Divorce Over Easy

Collaborative divorce promises to be kinder, faster, cheaper. But does it really work?

Michael and Beth Johnson met in their freshman year of college and started dating right away. Michael was everything, says Beth: smart and fun, generous and handsome. Shortly after graduation they got married and had three children together. Michael worked for the family business, and Beth helped out part-time. Their life seemed perfect.

But there were problems, says Michael. He claims he and Beth had stopped holding hands and kissing each other even before the wedding. As the years passed, he started thinking he'd gotten married too young, as if he'd said "I do" only because that was what people did when they got out of college: They got married and had kids and bought a house.

"I felt like we were two cogs in a script of activity," says Michael of his 18-year marriage. "I felt like I was living some other composite life someone else created for me. We focused on the family instead of on our relationship."

Attorney Jennifer Broussard handled the first 
collaborative law case in the Houston area.
Monica Fuentes
Attorney Jennifer Broussard handled the first collaborative law case in the Houston area.
Wendy Burgower says she would never handle a 
collaborative divorce case because it would take away 
her client's right to a trial.
Monica Fuentes
Wendy Burgower says she would never handle a collaborative divorce case because it would take away her client's right to a trial.

Beth agreed there were things they could work on, but she thought the marriage was salvageable. The two, now in their early forties, tried individual and couples therapy. They even went on an out-of-state couples retreat. When they returned from the trip, Beth surprised Michael with vacation plans for just the two of them. Michael responded by telling Beth he had already decided he wanted a divorce.

There wasn't anyone else, he said, and Beth hadn't done anything to hurt him. He just didn't want to be married to her anymore. Beth was devastated.

"I said to him, 'Didn't you ever want to be that old couple?' " she says, the pain still clear in her voice. "I felt like I had tried every opportunity [to fix things] and I'd been cut off at the knees before we even began the process."

But Michael's mind was made up -- and he didn't just want a regular divorce. He wanted to try the newest trend in splitting up, a process known as collaborative divorce.

"I had heard the horror stories of traditional divorce: the animosity, the fighting, the drawn-out legal battles," says Michael, who learned about the new method on the Internet. "And basically the attorneys are the ones who benefit."

Soon, Michael and Beth (not their real names) found themselves seated around a conference table with their respective attorneys, discussing the minutiae of their estate and the custody of their kids. Unlike a traditional divorce, which often involves lawyers taking adversarial positions, lengthy mediation sessions and bitter court battles, the theory behind collaborative divorce is that the couple takes charge of the process. Instead of husbands and wives hollering, "Talk to my lawyer!" and slamming down the phone, the method forces clients to talk to each other. They make the decisions and collect the necessary paperwork, and financial advisers, therapists and clergy can all be called in to make the process smoother.

Only a month and about $15,000 after the first meeting with their attorneys, Beth and Michael Johnson were divorced. Proponents say the efficiency and low cost of collaborative divorce is an added bonus. Even Beth found the process beneficial.

"The mood was unbelievably pleasant, believe it or not," says Beth of the meetings. And if they had done it the traditional way, she says, "it would have been more torturous. It would have drawn out the inevitable."

Although the movement originated in Minnesota, Texas has become so smitten with the process that in March it became the first state to pass a statute outlining collaborative divorce as an alternative method for dispute resolution.

But not everyone is raving. Some Houston attorneys say it's simply too early to tell if the trend is all that wonderful -- only about 130 attorneys in the area have been trained in collaborative law, and only a few hundred cases have been completed in the past two years (Houston does not yet keep formal statistics on the process).

Other lawyers argue it's unrealistic to expect a couple going through a divorce to trust each other enough to work together on a settlement. But the biggest problem attorneys have with collaborative divorce is the one crucial piece that makes it distinctive. In a collaborative case, the attorneys and clients must sign an agreement stating that if no settlement can be reached, both lawyers will pull out of the case and refer the parties to new counsel. The reasoning is that they have spent a lot of time on the case but are not prepared for trial and the adversarial relationship that that demands.

Houston attorneys say that almost all collaborative cases in the area have reached an agreement. But detractors say the clause takes away people's rights. And clients can't get their money back if an agreement isn't reached the first time.

"I don't think I'm helping my client by eliminating one of my choices," says Wendy Burgower, who has been a family law attorney for 20 years and says she recently had a client who spent $35,000 in an unsuccessful collaborative case. Collaborative divorce "takes away a very good piece of my arsenal," she says. "I resent the idea that I can't get something done in an equally appropriate way."

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