Amicable Divorce: Not Always an Oxymoron (just ask Ben & Jen)

04/14/2017 03:06 pm ET

This post was written by my Sodoma Law colleague, Family Law Attorney Robin M. Lalley.

As I write this, Ben Affleck and Jennifer Garner have just filed for divorce, nearly two years after announcing their separation. Over the past two years, they have been spotted together with their three children on numerous occasions, as they vacationed together and even continue to both reside on the family property. From an outside perspective, this would seem the very definition of an “amicable” divorce, and it’s an approach on an upwards trend.

Even if it doesn’t feel like a possibility at this moment, choosing a process for your separation and divorce that consciously looks to avoid the adversarial approach to dealing with all of the issues that traditionally come with the territory might allow you to achieve the goal of an amicable divorce. One approach that is quickly picking up steam is called Collaborative Law, also referred to as Collaborative Divorce.

What exactly is Collaborative Divorce? In North Carolina, where I practice, Collaborative Law itself is something that is provided by North Carolina General Statute. The statute states that Collaborative Law is “a procedure in which a husband and wife who are separated and are seeking a divorce, or are contemplating separation and divorce, and their attorneys agree to use their best efforts and make a good faith attempt to resolve their disputes arising from the marital relationship on an agreed basis. The procedure shall include an agreement by the parties to attempt to resolve their disputes without having to resort to judicial intervention…The procedure shall also include an agreement where the parties’ attorneys agree not to serve as litigation counsel, except to ask the court to approve the settlement agreement.” In the statute itself, you see the words “good faith” and “agreement,” which are very encouraging in the divorce context. So, if this process is available and supported by statute, why aren’t even more divorcing couples pursuing this as an option?

I see two main reasons: first, that there is a lack of awareness of Collaborative Law as an option; and secondly, that often one or both parties to a divorce are angry, hurt, or unable to sort through their emotions to focus on what may be best for their situation long-term. All of those emotions are completely understandable, especially when there has been infidelity or fighting for a long time between the parties. If someone goes to see a family law attorney for a consultation and they are focused on their anger, or getting revenge on the other side, they are far less likely to be receptive to the suggestion to try an amicable divorce process. Simply put, Collaborative Law may not be right for everyone. However, it is worth taking a step back to try and take an objective look at the situation. While someone going through a divorce may be angry, a contentious divorce can be financially and emotionally draining and may leave them more angry or bitter than when the process started.

Now that we have identified a baseline for the Collaborative Process, why should someone consider it? Collaborative Law allows a person to take a front seat to their divorce, by working with their spouse to collectively and creatively come up with solutions to the separation and everything that entails. Instead of a judge, mediator, or arbitrator saying what is best for them and/or their family, both parties get a say in everything that happens. Not only do both parties’ attorneys still work for their own respective clients and look out for their individual best interests, but they also have a duty to move the process forward and attempt to reach a settlement.

As cited in the statute previously, if parties are unable to reach a resolution through the Collaborative Law process, the attorneys are not allowed to represent them in any litigation needed to resolve the issues should settlement not work. If a settlement cannot be reached, then the attorneys for both parties must withdraw. The purpose is to the eliminate an attorney’s interest in filing a lawsuit and starting litigation as a next step should they not like what is happening in the Collaborative Law negotiations. There is no benefit to the attorney should the process not work because they then lose the client and any further fees they would have charged related to litigation. The party also has to start anew with new counsel, which means additional fees and more time invested. Everyone involved in the collaborative process has a stake in making sure the process works. This is why it is essential for both parties and their attorneys to actively participate in the collaborative process.

While there are never any guarantees that a certain approach to a separation or divorce will be successful, those who have been through the Collaborative Law process would probably say that this approach is more likely to result in mutual success for both parties and a more peaceful resolution two of the top goals. While Collaborative Law isn’t always so simple and straightforward, if you are hopeful for that “amicable” divorce, then this is an approach worth considering.

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