No Court Divorce

Reorganize. Restructure. Resolve. What
do these words have to do with the painful, disruptive process known as
dissolution, or divorce? Not much? Let me introduce you to a new
paradigm for this usually perfidious event: the concept of No Court
Divorce. Hold on. Isn’t that an oxymoron? Why, the very word “attorney”
comes from the Old English, meaning “at tournament,” or “one who fights
on behalf of another, for a fee.” Can a dissolution actually take place
without litigious lawyers who battle with briefs drawn? Without
black-robed, beetle-browed judges, who beat their gavels mercilessly,
and with each blow decimate income, disrupt visitation, destroy any hope
of an intact, if restructured family? Read on.

Let me explain what No Court Divorce is not. It is not marriage therapy
or reconciliation counseling. It works on the assumptions that the
marriage is over and that the time has come to start building a
restructured family. It is not appropriate for marriages in which one of
the parties harbors hope that the marriage may continue. No Court
Divorce culminates where the typical divorce begins, at the filing of
the petition for dissolution. Isn’t that putting things backward? Don’t
such “stalling tactics” create problems for the former couple? Confusion
for the children? Don’t they lengthen the procedure and inflate the cost? The answer to all the above questions is a simple and emphatic “No.”

Divorce is usually a messy, tear-stained, and highly emotional
event for all parties involved. It was ever thus. No Court Divorce
cannot magically alleviate the pain, guilt, and shame; or the blaming,
“if it wasn’t for you” way of thinking. No Court Divorce is no panacea.
It is a process.
Like all procedures, it follows a series of orderly steps to
completion. And “completion” is a key word No Court Divorce can provide
divorcing families with a psychological completion, or closure, that the
traditional method of dissolution, litigation, can never match.

Can any attorney do a No Court Divorce? Attorneys, like most other professionals,
are required to continue their education long after law school, long
after passing the bar exam. Lawyers must complete a certain number of
CLEs, or Continuing Legal Education units, each year, and California
Certified Family Law Specialists must take at least twelve hours of
specialized professional training per year. If one has a broken leg, it
should be set by an orthopedic doctor. If one requires a root canal, an
endodontist is favored. Likewise with the law.
A Personal Injury lawyer can do a dissolution, but a Certified Family
Law specialist is preferred. As for No Court Divorce, it should only be
undertaken by a Family Law specialist who has been trained in collaborative, or “cooperative” law.

Who
qualifies for No Court Divorce? The bad news: not everyone. The good
news: anyone who is willing to put the emotional wholeness of their
family before personal ill will, vendetta, and one-upmanship will
qualify.

There
are six simple steps to No Court Divorce: Assessment, Intervention,
Issue Identification, Process Selection, Initiation of the Legal
Procedure, and finally, Closure.

In
the Assessment phase, the divorcing parties work with an attorney who
is well-versed in collaborative law, to identify the emotional profile
of the family, and determine effective interventions to assist the
family as it is restructured. In this initial stage the parties meet and
confer, discussing all options available, with the express goal of
designing a strategy that will contribute to the family’s
reorganization, rather than have the family destroyed by dissolving all
family ties.

Based on this information,
the parties, with assistance from the lawyer, determine Step Two, the
Interventions appropriate for their case. These interventions may
include, but are not limited to, Separation Therapy, Parenting
classes, Rage Management, Personal Coaching, and individual
psychotherapy. It may be decided that the children will benefit by
becoming a part of a group for children of divorcing families. All of
this may sound expensive. One can imagine dollars flying out of the
family checking account and into the pockets of these various
professionals. Remember, however, that the family with average income,
who owns a home and two cars, and perhaps a pension plan, may
conservatively expect to spend a minimum of $60,000 on a litigated
divorce. A great deal more will be spent if child custody
is an issue. A No Court divorce will cost a small traction of this,
even with all parties in therapy. Consider also the personal benefit to
those involved. It takes 300 hours of guided instruction to become a
manicurist, 3000 hours of supervised training, plus a master’s degree,
to become a psychotherapist, and zero hours of schooling or training to
marry, or become a parent. Two of life’s most important events are left
to chance and luck. That’s pretty scary. Family restructuring should not
be similarly treated. The truth is that divorcing parents do not become
divorced from each other, they become divorced to
each other, for as long as their children live. Why then should they
not work together to achieve a healthy divorce, one in which mutual
respect, and concern for the best interests of the children prevail?

In
Step Three, Issue Identification, the parties learn to apportion income
streams, material assets, and, with the assistance of a specialist,
design an overall tax
plan to facilitate a reorganization that contributes to the family
welfare rather than harms it. Insurance provisions can be addressed, and
a parenting plan designed with the help of a children’s coordinator.

Next comes Process Selection, the fourth step during which the parties examine the options of negotiation, mediation,
arbitration, or case management. The best method of settling any
dispute is with negotiation. If both parties have willingly and honestly
participated in Issue Identification, then
negotiation is a good possibility. If, however, either party has a
preponderance of power and the other feels even slightly coerced,
negotiation cannot take place. Mediation is then preferred.

In
this paradigm of No Court Divorce, mediation is accomplished with the
assistance of a trained mediator and a collaborative lawyer to represent
each party. Two lawyers and one mediator. Sound expensive? Not compared
with sitting in a backlogged court room for days, not-so-patiently
awaiting an available courtroom and a busy judge, who will then take
your matters into his hands and decide them for the two of you. He
decides, not you. And remember, your lawyer, and opposing counsel, each
bill on an hourly basis. While these attorneys wait with the parties to
the action, they are unable to work on anyone else’s case. They must be
responsible to the court, on hand and available, and their time adds up,
even with good intentions. If matters cannot be settled through
mediation, arbitration is available, using an arbitrator, or
rent-a-judge.

The
presiding judge of the Family Law Department of the Los Angeles County
Superior Court has instituted a program through which a retired judge or
family law attorney may be hired by your representing lawyers to hear
your case. This is also more cost effective than traditional litigation
because it eliminates the expensive wait. However, it is the least
preferable option. It gives Your power to decide Your matter to Someone
else. That Someone makes the decisions, not you. Remember, the more you
and your soon to be former spouse agree, the less costly your
dissolution. An important purpose of No Court Divorce is to avoid the
debilitating financial and emotional expenses of litigation and to
choose a healthier, more financially sensible alternative process for
dispute resolution.

Initiation,
the fifth step, is where typical courtroom divorces begin. In No Court
Divorce, this step and the sixth are generally the swiftest to navigate.
Initiation begins when the parties decide it is time to file the
Petition for Dissolution. Frequently a joint petition is filed. This
reinforces the collaborative nature of the dissolution, eliminates an
“I’m up — you’re down” mind set, and helps forestall adversarial
tendencies. At this time temporary Orders, responses, and Case
Management stipulations are filed, a Voluntary Settlement Conference may
take place, and the parties participate in a joint resolution based on
consensus. When the judge decides, everybody is unhappy. When the
parties decide, everyone is usually much happier with the resulting
choices.

The
process enters the final, sixth stage, Closure, or completion, when the
judgment is prepared and entered. The final tax analysis is in order,
insurance provisions are put in place, and, if desired, a ceremony may
take place to commemorate the conclusion of the dissolution and
reinforce the vision of the still viable, though restructured, family
unit.

An insightful CPA
with whom I work told me the advice he always gives his divorcing
clients: “It is as important to have a good divorce as it is to have a
good marriage. You may have to live longer with the divorce than you
lived with the marriage.” Those who, best efforts aside, find themselves
walking the path of dissolution would be wise to follow his advice. No
Court Divorce provides healthier restructured families, stronger support
their the children, and may serve to mend and embellish co-parenting
relationships for years to come.

---

Ronald
M. Supancic is a California Certified Family Law Specialist and
past-president and founding member of the Coalition for Collaborative
Divorce.