everything related to your divorce: custody and parenting time, support, property and debt division.  On the surface, these issues can seem simple and many couples attempt drafting their own dissolution paperwork without counsel in an effort to save on the investment of lawyers and other professionals.  While it is true that parties are often in the best position to make decisions about what their families need, attorneys are uniquely trained (and perhaps some are even naturally suited) to imagining something their clients may not be inclined to consider: the worst-case scenario.

The worst-case scenario is and should be an ever-present consideration for attorneys as they counsel their clients regarding important decisions that will have long-term impacts on parenting and financial issues. An attorney may be a glass-is-half-full type of person, but he or she has been trained to imagine what could go wrong five years out from a divorce or custody determination.  The worst-case scenario may not be an enjoyable rumination, but it is critically important in drafting strong contracts.

Take Couple A, for example.  Couple A was married for 12 years.  They have an eight-year-old child and they own a home, which they purchased together during the marriage.  Couple A decide to divorce in November and to sell the home in the spring when the housing market is stronger.  They agree to share the closing costs and to equally divide the sale proceeds.  They also decide that they will have equal parenting time, but they do not create a specific parenting time schedule.  Couple A feels pretty good about the progress they are making, and they should feel great – many couples are not able to have fruitful conversations about parenting and property issues in the context of a separation.  Couple A signs and files their divorce decree, which awards the home to Wife, pending the sale of the house.  Husband has purchased a townhome a few miles away.  Couple A is glad to have the divorce behind them so they can focus on their child and on moving forward with life.

What could go wrong?

Let’s check back in with Couple A one year after their decree is entered.  It is late fall and the marital home is still unsold. At the time the divorce was finalized, the realtor recommended repairs that required time and money and the parties were not able to agree on a listing price.  Some offers were made, but the parties felt that the property should sell for more.  Wife has been paying the mortgage for the past year, and the parties have now just received a solid offer.  Wife wants to be credited for reducing the mortgage principal during the year she made mortgage payments and is asking for additional sale proceeds.  Husband does not agree –  he has done some of the repair work on the home and has paid for lawn maintenance.  The decree is silent on principal reduction, and he believes the net equity should be divided equally, as worded in the decree.

In addition, Wife has put in an offer on a home twenty miles away from Husband’s new home.  Wife wants the now 9-year-old to attend school near her new home, in a different school district.  Even though the parties agreed on equal parenting time, Husband has been picking up overtime at work to help offset some of his expenses, so Wife has had significantly more overnight parenting time over the course of the last year.  Wife has hired a lawyer and is threatening to take Husband to court to address school choice, parenting time, and the division of equity from the sale of the marital home.

If Couple A had attorneys, even to simply review their draft decree, they could have included some provisions to address these foreseeable events.  As a family law attorney, I have encountered many “Couple As,” who, with the best intentions, endeavored to divorce without counsel because they believed it would save them time and money.  However, in many instances, these couples overlook important details and pitfalls that a family law attorney will mitigate by including provisions that anticipate change and communication breakdowns.  In the end, these couples have unnecessarily spent significant amounts of money to resolve issues that could have been avoided by addressing them properly at the time of divorce.

If Couple A had engaged in the Collaborative Divorce process and retained collaborative attorneys committed to working only out of court, they would have had conversations focused on problem solving the issues that they later encountered up front. While many divorcing couples can and should make efforts to reach agreements on their own, attorneys offer unique perspective and experience when counseling clients on important agreements.  If you are considering a divorce or have questions about whether the Collaborative Divorce process is right for you (there are many wonderful blog posts on the CLI site explaining why it probably is), contact CLI or browse through the online listing of collaborative attorneys (Find a professional) – most of us offer free initial consultations and love the collaborative work we do.

About the Author:
Rebecca Randen is a family law practitioner and partner at the firm Randen, Chakirov & Grotkin LLC.  She practices collaborative and traditional family law in the metro and greater Minnesota.  She is a lifelong Beatles fan.
www.rcglawoffice.com