Split Decision, Collaboration is a Gentler Way to Divorce

Syracuse New Times | January 27, 2009
If you think marriage is forever, try divorce on for size. Especially if you have children in common with your soon-to-be ex-spouse. Going to court is becoming passe, and a collection of Syracuse attorneys is trying to get the word out about a new way to divorce. They have introduced a fourth way to dissolve a marriage, one that was devised by a Buddhist lawyer from Minneapolis. Wanting to try something other than litigation, mediation or alternative adversarial negotiation, CNY Collaborative Family Law Professionals formed five years ago, after two Syracuse attorneys ventured to Rochester to learn more.

"I had heard about it,” says attorney Gay Custer, explaining why she decided to look into using collaboration as an option for ending a marriage, “and I’ve litigated for 23 years. It seemed to me to be a process where parties could maintain some dignity and design their own future instead of sitting in the hallway outside the courtroom while two attorneys are in with the judge figuring out their future for them.”

When they got back to town, Custer and colleague Lisa Fahey contacted other matrimonial lawyers to gauge interest. “The matrimonial bar, in Syracuse, seems resistant to change,” Custer adds. “So Lisa and I purchased a bunch of pizzas and invited 20 or 30 people who we thought would be receptive. One of the trainers from Rochester came in to present to the group. Then we hustled to get a training session set up and got enough people to start a group.”

Fast-forward to 2009 and CNY Collaborative just seated a new board, with attorney Dan Cantone taking over the president’s chair from Greg Monashefsky. The group now numbers 30 attorneys, three financial planners and five mental health professionals; those facilitators, as they are called, are ready to assist with the auxiliary issues that divorce presents, both emotional and monetary.

So instead of being assigned a court date, at which time the parties present their case, the attorneys advocate for their clients and the judge ultimately makes the decision, collaboration returns control to the divorcing parties. Through a series of meetings, which generally last between two and four hours several times a month, each party, with their attorney by their side, negotiates the provisions of a separation agreement. When they get stuck, the attorneys are there to nudge, cajole, sometimes argue; but everyone ultimately gets back on track. It sounds like mediation, but it’s not.

“With mediation, the parties appear in front of a mediator, without their counsel, to negotiate an agreement of understanding,” explains Monashefsky, “which is then turned over to their attorneys, subject to their comment and revision. In collaboration, the attorney is right with you at the table.”

Still, collaboration isn’t for everyone and both parties have to agree to it. It requires a level of maturity and trust that some people just can’t muster. They have to sign a contract committing themselves to the process. If the process fails, then the two collaborative attorneys have to step aside, and the couple proceeds with litigation, with two new lawyers.

It’s more carrot than stick to keep the parties moving toward a resolution. “It’s an incentive to the couple to stick in there,” says Cantone. “When we reach impasse in litigated cases, we just leave it up to the judge. In collaborative law, when you reach those tough spots you have to stick in there because the couple doesn’t want to redo this.” Then there are the costs, both financial and psychological.

“If people are investing in two lawyers they’re getting along with, they don’t want to start all over again, they don’t want to have the cost, they don’t want to have the emotional sharing of all this information with somebody new,” Cantone continues. “From a professional standpoint, nothing has affected me like collaborative law. It is so beneficial, it is so positive for people who are going through the worst time in their lives. It puts everyone in the mind_set of we really want to settle, we really want to walk away from this being semi-friendly to each other. We’re probably parents of children and we’re going to be grandparents to the same grandchildren. That’s forever.”

We Are Family

Real life is messy enough without adding divorce to the mix. And for those of you who believe that the best way to avoid the detritus of a divorce is to stay married, uh, welcome to the real world. While New York state marriage rates have fluctuated between 8.6 per thousand total population in 1990 to 7.3 in 2002, divorces have ranged from 3.2 in 1990 to 3.4 in 2002. That is, according to the Division of Vital Statistics, National Center for Health Statistics at the Centers for Disease Control, marriages have outnumbered divorces by a little more than 2-to-1. And while there are no ready statistics regarding children of divorce, when young ones get caught up in the end of a marriage, things can get ugly fast.

John Laub knows all too well how destructive an old-fashioned, adversarial divorce can be. “My parents were divorced, and they went through the standard nastiness, and dragged us kids along. My ex-wife and I didn’t want that, for ourselves, or for our son. We both wanted to get to the end as peacefully as we could, knowing we have a working relationship regarding our son.”

Once he realized his marriage was doomed, Laub confided to a friend at work who knew a neighbor that had divorced using the collaborative option. That put him in touch with Gay Castor. “I went online and read about it and it seemed like a good alternative,” Laub says. At the same time, Laub acknowledges that good communication is key to getting out with some dignity and a sound enough financial footing to start over without, well, starting over.

“If you’re not talking, I don’t know if it’s going to work for you. You have to be committed to it. We coexisted in the same house throughout the process. That was hard, but it helped because we were forced to talk about the issues we had talked about in our meetings. Talking on the phone is OK, but you don’t lose things in translation when it’s face-to-face. Otherwise it’s easy to get annoyed and slam the phone down and call it quits.”

Laub and his ex-wife began with collaboration just about a year ago, and they had a final divorce by June, eliminating the need for the standard 12-month separation, should couples choose to litigate. However, some vestiges of antiquated New York state matrimonial law remain. “I did have to sue for divorce just because my lawyer and I took a lot of the initiative on a lot of the processes,” he explains, “but by then there was no reason for my ex to feel attacked. By then it was just the paperwork. It really worked and it let us get through that and move on. There is absolutely no benefit to let it drag out.”

While Laub and his ex-wife appear to have been good candidates for collaboration, not all cases go so smoothly. Holly Johnson (not her real name) now has a separation agreement, and some rules in writing, but her experience was different than Laub’s. She and her spouse required a facilitator, who not only helped her and her husband, she says, but the attorneys as well.

“He came when we were about 75 percent done,” she says. “Both attorneys recommended it. He met with both of us individually, and then with us as a group. And he showed up whenever we or they wanted him to be there. We needed another party to come in and help us. It enabled us to proceed, rather than to have to separate from the process.”

Mitch Jaffe is a board member and facilitator for CNY Collaborative, a licensed marriage and family therapist whose full-time job is executive director of Syracuse Jewish Family Service. He got involved in June 2007, after 21 years as a therapist. “I got tired of the heartbreak, of having to pick up the pieces of the kids who get chewed up during a divorce as well as the adults when it’s litigious,” he notes. “Litigation ends up amplifying and bringing out the worst in people. Collaboration is a more constructive process, and I was right on board with it.”

The involved lawyers know the law, certainly, but complex tax rules and accounting procedures are best left up to an expert. Leonard Garber, a certified public accountant at Dermody, Burke & Brown, joined CNY Collaborative about 18 months ago, and so far has had to lend his financial expertise to only four cases. “I’m getting involved in a new case right now. I have made some presentations to the board meetings, especially concerning divorce and income tax rules,” he says. “Eventually, they’ll start to realize I should be called in earlier rather than later before it ends up getting really complex.”

In a litigated case with children involved, a law guardian generally gets called in to protect the rights of the child. The mechanism for that in a collaborative case is the mental health professional/facilitator. In fact, the term law guardian is considered passe; these days, the advocate for the children is called “attorney for the child.” “The five mental health professionals who are in our association assist with the communication with the children and a parenting plan that will be acceptable to everyone,” Cantone stresses. “There isn’t a similar type of use of an attorney for the child in the collaborative process.”

And that was a deciding factor for Johnson in pursuing her divorce through collaboration, with her attorney, Maureen Walsh, assisting her every step of the way. She was especially impressed with a Children’s Bill of Rights that both attorneys insisted should be followed. “I think it was helpful to all the parties, the children, myself and my spouse,” she says. “It put a different perspective on things. It wasn’t always followed, but we tried. Both attorneys have children--I didn’t know that at the beginning--and because they are parents, they were sensitive to the rights of the children.”

She also credits the lawyers for their integrity. “The attorneys who participate in this process, there’s something about their ethics. They’re on a different, higher plane, than other attorneys. They have a desire to help all the parties as best they can. I really appreciated what they did, and I appreciated their desire to come to an agreement than was the best for the children and for us.”

Uncommon Counsel

While collaboration isn’t for all divorces, collaborative law isn’t for all lawyers. They need to rethink their attitudes, even toss aside what they learned in law school about defending a client, right or wrong. “Litigious lawyers crank up the process and it becomes a way of trying to destroy your opponent,” Jaffe says. “Somebody wins, and therefore somebody ends up losing. It should be about how best this unit goes on and makes as constructive a life as possible, particularly for the kids. What we have found is that the lawyers who are involved in doing this really have to work very hard to change their mind-set because they’re trained to win and they’re trained in a litigious model.

“The lawyers work very hard to do this collaboratively,” he continues, “to not solve the problems for their clients but to let the clients do it in a way that works for them so they’re in agreement. It’s about trying to strive for a tie. Litigation terms aren’t used here; all the jargon is different.” And, says Monashefsky, the participating attorneys have to have practice matrimonial law for a minimum of five years.

“Collaboration is really the most challenging work I've ever done as a lawyer,” says Cantone. “It calls for every skill of a good attorney, not just aggressive courtroom advocacy. Unlike litigation where judges adhere strictly to the law, attorneys and couples in collaborative law cases have the freedom to be creative and come up with solutions that are way outside of the box and tailor-made to their own circumstances.”

Part of the lawyers’ training is recognizing which divorces would not make good collaborative cases. “The single greatest disadvantage one party faces is if there’s a dominant personality in the marriage,” Monashefsky notes. “There’s nothing then to level the playing field. It doesn’t have to be emotional. It could be knowledge, such as one person controlling the finances throughout the marriage. And sometimes the format simply doesn’t work. You do have to pull the plug sometimes. I’ve had four failures. You try in your first couple meetings to best determine which avenue is going to be the best. Because we want this to succeed we try very hard to make these cases work. There isn’t a lot of personality conflict through this process.”

While Custer, who introduced local lawyers to collaborative law back in 2003, is pleased with the way the practice has progressed, she still believes there is a long way to go. “I don’t want to sound negative,” she says. “I’m happy with where we are, but I think we have a long way to go. I think we need to better train ourselves, to incorporate the other disciplines more frequently. And I think we need to look at this as not one of the options, but the best option for many people.

“It’s a hard transition to make, and I find these cases more challenging because they require that I think outside the box. And I love it! In my first collaborative case I was sitting with fellow attorney Patricia Ramsdell {the group’s new vice president}, and I looked across the room at her, and I thought, we are competing to get to the same place. That was a real epiphany for me. What a better way to do this than spending money in court.”

And money is a huge factor in all of this, especially with the reality of setting up two households, sharing expenses and most likely paying child support. Cantone remembers handling one divorce, with no children, that wound up costing $120,000. “That was the turning point for me,” he says. “Why, in a childless marriage, when you’re fighting about stuff and money, you’re going to spend $120,000 in legal fees? It seemed absurd and now that I’m a collaborative attorney, it’s even more absurd.”

While he says that it can cost more than $10,000 for a collaborative divorce, most litigated dissolutions cost five times that. “Collaborative cases tend to get done quicker, you can schedule meetings every two weeks if everyone is available. With litigation, sometimes you’re waiting three or four months between court days, with not a lot getting done in the middle.”

When she was a practicing attorney, Martha Mulroy was part of the collaborative group. Now that she’s a Family Court judge, dealing with custody and visitation issues for children, she sees the value of the method even more. “It’s constantly about communication and bringing the parties back to the children,” she says, reminding them that this isn’t the forum to continue the hurt but to progress the healing.

“I tell people in my courtroom, ‘I’m just a stranger in a black robe and I will decide this case. But wouldn’t it better if the two of you who know this child better than anyone decide his or her future?’ Sometimes that hits a nerve. They’ve got to get past their feelings for the other person in order to do that. The common denominator is the child.”

According to the Office of Court Administration, 98 percent of all divorces ultimately get settled, with the remaining 2 percent going through with a full-fledged trial with a judge deciding the parties’ future. “There are parts of New York state in which divorce judges don’t hand down any decisions in a year,” says Cantone, who made his final appearance in Family Court on Jan. 14. “What we’re faced with is a system that is trying to compel people to settle but having to go through the judicial system to make that happen. Collaborative law from day one is putting people into a feeling that they really want to reach an outcome that they can both live with.”

The public is invited to attend the monthly board meetings of the CNY Collaborative Family Law Professionals. They are held the second Thursday, 12:30 p.m., in the first-floor conference room of 1 Park Place. For more information on the group, visit www.cnycollaborativepractice.com.

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