Collaborative Family Law: Restoring Sanity to the Divorce Process

At a recent gathering of lawyers, two former law school classmates were overheard reminiscing. One of them commented about the fact that each of them had married a psychotherapist. "How interesting," he said, "we each married someone in the helping professions, while we've chosen one of the harming professions."

If it is true that lawyers often do more harm than good (albeit unintentionally, for the most part), it is nowhere more true than in the field of divorce law, which, as it is practiced in the United States, causes more stress than it cures.

Consider the average couple on the verge of divorce. Often only one of the spouses wants to end the marriage; the other may know that there are problems but wants to keep trying. In such marriages, one spouse likely feels betrayed, vulnerable, worthless, angry, and possibly depressed; the other spouse may feel guilty about ending the marriage and yet angry about the relentless blame and clinging behavior of his or her spouse.

Then introduce this couple - going through one of the most difficult, emotionally charged episodes of their lives - to their respective divorce lawyers. These two gladiators are trained to search out and exploit the peccadilloes of the opposing party. Every legally relevant fault of the other spouse - and in our system of family law jurisprudence, they are virtually all "relevant" in the sense of being admissible at trial - will be described in unforgettably harsh language by opposing counsel either in a public courtroom or publicly available papers filed in court.

Although only a few divorce cases go all the way to trial (some estimates are as low as 5%), a substantial number go all the way to a pretrial conference, in which the parties submit memos accusing each other of high crimes and misdemeanors. This process usually destroys whatever modicum of good feeling the divorcing couple might have been able to salvage from the wreckage of their marriage - a tragically counterproductive outcome, especially for couples with young children. And even for those fortunate couples - perhaps half of them - whose cases get resolved with only modest courtroom skirmishing, the legal structure for obtaining a divorce produces decidedly counter-therapeutic effects for both clients and, to an extent family lawyers have long known but seldom discussed, divorce attorneys as well.

As a result, many lawyers in the United States, including many general practitioners, refuse to practice family law. It is too painful, some lawyers say. It is too "messy," say others who feel uncomfortable inquiring about the most personal details of their...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT