Some people think it strange that I talk about “love” in relation to the legal term known as divorce. I think it’s all about love. Of course, because it marks the end of a marriage, divorce can be a painful experience. Birth is also a painful experience. And there is no denying that divorce is the birth of a new beginning.

Relationships are born, live for a time, then die, just like people, animals, plants and every other living thing in our world. One form dissolves into another. We can make this a tragedy or we can see it as part of the process of life.

The difference with relationships is that we can choose how they will end. To me, the word “divorce” is an inaccurate term. It implies a chopping off, a complete separation. But as those of us who are “divorced” know (especially if we have children), it’s not true. It is a dissolution of one form of relationship into another. And how we choose to dissolve our relationship is the seed of how our new life will begin.

As a holistic family law attorney I was very glad when people called me to learn more about collaborative divorce, a court-less way to part. I also learned that there are many misconceptions about what collaborative law is and what it is not. To help people make informed choices, I offer some brief descriptions of the different ways of ending a marriage:

Traditional “adversarial” divorce: This is currently the most common method, although I predict that it will not be for much longer. It involves each party hiring an attorney and going through the traditional court procedure: Filing the complaint, answering the complaint, going through the “discovery” process (i.e., a formal procedure for finding out about people’s assets and other personal information by using written questions that must be answered, subpoenas to get documents and asking oral questions in the presence of a court reporter), filing motions for various reasons and attending court dates. This procedure usually ends with the parties working out a “consent judgment” but it can also end in a trial and other courtroom tactics along the way. Every aspect of the parties’ lives is open for discussion and attack by the other side.

One lawyer: A variation of this is when one party hires a lawyer to file the paperwork, the other party agrees not to respond (and so a “default” is entered against them) and the parties work out an agreement that the lawyer, acting as scrivener, puts in writing and enters “on the record” with her client. The purpose of one party not responding to the complaint is to eliminate certain court dates that automatically “kick in” when an answer is filed. It saves the parties money. This variation works only if the trust level is high and assets fairly low or not in dispute. Of course there are still issues of child custody and support and spousal support that need to be resolved. The lawyer can only represent the interests of her client, so the parties need to trust each other and have good communication for this to work successfully. This is rare.

I still do traditional divorce cases, with an eye to finding the win-win solution wherever possible, but even the most proactive of clients tells me they feel the tension when each side has a different lawyer, who represents only their own client’s interests. In large asset cases where the trust level is low, this may be the only way to resolve it. Unfortunately, everyone involved suffers, especially the kids, whose needs are often overlooked in the heat of battle.

There are many excellent family law lawyers who work toward settlement as much as they can. The problem is with the process itself. The threat of litigation always hangs in the air.

Mediation: In a mediation approach, the parties go on their own to a trained mediator who works with them together to resolve their issues. There are many good mediators in Michigan who are also lawyers and therefore qualified to help legally resolve the couple’s issues in ending their marriage. Mediators are often called upon as well to resolve certain issues in traditional divorce cases that the parties can’t agree on. Many times this works well. One flaw, however, is that the mediator is only one person. They cannot advise either party as independent counsel would, so neither party may be fully advised on all of the options or rights available to them. If one party is more dominant than the other or more articulate, the other party may be left wanting and will not be able to adequately present their view.

Collaborative approach: This is an approach where each party hires a lawyer trained in the collaborative approach (the lawyer is also often trained in mediation as well, which increases their skill set). The basic premise for the lawyers is that each agrees to represent their client for settlement purposes only. No going to court (except for the final hearing, required in Michigan, to put the parties’ agreement “on the record.”)

The basic premise for each party is that they agree to full and fair disclosure of assets and to act cooperatively to achieve a resolution. The parties play a major role in deciding how to dissolve their relationship. If the process breaks down (and both people have a big incentive to stick it out), neither side can use confidential information in subsequent court proceedings. This is agreed to in writing, along with other important assurances, in the participation agreement.

The parties and their lawyers sign the participation agreement after reading it aloud to be sure it is understood. They then schedule a series of four-way meetings. How many are required depends upon the complexity of the case. Some cases may resolve in a few such meetings; others take more.

Some things need to be dealt with immediately (like one spouse agreeing to pay household bills after moving out while a final agreement is reached), so that both parties feel secure and confident during the process. The agreement is just written down and signed; no motions filed or court orders.

When a final agreement is reached, the case is filed and after a few other preliminaries one or both parties appear in court solely to put the final agreement “on the record.”

This approach inspires a spirit of cooperation and trust. It fosters an environment where the parties and their lawyers can brainstorm about resolving problems together instead of the usual tactic, “I’ll see you in court!” Most importantly to me, the children’s needs are given primary attention in working out the agreement, with the help of a child specialist if needed. If only we could face all of our problems with this kind of support.

Some people feel scared about hiring lawyers for settlement purposes only. If the process breaks down, they have to hire new lawyers. They are afraid that they are losing something by not going to court. They are – many sleepless nights.

The fact is that over 90 percent of traditional divorce cases settle anyway, albeit after extensive (read “expensive”) discovery and motion practice and tactics that often break down the parties’ relationship even more.

In Emmanuel’s Book the question is asked, “Why are so many marriages ending in divorce? Emmanuel responds: “It is because people have accelerated their growth processes. Souls come together, not to remain together in physical contact, but to grow. When this has taken place the gifts have been given and the lessons have been learned. So don’t you agree that it’s time to move on?”

If the time has come for you to move on, make a conscious choice about how you will close that door. Make no mistake: love’s got everything to do with it.

© 2005 Mindy L. Hitchcock, All rights reserved

Mindy L. Hitchcock is a family law attorney with 19 years experience. She is certified in collaborative law and the collaborative law team approach, a board member of the International Alliance of Holistic Lawyers (IAHL), member of the Collaborative Law Institute of Michigan and a member of the Human Rights Campaign. She is a writer and speaker and maintains two websites, LADY4JUSTICE PLLC, www.lady4justice.com and Mindy’s Access Power Center, www.mindyhitchcock.com. She can be reached at mlhitchcock@lady4justice.com.