Verified by 
When we first started discussing divorce, I called a few lawyers, but didn’t hire anyone. I was convinced by what I had heard that divorce lawyers are sharks, circling failing marriages, salivating, ready to snap.
Take the case of a man I’ll call Josh. When he and his wife decided to divorce, they assumed the first step was to choose who kept what. And so, like many couples, they immediately added to the stress and anxiety of separation the gut-wrenching process of divvying up assets. Their longstanding disagreements about parenting grew. Josh’s parents encouraged him to call in some lawyers. With two professionals on the case, each dedicated to ferreting out every possible advantage for his client—against the other—the fighting escalated.
As the months turned into a year, his wife reached a surprising conclusion: They had more in common regarding their sons than they realized. The process of working with lawyers had obscured their shared values about parenting.
Do lawyers egg on fighting spouses, dragging out negotiations for personal profit? Perhaps some do. But it’s easy to fault lawyers in the free-flowing blame game that divorce can become, especially when people rush to file. Hurrying to make it legal when you feel vulnerable and unsettled can make you susceptible to every divisive, petty, suspicious idea you hear.
Divorce is a psychological and a legal event, and the one characteristic affects the other. In the past, the process itself would compound distress. Before no-fault divorce, you had little choice about the how of your divorce—you had to mount a case against your spouse, testifying about his evil-doing before a judge. Even if you were merely making it up, highlighting the negatives magnifies it, makes it feel more real, hijacks the effort to remember what was good.
Today, there are legal options that can help a couple transition from a bad marriage into a cooperative, unmarried team. I found that slowing down the legal process gave us time to adjust to living alone before trying to decide and divide. It also allowed us to learn about some new legal processes that can improve a relationhip on the other side of marriage. As I discovered, some of the most exciting innovations in divorce are coming from the legal professionals, such as the following two:
Mediation
A mediator is a neutral third party—often a lawyer or therapist who has taken mediation training—who helps you talk through your concerns, resolve conflicts and make decisions, together. A mediator helps you craft a settlement that feels fair and supportive to both of you. A mediator also can help you develop new communication skills that will improve your post-marriage relationship.
Couples like mediation because of its success rate. Mediated agreements tend to stick, whereas those concocted in a poisonous cloud of seething resentment can look unfair or downright crazy when that fog lifts. In a recent 12-year study by Robert Emery, David Sbarra and Tara Grover, parents who took part in mediation settled their disputes in half the time as those who used litigation. They were more likely to consult with each other after the divorce about child-rearing issues, and were generally happier in their new, unmarried state.
Mediation training varies, and as with any professional, so does the skill. States increasingly have a credentialing requirement, but many great mediators work in states with no formal accreditation process. If this is the case for you, interview several, and go with the one whose approach and attitude feel right.
Collaborative Counsel
In collaborative counsel, a newer form of what’s called “alternative dispute resolution,” you each hire your own attorney, but they both sign a contract to resolve the case without going to court. If they can’t help you reach agreement without needing a judge to step in, they have to give up the case. As with mediation, you’re working together to create a mutually beneficial plan.
Your lawyers also connect you to other experts—psychologists, financial planners, or a child development specialist—anyone who can support your effort to forge a fair agreement and move forward positively and productively in your lives unwed.
There are about 5000 members of International Academy of Collaborative Professionals, as well as state and local organizations. To learn more, check out collaborativepractice.com, or do a search for collaborative lawyers in your state.
Many family lawyers take a similar problem-solving approach without calling themselves collaborative counselors. You can ask a lawyer you like if she’ll engage in a collaborative process, and establish your intention to solve problems in a way that serves both of you.
Collaborative counsel is still somewhat new and can be expensive; you're paying a team of professionals the going rate in your city or town. But it's less costly than a protracted court battle, and the process gives you insights and skills that may prove invaluable in your future.
Collaborative counsel is a good choice if you have complicated finances or emotional landmines just under the surface, not yet defused. It also can be a shield against family and friends who insist that you “lawyer up,” or “fight for what you deserve.” The language of “just deserts” captivates, but it can send a decent divorce careening out of control. Collaborative counsel can reassure you, and everyone who knows you, that yes, you have a strong lawyer representing your side.
Your side, incidentally, happens to be the same one that your future-ex is on.
Check out my article on how Gwyneth Paltrow’s “conscious uncoupling” reflects new legal options available to all of us.
Or sign up for my newsletter on wendyparis.com.
