While it is my bias that most divorcing couples can benefit from using the collaborative divorce process rather than going through divorce litigation, there is absolutely a subset of couples for whom litigation is the better choice. This post will list some of the issues or dynamics that may be present in cases that should lead collaborative professionals to refer potential clients to a family law litigator.
The first thing to say about the list below is that the items listed need to be significant, pervasive or both for a case to be patently wrong for the collaborative process. As discussed more fully below, the token presence of one or more of these issues should not necessarily automatically rule a couple out from the collaborative divorce process.
But here are things to watch for carefully:
1. History of Pervasive Lying by Either Party – If a potential client talks about how he/she or his/her spouse has, for example, secretly run up a great deal of credit card debt without the other spouse’s knowledge, or cashed out a retirement account behind the other spouse’s back, these are very likely reasons to refer the case to litigation. Similarly, if one party has engaged in multiple extramarital affairs over time, that is likely a reason to rule the couple out because the process relies on a certain degree of honesty and fair dealing that the party has demonstrated he or she may not have. I typically do not rule out cases if there have only been isolated incidents of relatively inconsequential dishonesty, but I instead watch for patterns. If one spouse seems to move through the world in a sneaky or dishonest way, I always refer the case to litigation. Even when there have only been isolated incidents of dishonesty, I talk with my client and the rest of the collaborative divorce team about how we need to be extra vigilant around full disclosure, document production etc.
2. Inability to See Another Perspective – This oftentimes looks like garden variety immaturity in a potential client. Clients who cannot see any other perspective but their own tend to feel competitive when you talk with them. They are quick to list all of the problems their spouse has (often including the client’s psychological diagnosis of their spouse’s pathology) and all of the reasons why the other spouse is responsible for the divorce. To assess for this issue, I will often ask potential clients to tell me what their spouse would say is the reason for the divorce. If the client cannot at least partially own his or her own role in the couple’s unhelpful dynamics, I will very likely refer the case to litigation. Collaborative divorce’s “North Star” is a mutually acceptable durable agreement, and if the potential client cannot see that “mutual” includes both the client and his or her spouse, the process cannot work. Again, we are not aiming for full blown enlightenment here, but clients do need to show at least a modest ability to see outside their own experience or else the judge needs to make decisions for them.
3. Active Domestic Violence – Clearly, the parties cannot effectively work toward a shared agreement if one of them is willing to be physically violent with the other. Again, collaborative professionals need not be overly reactive here either. One isolated push that did not result in injury that happened in the heat of an argument months or years ago, to my mind, does not constitute active domestic violence that would force a couple into litigation. Instead, the professional should assess whether there is a more pervasive dynamic between the parties where the abusing party will pressure and threaten the other party outside of team meetings to do whatever he or she wants, and the other party then feels pressure to capitulate to preserve his or her safety. If that dynamic is present, the case definitely needs to be in litigation so that the victim has the protection of the court system.
4. Untreated Substance Abuse – Potential clients in the throes of active addiction can rarely make good reliable choices or decisions, a skill that is indispensable in the collaborative divorce process. However, if a party has begun drinking too much in recent months as an unskillful way to cope with the stress of the divorce, I would not necessarily rule him or her out for the process on that basis alone because the support and closure that comes with collaborative divorce often allows clients to return to a healthier place. Again, assessment around this issue is more of an art than a science and collaborative divorce attorneys should develop good relationships with mental health professionals to help them think about this issue when it comes up with potential clients.
5. Untreated Mental Illness – Depending on the specifics of the untreated mental illness, the process will likely go awry for a number of reasons if one or both of the parties suffers from an untreated mental disorder. As with untreated substance abuse issues, collaborative divorce attorneys should rely on licensed mental health professionals’ advice when this appears to be an issue for a client. For example, if one party is struggling with mild depression or anxiety related to the divorce, I would not rule that client out for collaborative divorce based on “untreated mental illness,” although the team (and especially the coach) would want to work with the party to be sure he or she starts to see a therapist or otherwise accesses emotional and psychological support.
In sum, for all of the items listed above, my driving question is: Can this person, with proper support and guidance, reach a mutually acceptable durable agreement on all of the issues in the divorce? If there is an immovable roadblock to that result, the case needs to go to litigation so that a judge can make a decision and impose it on the parties.