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Divorce Over Easy

Attorney Jennifer Broussard handled the first collaborative law case in the Houston area.
Monica Fuentes

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."

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."

But for Michael and Beth Johnson, the chance was worth taking. They say the bigger risk would have been trying the traditional approach to divorce. While the wounds, especially for Beth, are still fresh, a year after the breakup both can find good words to say about each other. Most important, they say their children were not as scarred by the event as they could have been.

"When you've lived with a person for 18 years and you've had children, you can't ignore that," says Michael. "You care about the person, you don't want to see harm come to that person. I talk to other friends and I hear of some people spending $200,000 on attorneys and a year and a half on the divorce. I can only imagine the nightmare it could have been for us."


Attorney Jennifer Broussard keeps a stack of blue-and-white brochures on her desk titled "Divorce as Friends." A sentence under the title promises, "You can heal your relationship, one human being to another. You just need to learn how." Next to these are a stack of pamphlets from a Houston group Broussard belongs to: The Alliance of Collaborative Family Law Attorneys. The picture on the front shows a ray of sunlight peeking out over a cluster of dark clouds. For Broussard, a family law attorney in Houston for 17 years, the fact that she is one of the city's biggest supporters of collaborative law is ironic.

"I thought I would die with my boots on in the court," says Broussard, who along with attorney Jack Emmott handled the first collaborative divorce case in Houston, in April 2001. "Litigation was everything to me." She says the ham in her enjoyed courtroom dramatics, and she loved the adrenaline rush she got from trial.

But at the same time, Broussard says, she couldn't ignore the negativity.

"I have had clients who live on in anger the rest of their lives" after their divorce, says Broussard. "I've seen them marry and bring that anger into the new marriage, and the whole relationship is based on hating the previous spouse."

In 1997 Broussard's health failed so dramatically she was confined to bed for much of the year. Realizing that the stress of her job had exacerbated her illness, Broussard began to evaluate her purpose as a family law attorney, wondering if there was anything she could do to make the process more humane. After doing some research, she discovered collaborative law.

"We, the lawyers, get out of the spotlight and we get our clients to negotiate and get to an agreement where they had the input and they can sign off on it and feel they did it," she says. Broussard says an attorney has to radically reform the way he or she views divorce. While lawyers are often natural-born problem solvers, law school and the culture of divorce have trained most of them to view a divorce settlement as a bloodbath.

The collaborative trend began a dozen years ago with an attorney in Minneapolis named Stu Webb. A family lawyer since 1971, Webb says he was tired of feeling like he was "constantly under siege." A soft-spoken man who says he once marked a client's divorce by getting a potted plant and splitting it in two for the client and the former spouse, Webb toyed with the idea of quitting law altogether to become a psychotherapist. But an idea struck him the day a new client walked in seeking a divorce. Webb decided to contact another lawyer in town with whom he had always worked well, to see if she would represent his client's wife.

"I thought if we could just get around the table, all four of us, we could figure this out," he says. The attorneys met with their clients but also held several meetings with all the parties involved. The traditional, lengthy process of discovery was not necessary; the clients and lawyers signed agreements promising to disclose everything during the meetings. Sessions were kept short so the couple wouldn't get burned out and agree to something irrationally. The clients even photocopied their own paperwork, something usually done -- and charged for -- by the lawyers. Eventually the couple arrived at a settlement.

 

But when Webb and the same attorney attempted it a second time, the process broke down and went to trial, an event Webb says was especially nasty because the attorneys had worked so closely together. The trial was so rough that Webb realized the two lawyers might not be able to collaborate ever again. And while Webb agrees few divorces go to trial (in Texas, for example, 93 percent of cases are resolved outside of court), attorneys have no way of knowing if they will appear before a judge, so the process is adversarial from day one.

"We learned from that; the settlement lawyers have to get out of the case" if it breaks down, he says. "That is the essential piece."

On January 1, 1990, Webb declared himself a collaborative lawyer and started a small group in Minneapolis to spread the word. The buzz traveled beyond the state line, first to California and eventually to other parts of the country.

In the Houston area there are several collaborative groups that constitute the Gulf Coast Collaborative Law Network, which serves as the umbrella group for interested attorneys from Harris, Galveston, Fort Bend and Montgomery counties. The network comprises about 130 members. While there is no formal certification process for attorneys who want to practice the method, most groups require members to have a certain amount of experience as well as at least one seminar in collaboration.

On the national level, the American Bar Association has yet to issue a policy statement on the practice; however, the organization has held seminars on the topic at recent conventions.

Collaborative attorneys across the country were pleasantly surprised when Texas became the first state to codify collaborative law. After all, the Lone Star State has never exactly been San Francisco.

"It's a very progressive move, and we're not normally viewed as a very progressive state," says Barbara Runge, board member of the American Academy of Matrimonial Attorneys and a Houston family law attorney for 28 years. Texas is one of a handful of states that still allow child custody to be decided by a jury trial, and it wasn't until 1997 that the Texas legislature ruled the court could issue mandated alimony for couples that had been married for at least ten years (although the law refers to the support as "maintenance," not alimony).

Longtime Houston family lawyer Harry Tindall was instrumental in getting the statute passed. A self-proclaimed "dean of this business," Tindall has seen it all, from clients who surreptitiously placed cameras in hotel rooms to catch spouses cheating, to parents who abused their own children. He remembers the days before no-fault divorce when "scaredy-cat Yankees" would take the so-called Divorce Special, a daily American Airlines flight from New York to El Paso. Attorneys would meet people getting off the plane in Texas and drive them across the border to Juárez for a quick Mexican divorce that often left their spouses in the lurch both emotionally and financially. But he admits most people splitting up don't start out trying to get revenge or shortchange their spouse.

"They're not all crooks and they're not all cheats," he says. "And many of the marriages involve children. There's got to be a way for couples to untie the knot in a way that's less confrontational, less harmful."

The statute, says Tindall, gives the process credibility. But most important, say supporters, it keeps the divorce off the "rocket docket." The court system, eager to keep the backlog of cases to a minimum, tries to resolve divorce cases in six months to a year, although they often take much longer (in 2001 roughly 20,000 people filed for divorce in Harris County).

"In a traditional divorce you get a notice in the mail that your case is set for trial in October, and it's August, so you've got to start running around getting your discovery done and your depositions for certain deadlines, even if the case doesn't end up going to trial," says Tindall.

But the statute allows collaborative attorneys up to two years to resolve a case; if they haven't reached an agreement by then, they can file for an extension. And while collaborative cases often resolve sooner than traditional ones, the two-year time period allows for some breathing room.

Collaborative law supporters acknowledge the method isn't for everyone. Tindall estimates it might work for only a quarter of divorcing couples. For some, collaboration isn't even necessary. An uncontested divorce between two people who have no children and no shared property can often be done quickly and for as little as $1,000.

Most attorneys believe marriages that involve issues of domestic, sexual or drug abuse are not good candidates for collaboration. Some lawyers think infidelity disqualifies a couple, although several attorneys in Houston have worked successfully with couples where one or both partners have had an affair.

 

Even with a couple like Michael and Beth who seem willing to work together, the process can still be difficult. Collaborative or not, a divorce is still a divorce.

"Believe me, we had our words," says one woman of her former husband. The couple successfully went through the process after a 12-year marriage and two children. "We had our fights, and there have been times when he hated me and I hated him," she adds. But the collaborative process appealed to them. "On an emotional level, it just seemed more civil. I can't really explain how we were able to do it. I don't know. I guess it was the grace of God, maybe."


Cathy (not her real name), a Houston-area therapist whose parents divorced in the mid-1970s when she was 13, says she understands the importance of keeping the well-being of the kids at the forefront of any divorce. After her parents decided to separate, the process deteriorated into a long, contentious trial, and a jury eventually decided the custody of Cathy and her siblings. Cathy even had to testify about which parent she wanted to live with.

"It was like a drama on television," remembers Cathy, who says the jury decided to send three of the children to live with their father and the remaining three to their mother. When not testifying, Cathy says, she spent most of the trial alone on a bench outside the courtroom.

"Nobody ever came to console me and check on me," she says. "My parents were motivated by anger and rage. It was adults having a war and dragging the children through it."

The process racked her well-off family financially as well. Cathy recalls being at her father's attorney's house and overhearing the lawyer joke that Cathy's father had just paid for the new tires on his Mercedes. Had collaborative divorce existed when she was a child, Cathy thinks, her parents' split might not have gotten so ugly.

Michael and Beth Johnson say it was nightmare scenarios like Cathy's that kept them working to reach an agreement. One of the first things they did after telling the children they were getting a divorce was to send them for counseling. The couple often worked on what they termed "homework," and stayed up nights in the family study, combing through financial paperwork and discussing how much support Beth and the kids would need from Michael after the divorce (Beth eventually decided to go to work full-time, but Michael continues to provide maintenance).

The couple decided both of them should move out of the house, and they spent time walking through the home dividing up belongings. They even managed to split up their photo albums; Michael got the odd years and Beth got the evens. And both agreed the children should live with Beth, while Michael got generous visitation.

Michael didn't want to steamroll Beth and the kids out of money, and Beth didn't want to pinch Michael for every penny.

"Even to this day, Michael is an honest person, and he tries to be up-front in everything he does," says Beth, who acknowledges the attorneys made it clear that they were taking a risk by trying the collaborative route. "But I had no reason to think we wouldn't make it work," she adds.

For family District Judge Bonnie Hellums, who sees around 6,000 family law cases a year, collaborative divorce keeps the decision-making where it belongs: out of the courtroom and with the divorcing couple.

"All we as judges can do is look at monetary value," says Hellums. "We don't realize that the stupid painting of a duck is something your grandfather did before he died and it's worth $1,000 to you even if it wouldn't sell for $5."

Hellums, who recently presided over a case where she had to divide up Tupperware and plastic glasses, says she has seen college education funds wasted on attorney's fees. She often has to send so-called high-conflict couples to court-appointed counseling.

One of the few things collaborative divorce has in common with its traditional counterpart is it too can call on the guidance of mental health professionals. Jennifer Broussard says it's not uncommon for a collaborative attorney to call a client's therapist (with permission) to discuss the best way to work out an issue.

Judith Miller and Sondra Kaplan, both social workers, have embraced this newest way of doing divorce. Harris County courts have sent families to the two therapists for years, and Miller and Kaplan think the collaborative process -- if done right -- can save families. If there are children, the therapists try to get the parents to imagine far into the future and remember that even after the divorce separates them legally, graduations and marriages and grandchildren will continue to bring them together for the rest of their lives.

 

"One of the saddest things I hear is when I get a couple in a premarital counseling session and it's not about how well they get along, it's that they're worried about the parents of the bride who haven't talked in 12 years coming to the wedding," says Miller.

Miller was once appointed by the court to work on a high-conflict, traditional divorce case where the father sought revenge on his former wife by not allowing their five-year-old child to call her mother during visitations with him. Because she missed her mom, the child called her in the middle of the night while the father was sleeping. The mother responded by coming over and sneaking the child out of the house. The father woke up the next morning to discover his daughter missing, without any clue as to what had happened to her.

What makes collaborative divorce so refreshing, say the therapists, is that the people who succeed at it look past the anger and truly put their kids' needs first.

But collaborative divorce begs the obvious question: If couples can split up so nicely, why bother divorcing? Indeed, while it happens rarely, attorneys say that several couples who have used collaborative divorce have remarried shortly after the divorce or have decided to reconcile instead of breaking up because the process was going a little too smoothly.

Broussard and other attorneys say that while collaboration makes clients and attorneys happier, lawyers aren't therapists. If a couple gets along beautifully during collaboration and still wants to divorce, that is ultimately their business -- not the attorneys'.

"We don't change them," says Broussard. "I take them as I find them. My job is to get them a divorce."

Barbara and Phil Penningroth, a former married couple from California who co-wrote A Healing Divorce after the end of their 25-year marriage, take a more emotional point of view. Longtime supporters of collaborative divorce and collectors of divorce rituals, they say society has embraced "the myth of the bad divorce." They say couples split for thousands of reasons -- and often only the couple understands why. But no matter the reason for the breakup, society expects you to despise your ex. Phil points out that "the culture promotes the idea that something is really wrong with you if you are friends with your former spouse. The culture publicly values acrimony and bitter divorce."

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.

"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.

As for Michael, he says he and Beth aren't friends but they're friendly. His parents are still close to Beth, and they visit her regularly. When Beth and Michael's oldest child celebrated a birthday shortly after the divorce, Michael asked the daughter if she wanted separate birthday dinners with each parent. She told him she'd rather have the family all together.

It was hard for Beth, but she agreed to do it for her daughter's sake. She doesn't know that she would have been able to go through with it if she hadn't done collaboration. Since the agreement, Beth has suggested the process to a friend. It's the sanest way to split up, she says. Michael agrees.

"There is healing that still needs to go on," he says. "But time is the biggest healer of that rift, and maybe it's the collaborative process that allows it to occur."

On the night of the birthday dinner, the family went out for steaks, and the grandparents came, too. Beth says at first it felt like there was a big white elephant sitting smack in the middle of the table. She and Michael didn't sit next to each other, but they said hello. Since that dinner there have been other celebratory events, and Beth says it's gotten easier each time.

Still, she doesn't want anyone to have illusions about collaborative law. Even though she supports the process -- even though everyone was nice and sat around the table and shook hands -- in the end, her husband of 18 years still decided to leave her.

 


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