Collaborative Divorce in the Fast Lane

Negotiating an Agreement, Start to Finish, in Ten Days
David Hoffman and Vicki Shemin

Ordinarily a divorce negotiation (whether it is collaborative or not) takes at least a few months – more typically, the better part of a year, and not infrequently more than a year. "Is it possible," our client asked, "to do this in 10 days?"

We scratched our heads and said, "maybe." Plying our client with questions, we learned that he and his wife (we'll call them Sam and Martha – not their real names) have been married for more than 20 years and have two daughters, one in a private high school and the other in a prestigious college. Sam has a modest-sized business, and the family lives comfortably, but they have never owned a house – they have always rented.

Sam and Martha had talked about separation and divorce for several months. They had tried couples counseling, but the wife ultimately concluded that the marriage was over.

Martha had found a house that she wanted to buy in the suburbs of Boston, and she had made an offer. The acceptance of that offer catapulted Sam and Martha into negotiations that they both wanted to complete in time for the signing of a purchase and sale agreement on the house.

The reason for haste was that the down payment on the house was going to require virtually all of the cash available to this couple. Our client was willing to turn all of that cash over to his wife in exchange for a signed Separation Agreement providing a definite and non-modifiable structure for his post-divorce obligations. He wanted to know, for example, that he could grow his business without having to worry about whether success would mean an open-ended liability for more alimony.

Martha, on the other hand, was less worried about the future – she was confident that her computer-related job skills would enable her to make a living, and she was willing to move very quickly to reach a deal. She was more concerned about buying a house when interest rates were at historic lows.

Sam first learned about collaborative law when Martha told him that she had hired Laurie Udell, a divorce lawyer and mediator and member of the Massachusetts Collaborative Law Council (MCLC). Martha gave him a list of CL attorneys, and, after reviewing the list of lawyers on the MCLC web site (http://www.massclc.org), Sam gave us a call.

Our first task was scheduling a series of meetings and coordinating everyone's schedules. A CL process agreement was signed at the first meeting, and we began divvying up tasks. We needed values for the husband's business and the commercial real estate on which it was built. Working together, the parties talked with two independent real estate brokers for an opinion of value on the commercial property. Instead of hiring an appraiser to value the business, they jointly interviewed some of its competitors, and found out what the competitors might be willing to pay for it. Martha felt comfortable with this method since she had been working in her husband's business and knew the industry. They also prepared financial statements and gathered other documents (such as bank records and tax returns).

One of the critical breakthroughs for the negotiation came from a series of conversations that Sam and Martha had with their accountant. The parties both trusted him, and he proposed an arrangement that would allow Sam's business to employ both daughters, earning them tax-advantaged funds for college. Another critical breakthrough was the parties' agreement that the cost of the high school and college should be treated as a current liability, and therefore, in exchange for the husband taking on the entire responsibility for those expenses, Sam would retain 100% of the ownership in his business.

The collaborative process, of course, played a critical role in keeping this negotiation moving smoothly. A series of productive four-way meetings (ranging from two to seven hours), held approximately every other day for a week and a half, provided the forum for sharing perspectives – often sharply differing – about the fairness of various arrangements. Each of the lawyers worked hard to forge a relationship and feeling of rapport with the spouse on the other side of the table. (The lawyers already knew each other fairly well, which contributed to our ability to work efficiently with each other.)

Ultimately, the parties agreed to a 50/50 division of assets and a matrix for support payments that takes into account variations in both the husband's and the wife's incomes – i.e., support payments go up with increases in Sam's income and go down when Martha's income increases.

The Separation Agreement was signed on time, on the day when the very substantial P&S deposit was due. Our client and his wife deserve enormous credit for their ability to work together – when issues arose between four-way meetings, they quickly conferred and worked them out. Their strong motivation, resourcefulness, and commitment to the process sustained our momentum and kept us all on track.

Their agreement was approved a few days later by the Probate and Family Court, with both parties expressing appreciation to the lawyers for the collaborative process. Our client reports that Martha succeeded in closing on the house and the two of them are still getting along.Their children, of course, will be the beneficiaries of their success with the collaborative process. The experience also provided the collaborative lawyers in this case with an important learning experience – i.e., operating on the basis of trust and cooperation, while still taking professionally appropriate precautions to verify information, can move mountains and do so with amazing speed. [This case study was published in the first issue of the MCLC's Collaborative Law Journal.]

A Truly Collaborative Divorce

CL Looks Easy When the Clients Totally ‘Get It’

David Hoffman and Paula Noe

On paper Collaborative Law (“CL”) certainly seems like an idea whose time has come – it is such an obvious improvement, in appropriate cases, over the ordinary way most disputes are handled, especially divorce cases. And yet in real-life CL cases, the road is often rocky.

For that reason, at almost every stage of the CL negotiations that led to the divorce of our clients Mary and Arthur, we were pinching ourselves, wondering how this case could be going so smoothly. And now that the case is concluded, we thought it might be worthwhile reviewing the elements that contributed to our clients’ success with the CL process. (We have changed our clients’ names, of course, for this article.)

First, Mary and Arthur both wanted the divorce. Mary came to that conclusion about six months before Arthur, but it took her that full six months from initial interview with Paula until she decided to pay a retainer to go forward. By the time the CL process began, both were on the same page. In our view, this can often be a critical component that affects the pace and level of cooperation in a negotiation.

Second, our clients are both exceptionally well-organized and financially-savvy people – more so, perhaps, than their lawyers. They readily assembled the necessary financial information, and Mary organized it into a series of spreadsheets. After negotiating a moderately complex parenting schedule, Arthur organized it into a computer-readable calendar that each of them can email or print out as needed.

Third, Mary and Arthur had similar values and goals. Both are experienced computer professionals with good incomes, and both are very devoted to their children. They respect each other as people and are both very confident in each other’s abilities as parents. Unlike many of our clients, Mary and Arthur were very successful at saving money, and therefore their finances were in good shape. In short, they had the material and emotional resources needed to make the transition from marriage to divorce – to a far greater extent, in fact, than 90% of the clients with whom we work.

Finally, they communicated effectively, collaboratively, and in a focused way. Our four-way meetings went smoothly because our clients were comfortable sticking with the agenda for each meeting. They kept their promises in the CL process, and completed their homework (such as data gathering) on time or ahead of schedule. Arthur moved out of the marital home, as agreed, and then cooperated with Mary when she refinanced the mortgage on that home. At no time in any of our five four-way meetings, or in the preparation for them, did either Mary or Arthur get involved in accusations or other incivilities; indeed, they were so completely focused on resolution, in spite of some inevitable differences of opinion regarding money or children, that we were simply astonished by their efficiency.

With all of this resourcefulness, cooperation, and mutual respect coming from our clients, one might wonder how we, as counsel, added value, if at all. Our view is that the CL process created a safe container in which Mary and Arthur could take the risk of trusting each other. They knew, from the start, that their two lawyers liked and respected each other but at the same time could and would maintain appropriate professional boundaries. They knew that each of them would have opportunities for separate consultation with counsel, but in reality they did almost all of the work in four-way meetings.

The level of trust reached such a point that our clients began sending emails to all four-participants in the process, and we (as counsel) consented to direct four-way communications via email. The feeling of safety that was created by the process came, in part, from adhering to practices that have become customary in CL: taking turns meeting at each other’s offices (though many of the meetings were on David’s turf because it was more convenient for the clients) and alternating in the preparation of a memo summarizing the discussions at each meeting. We gave our clients’ a separation agreement checklist, which helped us structure the negotiations. One of us drafted the Separation Agreement; the other edited. Paula prepared the papers to be filed in court. The division of labor felt balanced, and the clients felt they knew what to expect.

Mary and Arthur might have had a very amicable divorce even without CL – we will never know. However, it is clear, we believe, to all four participants, that CL gave these clients a supportive framework to keep their process on track. Their two young children will benefit from the wise decision these two parents made to collaborate.

[ David Hoffman is an attorney, mediator, and arbitrator at Boston Law Collaborative, LLC. He is chair of the ABA Section of Dispute Resolution. Paula H. Noe practices Collaborative Family Law in Brookline, Massachusetts . She is president-elect of the Massachusetts Collaborative Law Council. In the case described above, Paula represented the wife and David represented the husband.]