Divorce Over Easy

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

Barbara, a licensed marital and family therapist, often mentions the famous Margaret Mead quip about divorce. When asked by a reporter about her three failed marriages, the sociologist said, "On the contrary, they were each successful in their own time."

The camp of attorneys who consider collaborative divorce completely nuts would probably use the Penningroths as an example of why it's "touchy-feely law," a term that infuriates supporters. But the detractors' biggest criticism is that the process can shortchange clients.

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.

"The problem I have with it is it's one more step away from a person's right to the legal system," says Earle Lilly, a Houston family law attorney for more than 30 years. In collaborative law, "the lawyer is a lawyer, but is not a lawyer. He has a right to disagree, but the moment it gets too adversarial, they have to back off and get brand-new lawyers? That doesn't make sense to me."

Even though Lilly is critical, he admits he is open to exploring the process, but says it is way too soon to call collaboration a panacea. Attorney Wendy Burgower's words are much harsher than Lilly's. She says no good lawyer would give up the right to go to trial if need be.

"Divorce should infer that they don't want to get along," says Burgower. "You can sit and talk about your feelings for three days, but what do you have? I want power on my client's side. I don't want to sit there hoping he's going to be nice to me today."

Lindsey Short, president of the American Academy of Matrimonial Lawyers and a longtime Houston family law attorney, believes collaborative law should really be a nonissue. Quality lawyers should be able to handle divorce cases with finesse and good manners -- without giving up the right to go to court.

"I think [collaboration] is going to grow in popularity because people are going to perceive it to be something it really is not at first, and lawyers are going to try to talk people into it because they won't have the burden of having to try a lawsuit. If you just act more professionally and less antagonistically, you can still resolve these cases" without collaboration.

Short and other attorneys who don't agree with collaboration argue that Texas made mediation mandatory in 1994, so couples already have a chance to work it out without a trial. But Broussard and other attorneys argue that mediation -- once a welcome idea -- no longer works so well.

"We have bastardized the mediation process in Harris County," says Broussard. "We go into a meeting and stay until 2 a.m., and at that point my client is a basket case." Broussard adds that the true mediation model, developed in the late '70s, started out a lot like collaborative law; there were time limits on meetings, and mediators weren't under pressure to get an agreement no matter what. But over time, and especially after it was made mandatory, mediation lost a lot of its benefits. And when couples go into mediation, their attorneys still have to prepare for a possible trial, so the adversarial mood remains.

Nonsense, says Burgower. There are good mediators and bad mediators, and attorneys have to be wise about who they work with.

"Our goal is resolution," says Burgower. "Mediation is one of the means of resolving a case, [but] when all else fails [in mediation], at least I have the court."

Richard Johnston Sr. is an accountant and financial adviser who has been hired by many Houston attorneys to examine a divorcing client's finances. He's worked on cases that have been resolved through both mediation and litigation, and while he thinks collaboration sounds wonderful, he believes it's little more than a gimmick, just like mediation. The only reason mediation is still around, says Johnston, is that the state requires it.

Despite his criticisms, Johnston admits he would love for collaborative divorce to really take off. It sounds great on paper. But he has his doubts.

"I don't know how you get the venom out of the process," he says. "It's endemic. If you sat every couple down who wanted a divorce and you said, 'Here are three methods of divorce: litigation, mediation and collaboration,' in the calmness of the moment they all say collaborative law looks pretty good -- until someone pulls the trigger and emotions start flowing. People feel hurt, injured. Divorce is probably the most severe form of rejection you could imagine."

It's been more than a year since Michael and Beth signed their divorce papers. Over the past 12 months, they've worked out a tentative but cordial relationship. They talk once a week, usually about the kids. Although the divorce agreement they signed is specific as to when Michael has visitation, they can trust each other enough to be flexible. If either has to switch a night or weekend, they just call up the other and ask if it's okay. And when Michael comes over to pick up the kids, Beth invites him into the house, but she doesn't ask him what's happening in his personal life.

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