There has been some buzz about the new film on Netflix called Marriage Story about a couple, Charlie and Nicole, with a son, Henry, going through divorce. I decided to watch it since this is my area of practice and a prospective client referenced it last week in a consultation. It started with the couple stating all these things they loved about the other person with pleasant images of life together. I was ready for an uplifting movie, until about 8 minutes in, when I learn that the couple is in a divorce meditation session and Nicole refuses to read her list out loud of what she loves about Charlie.The mediator says he likes to start mediation with a “note of positivity” to set the stage for working together. Noble idea, but is that the best way to start? I don’t know any mediators that start that way. I wondered if people now think that is how all mediations start. While I too try to start from a more positive place, I start by asking clients to identify the goals they each have for the process and outcomes so we can see if they have any common visions for the future in separate homes. I am amazed how often people have common goals around their kids and other outcomes and many times support goals that are specific to one person. But I don’t think I would start by asking them to share a written list of qualities they love about their soon to be former spouse. That is more appropriate for marriage counseling. What a different dynamic that sets in mediation. When one person wants the divorce and the other one doesn’t, it starts the process from a place of internal conflict. It was visible in the movie. I just don’t think mediators do that and it paints an inaccurate picture of the process. But, I appreciated how Charlie and Nicole were trying to work together in mediation. Unfortunately, the film spent very little time on the topic of mediation. Instead, at the 20 minute mark, the story moved in the direction of the Nicole, played by Scarlett Johansson, hiring the LA attorney Nora Fanshaw, played by Laura Dern, a sexy, savvy attorney that you want to trust, but your gut tells you, “Not too fast.” When Charlie, played by Adam Driver, goes to find his own attorney, feeling distraught that Nicole suddenly switched directions and hired an attorney, the first attorney he talks to recognizes that Nora is on the other side, clearly knowing how she operates, and says his rate is $900/hr, he needs a retainer of $25,000 and they will need to do forensic accounting for $10,000-$20,000. Everything indicates an expensive, high stakes fight. He then starts asking all these questions to elicit information so he can immediately start strategizing about all these angles to take and “Win!” Charlie realizes what he is walking into, leaves and eventually lands on hiring Bert Spitz at $400/hr, played by Alan Alda, after there is no one else to hire because Nicole has met with all the other “good attorneys” in order to get them disqualified from being able to meet with Charlie. But in the end, reasonable sounding Bert isn’t tough enough against Nora so, Charlie decides to go with the $900/hr attorney afterall. Well, the whole thing devolves into a knock down drag out court battle over money, custody (including a custody evaluation), and the attorneys revealing every dark secret about the other parent and “slinging mud,” in order to convince the judge to rule in their favor. Your heart breaks for Charlie and Nicole, but especially for Henry, caught in the middle. And then I heard my own voice say, “That is exactly why I am a Collaborative attorney, instead!” It is clear that neither Nicole nor Charlie ever thought they would go down that vicious road but what is clear, is that the divorce took on a life of its own. Nicole left everything to Nora to handle and decided not to question how she operated. What was also clear to me was who they each chose to represent them had everything to do with how things went. Charlie and Nicole were not asked what was important to each of them or what they wanted for Henry. From the moment they met the attorneys, the attorneys were building their case, setting up the chessboard and thinking about what moves to make to win the game despite the casualties. Why does that matter? When an attorney can only think in the win-lose mind frame, that they have all the answers and that everything has to follow what they think is the right path, you are giving up all power over your family and your life. Most people I meet with want to be in charge of these major decisions that will impact their life and family. It is important to stop and think about what is important for you, your kids, and your family. You are still part of a family system, even when you are getting a divorce. You are just changing the family configuration, setting new boundaries and expectations, and figuring out how to divide the assets and manage cash flow living separately. Working with attorneys who understand this, who are focused on problem-solving and reaching a win-win outcome out of court, makes all the difference for clients and their family. And if you have two attorneys who trust each other professionally, that is an asset to you and your spouse. The Collaborative Divorce process offers just that: a respectful, transparent, child-focused, problem-solving out-of-court approach for divorce. Ask yourself what story you want your children to say about their parents’ divorce when they are 25? Choose wisely.
In Part 1, vortex was defined as: 1) a whirling mass of water or air that sucks everything near it towards its center; 2) a place or situation regarded as drawing into its center all that it surrounds, and hence, being inescapable or destructible. The second definition provides a visual for what many think a divorce “looks like.” While the end of a marriage is emotionally tumultuous and devastating, the actual legal process of uncoupling does not have to be. But, it is critical that you choose a process that promotes healing. The Collaborative Process does just that. Collaboration is a holistic approach to divorce. It can be utilized by couples who are ending either a marriage or significant relationship, or who have a child or children together. Although some people question whether it is an appropriate process when domestic abuse or mental health/chemical dependency issues are present, many others think it can (and should) at least be attempted. If you don’t want to be another “divorce horror story,” the Collaborative Process will likely be a great fit. Collaboration focuses on the future (i.e., the relationship of co-parenting in two homes) rather than the past (i.e. the vilification of one spouse); is a win-win for both partners (rather than a court-imposed win-lose); and emphasizes the well-being of the entire family. You don’t air your dirty laundry in court, and you aren’t (literally) judged. In fact, you never set foot in a courtroom. The negotiation model is interest-based/win-win, rather than positional/win-lose. You pay attorneys to help you solve problems, not argue and keep you stuck in the past. Every family is unique, so every family deserves a unique solution. And if you have young children, please keep in mind they need you present and available. You can’t be present when you are fighting the other parent in court. In Part 3, we will discuss the various professionals in the Collaborative Process and how their expertise can help you avoid the divortex.
“I am so glad we came in together, this has been so helpful.” This is a comment I hear so often from couples after they come in to meet with me together to talk about their divorce process options. Not all attorneys offer the opportunity to come in together but it is becoming a more frequent offering by attorneys who practice Collaborative divorce. Who each of you meet with before you make any decision about how to move forward when there is a decision to divorce, can make all the difference in how things play out during and after a divorce for you, your spouse and children. Imagine, if one person meets with an attorney that focuses on gathering information (how much your spouse earns, nature and amount of assets, whether you want custody of the children, etc.) and assessing the outcome before you have decided how you will more forward with process (Mediation, traditional court process, Collaborative, etc.). It sets the tone for everything that follows, often times setting up a win-lose dynamic. But is that what you want? Most people want as healthy and positive co-parenting relationship going forward that they can have and want to achieve a win-win outcome. On the other hand, if a couple meets together with an attorney to learn about process options before getting into the details of the assets, cash flow/support, etc., you are focusing on the tone and manner in which you move forward, rather than the positions that can be formulated. Couples can then make a mutually informed decision about how to move forward. And the hidden benefit is that, if that attorney is hired by one of you, you already know the philosophy of the other key person in the negotiation; your spouses attorney. Imagine what a difference that can make in creating a more positive divorce experience. It can be an invaluable decision.
In my Collaborative Divorce practice, I frequently talk to clients about identifying their “interests” in the divorce. This is a difficult concept to understand, but is the key to reaching a resolution in a divorce that meets the needs of all family members. “Interests” are in contrast to “positions” in the divorce. An interest is the motivation or value behind a particular position. An interest is frequently inspirational and may be far broader than a position. A position is a particular outcome. The difference between an interest and a position is frequently illustrated by the following story. Two children were arguing over who would have the last orange in the kitchen. They each took the “position” that the orange should be theirs. Their argument included angry cries of “You had the last orange!” or “I was here first.” Unable to resolve the dispute without resorting to blows, they brought the issue to their mother. The obvious solution is for Mom to slice the orange in half and give each child one-half of the orange. Seems like a good outcome, doesn’t it? But at this suggestion the children were even unhappier. So, instead, she asked each child what he or she wanted to do with the orange. The first child replied, “I want to bake a cake. I need the zest of the orange to add to the batter.” The second child said, “I want to make orange juice.” He needed the juice and the pulp of the orange. Obviously, by understanding the underlying interests of each child, it was determined that both children could get what they wanted—the rind for a cake and the juice for orange juice. In collaborative divorce, this is called a win-win outcome. Win-win outcomes are possible when interests are identified and the interests of all parties are met.