Approach can make divorce less of a battle

When Rick McCartney and his wife decided to end their 10-year marriage, neither wanted a bitter, drawn-out court battle.

So they opted for a collaborative divorce.

Though that may sound like an oxymoron, the relatively new approach is growing more popular in El Paso County.

It’s a less combative method in which the lawyers involved see their role as problem solvers — not hired guns — for the spouses they represent. The goal is to settle issues such as child support, parenting time, alimony and division of property without court intervention.

With the collaborative approach, spouses and their specially trained lawyers agree in writing that the lawyers’ sole purpose is to help negotiate an agreement that meets the needs of both parties.

All participants in the collaborative process promise open, honest exchanges of information. They promise not to stonewall, hide documents or take advantage of miscalculations or mistakes of the other side.

The emphasis on cooperation instead of confrontation is more productive, 36-year-old Rick McCartney said. Because the lawyers can’t go to court, they’re motivated to settle, he said.

“It was a good, clean approach,” McCartney said. “I just wanted to get the deal done, and I saw this as incentive to get it done.”

The first collaborative divorce case completed in El Paso County was in 2001, and now more than 100 cases have been completed in the county, said Lisa Dailey, Rick McCartney’s lawyer and chairwoman of the Pikes Peak Collaborative Law Association. More than 4,000 couples file for divorce each year in El Paso County.

“Collaborative law allows people to retain their dignity, to retain their selfrespect and to move forward to create separate households,” said Dailey, who has completed more than 50 collaborative cases.

John Otto, a Collaborative Law Association member, said that although collaborative divorce may not make everybody happy, most people walk away happier than they would if another method were used, he said.

“It’s easy to be a gladiator (in court),” Otto said. “But what generally happens is when you leave court, you’ve created wounds.”

Collaborative law also differs from mediation, in which an impartial third party guides divorcing couples toward middle ground, Otto said. Collaborative clients negotiate their settlements directly, Otto said. Their attorneys are there primarily to suggest solutions and prepare and file the paperwork, he said.

Attorneys have to change their mind-set to practice collaborative law, Dailey said. Instead of worrying about how to argue an issue, how to “win” in court or how a judge will rule, the emphasis is on helping families heal and move on, she said.

Collaborative divorce is usually less expensive than litigating, although there are no guarantees, Dailey said.

Most collaborative divorces cost $2,000 to $5,000 per spouse, Dailey said. The cost depends on the lawyer’s hourly rate, the number of experts involved, the number of meetings required, the level of conflict between spouses, the complexity of legal issues and the number and complexity of documents that must be filed.

Collaborative law works well in cases that involve children and cases in which spouses want to maintain a friendship for other reasons, said Linda Leitz, a financial planner and Collaborative Law Association member. It’s generally not a good idea when the marriage is plagued by domestic violence or one spouse takes a win-at-all-cost approach, she said.

McCartney liked that he and his wife could talk directly instead of through their lawyers.

“It seemed more efficient that way,” he said. “We controlled our own destiny. We solved our own problems. We had the decision-making power instead of the lawyers or a judge.”

It also preserved his relationship with his ex-wife so they could jointly raise their 5-year-old daughter after the divorce, he said.

Parents — not judges or lawyers — should decide how their children’s lives will be affected, said David Johnson, a Collaborative Law Association member.

“The most important thing in any divorce is the future of the children,” he said. “The rest of it is just stuff.”

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COLLABORATIVE DIVORCE PROCESS

At the outset of a divorce, all parties, including attorneys, agree to work toward a mutually agreeable settlement out of court.

The attorneys, and other professionals such as therapists and financial specialists, sign a contract in which they agree to withdraw from representation if negotiations break down and adversarial court proceedings are required. Lawyers for both sides are bound to work toward the fairest agreement for everyone involved instead of just looking out for their own client’s interests.

Couples meet with their attorneys in an informal setting outside the courthouse and work out their differences over such issues as parenting time, money, stock options and pensions.

A judge enters the picture only to sign the final decree after negotiations are complete.