Lori Becker, a Family Law Attorney, on Collaborative Divorce Process: How to Divorce Respectfully without Going to Court

By Lori Becker
April 20, 2011

Divorce is a life-changing event. A new process called the Collaborative Divorce Process offers a better way to end a marriage. This groundbreaking method revolutionizes the way couples divorce. It addresses your legal, financial, and emotional needs and achieves the best family arrangement possible. Families at war produce only losers and no winners. This exciting new process empowers you -- not lawyers or a judge -- to shape the outcome of your divorce. Do your homework and learn more about this process that helps you, as a divorcing couple, focus on your long term interests, not your short term anger.

 
 
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Attendees learned and found out

About this alternative and see if Collaborative Divorce was an option for your divorce:

  • Discovered the benefits of collaborative solutions for divorce, child custody and co-parenting issues, division of assets, and more.
  • Learned how Collaborative Divorce/Collaborative Practice offers guidance, information, and respectful problem solving.
  • What made Collaborative Divorce different?
  • The process of Collaborative Divorce
  • How it was designed for settlement

Hosted by: Dan Couvrette, CEO, Divorce Magazine
Guest speaker: Collaborative Family Law Attorney, Lori Becker. Lori D. Becker, J.D., M.B.A., is one of the few Michigan divorce attorneys trained in Collaborative Divorce, in which both spouses' divorce attorneys negotiate a settlement outside of court -- with a written agreement not to litigate. Becker educates clients about conflict -- specifically, avoiding it when appropriate, using the energy in a more constructive way, and saving the courtroom only for truly immovable, conflicted cases. She is on the Board of Directors for numerous boards, including: the International Academy of Collaborative Professionals, the Collaborative Institute of Michigan, the Collaborative Divorce Professionals of Southeast Michigan, and the Women Lawyers Association of Michigan Foundation.

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Read the Transcript of this Podcast Below.

Well, seeing that our subject is collaborative divorce, I'm going to let you start off by telling people what collaborative divorce is.

Lori Becker: Okay, gladly. Well, to break it down as simply as possible. The collaborative law process or collaborative divorce process is the name of a very specific process that we now have. It is offered in place of litigation, and it is more family focused and interest-based focus, rather than position. It is one of different options that people should absolutely consider when they are divorcing. Not every option is perfect or everybody, and thankfully now we have choices. And so that's why it is so important for people to do their homework, meet with various types of lawyers, and find not only a lawyer that you feel comfortable with, but also a process in which to divorce that meets your specific needs.

As you had stated, Dan, I did focus a lot on litigation for most of my practice and in different areas of litigation. And as I am now devoted to family law, I have tailored and focused my practice specifically to collaborative because I find it so much healthier, and clients come away feeling better at the end of the day. You know, once a lot of the healing has taken place, of course, after a divorce because it is a traumatic situation. I just find it to be a wonderful, wonderful option. So collaborative is -- has been my focus, along with early stage facilitative-type mediation.

So what's the collaborative process?

Lori Becker: So the basic part of collaborative is that it is an interdisciplinary team approach. So what we mean by that, is both spouses must be represented by their own attorney and the attorney must have very specific training in this collaborative process. We also have other members on our team, which would include mental health professionals who serve as divorce coaches, or possibly even a child specialist. And we utilize a financial neutral to deal with the financial aspects of the divorce. So with this interdisciplinary team approach, the first thing that happens is that the couple and the lawyers and actually all the team members sign what is called a collaborative participation agreement.

So once a couple decides that this is the process that they want to do, they hire the attorneys that are appropriate for this process, and then we sign this agreement that states, number one, we will not go to court and, number two, we will have full transparency and full disclosure. So what that means is that once everybody is on board and the attorneys in particular have signed this contract, if one spouse or the other or even an attorney wants to go to court over a particular issue and wants to threat and say “I'm going to bring a motion to court,” the collaborative attorneys are no longer allowed to litigate on behalf of our client. So if there is a breakdown in the process, everybody must withdraw and the clients are required then to find new attorneys. And unfortunately the flip of this is that the attorneys lose their clients. So why this is important and why it's beneficial is that we are fully engaged in the negotiation process. You can't have a truly successful negotiation if you have one foot in and the other foot ready to run and go litigate and try and wreak havoc through the court process.

So collaborative divorce process means that we are negotiating everything outside the court. We don't file anything until we are completely finished. And once we have finished, what we do is we draft everything into what's called a consent judgment of divorce. And then after that's signed, and now the parties are bound by that contract, which outlines every aspect of their divorce, the parenting time, the property division, and if there's going to be spousal support. All of these aspects of divorce are detailed in this contract. The couple sign it. They've agreed to it. This is what they've negotiated about. And then we file in court to finish the actual divorce and have the judge pronounce them officially divorced. That is the only way that collaborative attorneys will be in the court process, which is to finalize what the couple has already agreed upon.

So that in a nutshell is what collaborative is versus the traditional form of divorce, where people hire an attorney, they file the paperwork and the lawsuit for divorce in court, and then serve the other spouse, they hire their attorney, which is naturally a very adversarial process. And then, unfortunately, most times the fighting then begins.

So we could have people calling in from all across North America and I do know that there are some distinctions from state to state and province to province in Canada, that not all of the collaborative practitioners include mental health professionals and financial neutrals for sure. Some do and some don't, but in Michigan where you're located, that's the process is that the mental health professionals and the financial professionals are -- they have to be part of the process, is that how you work?

Lori Becker: Yes. It does vary to state to state. It also varies from attorneys. Collaborative started off as being a process with just two collaborative attorneys. A lot of times people assume that more professionals means a much higher legal bill and professional bill at the end of the day, but to the contrary, we find far more productive negotiations take place, far more lasting negotiations and agreements are had. It actually saves significant amounts of money, especially over the long run by having this team approach. So I guess there is nothing set in stone that you have to have these other professionals, but truly collaborative has evolved to the point that it is an interdisciplinary team approach, and we find it to be most productive when it is utilized as a team.

Now, you've outlined a number of ways that I can see how collaborative is different than litigation. Maybe you can talk just for a moment about how people feel when they go through a litigated divorce, and how they feel when they go through and use the collaborative process. Do you find a difference in how your clients react, and how they end up feeling at the end of the process?

Lori Becker: Yes, I do, and, quite frankly, when we're in the collaborative process or both processes, I wish that we could have a clone of the couple going through the opposite process at the same time so that they could really feel and live the differences! Because it boils down to the fact that divorce is a very traumatic situation, and it's not going to be pleasant no matter what process you take. Divorce is a death of a marriage and you grieve a death. You grieve a death of a marriage, a divorce, much like you grieve a traditional -- a regular death. And because of all the emotions that are interplaying with that, you have people at very different stages, and different emotional stages, that unfortunately in litigation, are not addressed. Litigation just is not designed to address the emotional aspects of a divorce.

So what we find is that my clients who go through a collaborative process start off in a very traumatic situation, and I can see them getting stronger and finding their voice as we proceed. In litigation, unfortunately, more times than not, people feel like they don't have as much control because ultimately in litigation, you are leaving your biggest life decisions in the hands of a third party -- either a judge or an arbitrator. Now, in litigation very few cases, particular in Michigan, end up in a trial. Less than 2% go to a full trial, which means that most cases in litigation are settled in mediation. However, it's been my experience that when they're still in this process, it's still a litigation process. Even as they're attempting to negotiate and to settle, the attorneys must still prepare as if they are going to trial, which means doing all the formal discoveries, subpoenas, interrogatories, depositions, etc.

It’s like playing poker and keeping your cards very close to your vest because you don't want the other side know what your next move is, and that puts more control in the hands of the lawyers, and less control in the hands of the parties.

Also when they end up in more late stage evaluative-type mediation, they took at that like buying a car. You know, you might have the best deal in town in that negotiation, in that mediation, but it is so high pressure and so kind of a last resort, because if we don't figure it out and solve it today, then we're going to have to go to trial.

People almost always have buyer's remorse. And in collaborative, the process is we're not in court, we're not on the judge's docket. We're on our own timeline.

People have time -- no pressure. The people have time to think about their decisions. They have various professionals to consult with regarding financial aspects and the pros and cons of various settlements, and it gives them the ability to negotiate and make clear decisions, instead of having to make a decision in the moment of fear or in panic. So because of that, collaborative clients find that they have far more ownership in the settlement, because they took the time to talk to each other -- even though it can be difficult, but, again, we've got the professionals there to help with that. They have ownership. They focus on their long-term goals, rather than their short-term interests. And when you have ownership in the settlement, the settlement tends to last far longer.

So in a traditional litigated divorce, people are so focused on getting as much as they can in the divorce. And then once the dust settles, one side or the other is not happy, or both are not happy, and then that leads them to go back and fight in court over child issues or their support issues. And people really need to think about long-term interests. That’s where collaborative can be a huge cost effective option.

So let's say I'm going through a divorce. I'm sitting in a meeting room, my spouse has their attorney, I have my attorney. Is there typically one mental health professional in the room and one financial professional, whether that's an accountant or financial planner? How does that work?

Lori Becker: Sure. Well, first of all, all of the professionals have been trained in the collaborative process. We all take our training together. Most of us have advanced training in collaborative, as well as mediation, training. In our area, we tend to use two divorce coaches and one financial neutral, and then the two attorneys. Now, in each given meeting, it really depends on what is necessary for this particular case. You don't see all the time -- not very often do we have a full team meeting with the coaches, financial person, and the spouses there. How it works is that the lawyers meet with the spouses. We'll have our first four-way meeting, and it's a great opportunity because both spouses can hear directly from the other attorney, you knowit's not that old telephone game where the messages get confused.

Everybody's in the same room together. We're all communicating. And then if needed or when it's needed, we then have the spouses meet with the coaches. And so they do their own. They might do an individual meeting with a coach, and then they have usually a four-way meeting with the two coaches and the two spouses. And that can be incredibly helpful and cost effective because the coaches help develop and teach different communication skills for the couple. A lot of times we have cases where the couples are not speaking to each other at the moment. There's so much tension and frustration or hurt, and the coaches can help to get both of them to start communicating. And not only that, but to start hearing each other and teaching them various communication skills, so that once this process is finished they can go back to co-parenting, which is really the key.

So the meetings take place at different times. You don't have all the professionals meeting together. And think about this, in a traditional litigated case, your attorney is everything all rolled into one and, quite frankly, I don't feel that I as an attorney is very qualified to do all the emotional stuff and all of the financial stuff. It’s like medicine, I mean, it's far better to see a specialist. It's more cost effective, and you get the results needed sooner and far more productive. So we have the individual meetings as they're necessary. We have group meetings. And then the couple gets stronger and more able to communicate. Often, they're able to come up with settlements outside meetings, which can cut down on the cost of all of this.

People who are contemplating divorce, who might have heard something about the collaborative process, might think that maybe they wouldn't be able to use it because they can't communicate. But you're saying that if you work with mental health professionals, that, really, there's an opportunity to get through your divorce in a less painful way and come out of it, if you have children, better able to co-parent. Is that basically the gist of it?

Lori Becker: Absolutely. I think, first of all, in my personal opinion, I think collaborative is a misnomer. People hear the word "collaborative" and they think, okay, that's not for me because we have nothing worked out and there's no way we can collaborate together.

It's just strictly the name of the process. And I find that people that have complicated, complex situations, such as minor children or businesses, complex assets, these are the people that will, I think, do far better and be more productive in a collaborative process because there's so much room to fight and to build up that tension. There's already enough tension in the house because they're going through a divorce. Communication is not at its best. And so when you have, again, a process where you're not communicating, your attorneys may be in litigation telling you not to communicate with your spouse, that just adds to the tension. And when you don't really have the answer of what the other spouse is doing or thinking, you tend to fill in the blanks, and most often those blanks are completely wrong. So it's better to address the elephant in the room together in one room.

What sort of criteria would you have for people who are better suited to the collaborative process, and are there some people who are just not suited to this process?

Lori Becker: Yes, well, first of all, I think people, as I said earlier, need to find out all the different ways in which to divorce. So if there's a couple that has pretty much everything worked out, then they don't need the collaborative process because they they've already done it all, they've figured it out, and they've agreed to things. So I would label that more like a kitchen table divorce, where the couple sit at their own kitchen table and hash everything out. If they're in agreement, then they really just need attorneys to draft the settlement and help them through the court process. If there are areas where they need some help mediation, they can seek early stage facilitative mediation, where you have a neutral who asks open-ended questions and focuses on more needs and interest base, that can be very helpful.

But I find that the couples who have more complex cases, more complex assets, again, young children, those are the ones, who would be better off starting in collaborative because, again, it's getting that open communication going.

Now, collaborative absolutely requires both spouses to want to do collaborative. And both have to agree on full transparency. We don't do formal discovery. So whatever financial documents are needed, we exchange. We say, okay, this is what we need to understand, and then the other side says it's what we need, and we cut through a lot of the red tape by providing. I equate it to playing poker with an open hand where everybody shows their cards and says this is what the family has and how do we divide this up.

Collaborative, though, is not appropriate if if somebody is not going to be truthful and is intentionally going to be using the process to deceive. Now, spouses sometimes start out thinking that their spouse is going to be that way and really you should leave it up to the collaborative professionals to determine whether or not the case is appropriate. Very broad-based, you know, if there's domestic violence, if somebody just is not capable of being at the table to negotiate, those cases clearly would not be appropriate for collaborative. Sometimes people want and need litigation. But I think for the vast majority of people really should consider collaborative, look into the benefits of it, and then make their decision from there.

We've been publishing Divorce Magazine for 16 years and, you know, one of the big issues, of course, with people going through divorce is trust and sometimes it relates to financial matters. I guess it often relates to financial matters because one spouse has looked after the finances more than the other spouse in the relationship, and they may not trust that the spouse is going to be forthcoming with the information. Do you find that the collaborative method helps break through that more than if you go the litigation route?

Lori Becker: I do because I feel that the collaborative process helps create a level playing field and it's done so through the help of the various professionals. Often one spouse feels that they don't have a voice or they -- as you said, they don't have knowledge of the financial information. So by having a financial neutral in place on the team, that person doesn't represent either spouse, but are there to help educate both spouses as to where the money is, or maybe where it isn't. Often, people fight over thinking that there's more money than there is, or not understanding how and what their life is going to look like once the divorce is over.

There's an accountant or financial planner? How does that work?

Lori Becker: 
Sure. Well, first of all, all of the professionals have been trained in the collaborative process. We talk about the elephants in the room. Let's say my client tells me that he or she is having the affair, we want to brush that under the rug and get them divorced and then let them deal with it later. But in a collaborative, it's better to deal with it with the right professionals in place, so that both people can understand all of the aspects of it and move forward and grow from it, rather than letting it blow up even after they're divorced, and then what are they going to do, fight over parenting time, support issues, and all the rest of the things that will carry them into court.

Right. I want to at least address it and I know that it doesn't happen very often, but what happens if the collaborative process doesn't work? What happens if my spouse and I just can't agree, and I've got to go to court to get my fair share or get my time with my children? What then happens?

Lori Becker: Sure. Well, there are times when collaborative does not work out. Usually what is happening a lot of times if you don't have the mental health professionals in place to help deal with emotions. The other reason too is, you know, we have had quite a few celebrities go through a collaborative process, but you don't hear about it because, again, the privacy, everything is out of court. So you might hear a blip that so-and-so is getting a divorce, but then you don't hear anything else until you hear, you know, oh, they've resolved everything and now everything is finished. So there’s no publicity. But when, you know, we do hit hard times in collaborative, and there are emotions and tears and so on. First of all, we do have the ability to bring in a mediator if we need to into the collaborative process. And, again, the professionals working together. But if it truly breaks down, if we have -- let's say for some reason we discover that somebody has not been truthful and they've been hiding assets or, you know, whatever fact might come up that, you know, requires us to terminate the collaborative case and then they must go litigate -- what happens is that all of the team members involved do withdraw and both spouses have to go and hire new attorneys. They might then try and mediate at that point, but in my experience, people mostly go into litigation. And, you know, I've had cases where people have come back after they have litigated and then kind of a light bulb goes off and they say, wow, you know, I wish we had given it more time in collaborative because litigation was not the answer.

I'm going to let you talk for one minute. We're going to wrap this up, but I'm going to ask you a question and I think anybody who's been listening will already know, and the question is why do you practice collaborative law? I mean, you're very passionate about it. But is there anything specific as to why you practice collaborative law?

Lori Becker: Well, you're right, I am passionate about it. I think collaborative law has helped me stay in the law because I was getting so burned out. Family law is a very toxic arena because you're dealing with people's emotions all day long. And in collaborative, I feel like I can give that sort of -- as a doctor would say, that bedside manner and helping a client get healthier and more stable as the process goes on. So that is really why I focused on collaborative. In collaborative, we are able to come up with far more creative settlements that people just would not normally even think of in a litigated kind of cookie cutter-type divorce.
Take the example of an orange. Both people are fighting over this orange. They have to have the whole orange. Well, if you go to court, either the coaches. And so rotten by the two coaches and the two spouses. And that it will be no good to either party, or the judge is going to simply cut the baby down the moment. There's so much tension and frustration or there's hurt that the whole orange. And in collaborative, we ask and we get to the interests and the needs of both people, and we might discover that one person needs the juice of the orange and the other person needs the rind. Therefore, we can take that asset -- that orange -- and give both parties what they need so that they can feel whole and go and do what they want to accomplish after the divorce. And that's why I find collaborative so energizing because we are using our negotiation skills and our creativity to find lasting settlement that will help focus and keep the family together even though they will be in separate households.

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April 20, 2011

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