Collaborative Divorce Unknown, Unwanted, or Unneeded? The Underwhelming Advance of a Promising Solution in Marriage Dissolution

Abstract

The traditional model of modern divorce in America involves a lengthy, often toxic, and frequently painful procedure. Divorces drag on for months or years, leaving the parties emotionally and financially drained and, as is too often the case in legal battles, the only people who truly win are the attorneys. The final judgment often marks the effective end of the divorcing parties’ contacts with each other, leaving little to no recourse for future negotiation, making it important to use the most aggressive bargaining tactics possible. Adversarial proceedings compel each side to play their cards close to their chests, as any ground tentatively yielded is likely to be lost forever. Parties’ secrets and shortcomings are publicly trumpeted in the courtroom, sometimes in embarrassing detail. Put simply, divorce can be brutal. In addition to its harsh and unforgiving nature, traditional divorce finds the divorcees in a pitiable state: spouses often have little awareness of what the process will entail, both procedurally and psychologically, before they enter into it. This unfamiliarity can breed fearfulness about the future, leading to a fight or flight mentality, where the parties experience a kind of tunnel vision where they forget the big picture and, focusing on minutiae, make mistakes that can harm their families or themselves. When focused on financial matters, for example, a divorcing spouse might leave off important decisions regarding children, or vice versa. In contrast, a battle-weary spouse might focus too little on important matters and, in an attempt to just be done with the divorce, concede too much to the other side. Plainly, traditional divorce is a minefield. But must it always be so? A sizeable cohort of family law attorneys protest to the contrary, having embraced a new divorce process, called collaborative divorce, that shuns the gladiatorial practices of traditional divorce and aims for a more amicable and equitable parting, one that leaves the door open for healthy future relationships between divorcing parties and their families.Surprisingly, collaborative divorce is still something of a fringe element in family law. Why has it failed to make larger inroads into the mainstream? Some suspect that close-minded, self-interested professionals in the divorce business oppose collaborative divorce. Others claim that collaborative divorce is simply not as good as its proponents purport it to be. Still others seem to have recognized, perhaps only tacitly, that to embrace collaborative divorce might even undermine the necessity of involving attorneys in divorce proceedings.This Article examines these claims in four Parts. Part I defines collaborative divorce and examines its history and growth. Part II describes certain advantages and disadvantages attending collaborative divorce, contrasting these advantages and disadvantages with those of traditional divorce and mediated divorce. Part III explores collaborative divorce’s slow growth and posits certain reasons why it might never meet traditional divorce’s popularity. Part IV proposes reasons why collaborative divorce might, if encouraged, benefit society, and sets forth additional steps that legislatures, courts, and judges could take that would increase public access to collaborative divorce.