Resolving Separation And Divorce
By Gary Direnfeld, MSW, RSW
Some 20 years ago it used to be that referrals from family lawyers were only
for custody and access assessments long after the negotiation flowed into litigation.
If there were business entanglements, business valuators were brought in from
both sides to duke out their numbers in the court arena. If like the song, “love
is a battlefield” then court was the slaying ground.
Then early within the 1990’s there was quite a proliferation of mediators;
those folks who would work with both sides to reduce the risk of litigation,
be it for determining the ongoing care of children or sorting out financial
matters. However, in those early years, the mediators were often met with disdain,
particularly from the litigators. Turf wars?
As the 1990’s moved on, the writing was on the wall that what the custody
and access assessors recommended would likely be ordered by the courts. As such,
there was a rise in requests for assessors to act as arbitrators. After all,
why pay $20,000 - $100,000 for a trial if the outcome was likely going to be
determined by the assessment anyway? From there the referrals for child related
matters took on the form of mediator-come-assessor-come-arbitrator and parenting
coordination was born.
Enter the new millennium and the dark horse that was collaborative law began
sneaking up. Starting out as a movement of disenfranchised litigators, those
disillusioned by the carnage of court as a slaying field, collaborative lawyers
gained momentum with a mantra citing, “a better way”. Collaborative
lawyers won’t go to court and the better way included recognition of the
need for more attuned financial advice and the need to support families in their
restructuring to new connected/separated domestic entities. It wasn’t
enough to draw a line between the financial numbers. It became important to
structure a financial relationship between separating parties that allowed for
the greatest preservation of assets and a distribution of those funds so as
to minimize loss and maximize residual income. There was the recognition that
relationships don’t end, although change, and that children are better
served by parental relationships that remain respectful.
The challenge that was collaborative law, has since become Collaborative Practice,
with the recognition that financial and family professionals are not just adjunct
players to the divorce team but represent the soul of matters to be resolved.
With Collaborative Practice, the lawyer’s role has morphed from litigators
and doing all, to guardian of the process in order to provide for the level
playing field. This family law game is no longer zero sum, but win-win.
Litigators continue to linger. There are those parties who continue to seek
revenge and retribution. For them, litigation is the route of choice. For those
who see past the anger though, there is now a myriad of alternative dispute
More limited are the referrals for custody and access assessments for the court
arena. More in number are requests for the parenting coordinator to enter earlier
on, before parents are entrenched in their dispute. Financially people are wiser
and the monies saved from the cost of litigation are financing settlements that
endure longer than Solomon’s knife to provide for more lasting annuities
to ensure greater financial sustainability as the family restructures.
What was family law and litigation is nearly gone. The genie cannot be put
back in the bottle. Parents and children are better served and the divorcing
public is increasingly aware of these choices.