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Is there such a thing as a ‘civil’ divorce? Advocates for collaborative divorce say it’s a kinder, gentler way to dissolve a marriage. We find out what it takes, look at the pros and cons, and explore why its popularity is growing in our region.
- Vicki Viramontes-LaFree Is a Family Law Attorney and Mediator specializing in Collaborative Divorce with Pasternak & Fidis
- Kate Scharff Is a clinical social worker with over 20 years of experience working with individuals, couples, and families.
- Carl Mitlehner Is a Certified Financial Planner with Milestone Planning Group
MR. KOJO NNAMDIFrom WAMU 88.5 at American University in Washington, welcome to "The Kojo Nnamdi Show," connecting your neighborhood with the world. Tears, shouting, power plays, threats and ultimatums; hallmarks of divorce. But a growing group says civil divorce doesn't have to be an oxymoron. Advocates of collaborative divorce call it a kinder, a gentler way to dissolve a marriage. With about half of all unions ending in divorce, more and more couples are embracing this alternative approach, and here to tell us more about it in our studio is Kate Scharff. She is a psychotherapist, mediator and co-author of the book "Navigating Emotional Currents in Collaborative Divorce: A Guide to Enlightened Team Practice." Kate Scharff, thank you for joining us.
MS. KATE SCHARFFHi, Kojo. Thanks for having me.
NNAMDIAlso with us is Vicki Viramontes-LaFree. She is a divorce lawyer and partner with the firm of Pasternak & Fidis practicing in Maryland and Washington D.C. Vicki, thank you for joining us.
MS. VICKI VIRAMONTES-LAFREEThank you, Kojo, for having me.
NNAMDIAnd Carl Mitlehner is a certified financial planner with Milestone Planning Group. He practices in D.C., Maryland and Virginia. Carl, thank you also for joining us.
MR. CARL MITLEHNERWell, thank you for having me today, Kojo.
NNAMDIVicki, you are a divorce attorney, but you may be unusual among your peers because you like to keep your clients out of court. Many people think of mediation as the alternative to a divorce settled in family court. How is collaborative divorce different, and how does it work?
VIRAMONTES-LAFREECollaborative divorce is an alternative approach to the traditional combative divorces that we see in the media and on a daily basis. It embraces the collaborative principles of collaborative practice, which is to stay out -- to result to stay out of court and resolve all of your disputes respectfully. Collaborative divorce focuses on the divorcing couple and focuses not necessarily on their divorce immediately but looking at the future for their families and finding a better way to communicate (unintelligible).
NNAMDIHow is different from mediation?
VIRAMONTES-LAFREEYou know, collaborative is a cousin to mediation. They're similar in that they're voluntary processes and also -- while though in some cases in Maryland, they do -- mediation is ordered by the court, but the difference with mediation, and I'm also a trained mediator, and I do practice that as well, but -- and many collaborative lawyers, by the way, Kojo, are trained in mediation in order to do collaborative. But mediation embraces the similar concept of a settlement. That is the goal of a mediator. The mediator is a neutral person. That could be anywhere from an attorney to a mental health professional or another professional who is trained in mediation to reach a resolution with the parties.
VIRAMONTES-LAFREEThe difference is there may be -- they're counsel with them, or they may go alone. Many couples find themselves going alone into mediation, and they don't have the support of their attorneys to go with them, to help them work through the issues involved in a mediation.
NNAMDIAnd in collaboration, it's a team that cannot only include attorneys. It can also include Carl...
VIRAMONTES-LAFREEThat is correct.
NNAMDI...as a financial planner.
NNAMDIOK. Kate, it's tough to turn around without bumping into a lawyer in the Washington area, yet many people to whom we mentioned this subject, including some attorneys, were not familiar with the concept. How common is collaborative divorce in the Washington area?
SCHARFFWell, actually, hundreds of couples in the Washington area have already chosen collaborative as the process by which they're going to restructure their families, and it's a growing number. The Maryland courts recently held a training for over 100 attorneys who are now ready and eager to practice collaboratively.
NNAMDI800-433-8850 is the number to call if you'd like to join this conversation. If you have been through a divorce, clean or dirty, how did you reach an agreement with your former spouse? 800-433-8850. Go to our website, kojoshow.org. Tell your story there. Or send us a tweet, @kojoshow, or e-mail to email@example.com. Collaborating rather than contesting seems to counter to -- it seems kind of counter to what people expect of their attorneys. Are there lawyers, Vicki, who are opposed to this idea?
VIRAMONTES-LAFREEWell, there certainly are lawyers that may be opposed, but what we're finding with collaborative practice is that it's one option. And we have an ethical obligation as attorneys to provide our clients with an informed choice of the variety of options that are available for divorcing couples whether it be collaboration, litigation, mediation or simply sitting down at the kitchen table with your spouse and trying to work it out. So we do have the responsibility to tell our clients and educate them on the best process for them, and so that's what I do. I'm a problem solver by nature and -- but if I've got to go court, I'll litigate in court.
NNAMDIYou say you like this approach because courts do not solve emotional issues, but this process aims to do that. How does it do that?
VIRAMONTES-LAFREEWell, I'd like to say first about going to court. Courts and judges serve a very important role in divorces, in civil matters in general. They're there, and they're there for parties who are unable to work in a collaborative setting to settle their cases. What we do in collaborative practice, and we do have a team approach that is trained in non-adversarial problem solving to get the couple to meet with mutual and respectable ways of coming to solutions on all of their disputes, whether it be children, whether it be support or whatever. So a team -- it's a team approach in a non-adversarial manner.
NNAMDIKate, most professionals involved in this process go through some sort of training. What tools are lawyers and other specialists given when they learn how to work on a collaborative divorce?
SCHARFFSure. Well, I'll let my colleagues from the financial and legal disciplines...
NNAMDIOh, we're about to get to the financial in a second.
SCHARFF...yeah -- speak to their particular training, but I can say that each of the members of the team, and it is a multidisciplinary team, usually, not always, but it's certainly an option to have a multidisciplinary team. And I think those of us who've worked on multidisciplinary teams do find it to be a uniquely powerful approach. But each of us comes with a wealth of experience in our field of origination. And then in order to be a collaborative practitioner, you also need additional training on the structures of a collaborative case, on the principle tenets of collaborative and on working together. I just wanted to dovetail on what Vicki said about the role of court and what differentiates collaborative practice from mediation.
SCHARFFWhat really makes collaborative collaborative is that people agree from the outset, and they actually sign an agreement saying we will not go to court. In fact, we won't even threaten to go to court. And if we do, the -- if we decide to go to court, we actually will lose our attorneys and anyone else on the team that we've hired to work with us as well as the work product. It's a high -- it incentivizes people to stay within the process when the going gets tough. And in fact, where collaborative really shines is when the going gets tough, so you might worry about high-conflict couples in what sounds like a softer process, but collaborative doesn't mean easy. We know it's going to be difficult, but it's the strength of the multidisciplinary team that really holds people in the process, and it's the taking of court off the table that really holds them in the process.
NNAMDIWell, Carl, without a court order to, shall we say, encourage people to reveal their assets, what stops people from hiding money?
MITLEHNERKojo, that's a great question. Part of the participation agreement that the clients sign is that they're going to be completely open. They're going to disclose all of their assets, and they're committed to being open and transparent. And they hire a financial neutral to help them to organize their finances and present it to the team and really to make sure that everything is working properly so that they can make informed and cautious decisions.
NNAMDIHeadphones, everyone, we're headed to the telephones. We'll start with Kathy in Washington D.C. who has a question about finances. Kathy, you're on the air. Go ahead, please.
KATHYWell, my question dovetails very nicely with that last. Sometimes, one of the parties may have a history, you know, of several years of not being transparent about finances, of lying or obscuring information. How do you really protect yourself against that kind of thing going forward, and is collaboration appropriate if that's the situation?
VIRAMONTES-LAFREEHi, Kathy. This is Vicki. I'm going to take an initial shot at that question, and I'm an attorney. You know, no process is full proof that you can guarantee to get every single document or information from the other side. You know, what we do in collaborative practice, though, is we spend a lot of time initially in the participation agreement setting forth the ground rules of how the couples are to behave in the process as well as the team. And one of the things that it's built on is honesty, integrity and cooperation, and along with that, they have -- the couple has a duty to disclose information and documentation to allow us to reach a mutual and respectful solution and help them do that.
VIRAMONTES-LAFREEAs an attorney, I have an obligation if I have the client who tends to be hesitant in disclosing anything, I have the duty to convince my client to really share with the team and the spouse about the assets. And then, we do have a financial neutral, as in Carl, who works with the parties to sort of gather the information in a very safe and fosters the information gathering process, if you will, and then brings it to the team for a discussion. And if you're in court, I mean, there are mechanisms to file motions to compel and try to get information. But if somebody is really set against disclosing that Swiss bank account, there's nothing even we can do -- even a court can do about it. So, hopefully, that answered your question.
KATHYYes. Thank you.
NNAMDI...does that indeed answer your question?
KATHYYes. It does. Thank you very much.
NNAMDIThank you very much for your call. We move on then to James in Silver Spring, Md. James, you're on the air. Go ahead, please.
JAMESYeah. I went through a divorce, and, you know, the attorneys, they know that they're going to be pretty much forced by the court to go through mediation anyhow. So I think the goal is to run up the maximum amount of bills on both sides, and I think the most important player we had was the financial adviser. I mean, a lot of people don't realize that almost everything is disclosed in your tax forms if you've ever made money on stocks, on accounts, on real estate. As long as you have copies of your tax forms, you have 90 percent of what you need. And if someone is cheating on their taxes anyhow, like the lady just said, you can hide those accounts, and you're not -- no matter what the process is.
JAMESSo the question I would have is, you know, collaborative, you basically got attorneys that are now, you know, pitching their collaborative, you know, process, but how much are they really saving? Then, you still have attorneys on both sides, and then, you have other players. So how much are they really saving?
NNAMDIWell, we only have one attorney here? Our other guests are a psychotherapist and a financial planner. But the question of cost is important, James, because this involves hiring a team of professionals. And as a result, a lot of listeners may see dollar signs ringing up before their eyes. Just how expensive is it, Kate?
SCHARFFWell, let me say first as to the matter of cost that collaborative divorce is actually typically less expensive than a litigated divorce, and the reason for that is that we work very efficiently. So, yes, it seems like a lot of people at first, but actually what it is, is experts in their fields doing the aspect of the work that they do best. So the product is better. It's achieved more quickly and more efficiently, and therefore, costs are contained.
VIRAMONTES-LAFREEAnd I'd like to just add to what Kate was saying, and that is -- is that -- it's an efficient process because the client see the attorneys and the team in front of them doing mostly all of the work, whereas if you're in a traditional negotiation or even getting ready for court, it's all behind the scenes. The client is obviously consulted and get -- we get approval for various things that we're doing, but yet, they don't see that we're making millions of phone calls back and forth to witnesses, to the opposing party, to counsel to get ready for court. So it's an efficient process, and you get better value because the clients are seeing what they're paying for in front of them.
NNAMDII'm reliably informed that, in 2007, the Boston Law Collaborative analyzed 199 of its divorce cases. It found that mediation had a mean -- median cost of about a little under $7,000 followed by a little under $20,000 for collaborative divorce, a little over $25,000 for a divorce settlement negotiated by council and a whopping $78,000 for a litigated divorce. We're gonna take a short break. When we come back, we're talking about collaborative divorce, which more and more couples seem to be opting for.
NNAMDITaking your calls at 800-433-8850. Have you been part of a collaborative divorce? Tell us what the experience was like, 800-433-8850. Or send us a tweet, @kojoshow. I'm Kojo Nnamdi.
NNAMDIWelcome back to our conversation on collaborative divorce. We're talking with Vicki Viramontes-LaFree. She's a divorce lawyer and partner with the firm of Pasternak & Fidis, practicing in Maryland and D.C. Kate Scharff is a psychotherapist, mediator and co-author of the book "Navigating Emotional Currents in Collaborative Divorce: A Guide to Enlightened Team Practice." And Carl Mitlehner is a certified financial planner with Milestone Planning Group. He practices in D.C., Maryland and Virginia. And, Carl, as a financial planner, talk a little bit about the cost of collaborative divorces.
MITLEHNERWell, Kojo, you know, let's face it. Divorce in our society can be very expensive. You know, what we're trying to do is find the best value for our clients' divorce dollars. We want the clients to evaluate the process and the options and choose the one that best serves them. You know, collaborative divorce is generally very efficient. In a traditional divorce, we have each side gathering financial information, whereas in collaborative, you have one financial neutral gathering that information.
MITLEHNERIn a traditional divorce, you have the attorneys working through the parenting plan and, a lot of times, in a collaborative divorce, we have mental help practitioners that typically have a lower bill rate, who are experts in dealing with the parenting issues, coming up with the parenting plan. We also have the coaches serving a role of helping the clients get through the emotional issues of divorce and much more quickly getting to a point where they can deal with the issues of divorce so that, finally, they can get to a point where they're reaching a mutually agreeable lasting agreement.
NNAMDIWell, some of our more skeptical listeners, Kate, may be picturing a group of people joining hands and singing "Kumbaya" around a conference table. Here, for instance, is William in Burke, Virginia. William, you're on the air. Go ahead, please. Hi, William. Are you there? William, come in, William. William, it is my understanding, says this -- is very skeptical about this. How do you arrive at cooperation, William would like to know, between otherwise unreasonable people?
SCHARFFWell, I mean, people going through divorce are really at their worst in terms of their capacities to think, to make decisions and to work cooperatively, and that is why collaborative is such a powerful model. The mental health people on the team are really there to shepherd the clients emotionally through the process. We know people are scared. We know they're angry. We know they haven't been getting along. We know they don't wanna be there. And we know that there are days when it's probably all they can do to put one foot in front of the other.
SCHARFFSo we're really there to help them to identify what are their goals and interests, what are the concerns they have. If they really feel very wedded to staying in the marital home and their spouse feels it must be sold in order for them to move on financially, what are the underlying concerns, and how do we address them so that we can generate options that they can both live with? We work very hard to help people to develop better modes of communication, to develop skills for deescalating conflict, and we want these skills to survive the process.
SCHARFFWe don't just want them to get through it. We want them to be able to get on with their lives. And if they had children, we want them to be able to co-parent effectively. And, as Carl said, we do work with the couple on developing a parenting plan. And this is a document that's thoughtfully and carefully crafted, that outlines all the ways in which the couple is going to work together to take care of their children into the future. And, yes, it includes the basics, like an access plan, how are the children going to spend their time week to week and how are things like vacations and summers and holidays going to be divided.
SCHARFFBut it also includes thinking about things that the couple may not have anticipated. How are they going to make decisions about things for their children, like extracurricular activities? Is the child gonna play soccer or softball, and if they don't agree, what are they gonna do about it? How do they wanna think about the introduction of new significant others in the future? How are they going to communicate about their children? And, importantly, what is the shared narrative?
SCHARFFWhat is the story that they're going to put together that is true but that is geared toward their children's developmental stage and capacity to take in information and process it that they're gonna offer to their children to understand what is going on in their family and what they can expect in the future?
NNAMDIWell, you've all worked together before, it's my understanding, so you may be able to address this from Jane in Fairfax. I'll start with you though, Vicki. Jane says her husband is refusing to leave the family home. She feels insecure because he's, well, just not going. How would that be handled in a collaborative divorce? She has four teenagers.
VIRAMONTES-LAFREEAnd that's a common question, as how do you get one of the spouses out to deescalate the tension that is functioning in the family. And what we do in collaborative, you know, there's three pieces in collaborative. You've got the legal and the financial, and Kate was touching on the emotional issues. And the emotional issues are really what drive up the cost of a divorce. And collaborative is perfect for deescalating the emotional issues but also helping bring those issues to the forefront so that we can resolve as a team.
VIRAMONTES-LAFREESo with those emotional issues, we would have -- we would brainstorm ideas and options, and one of their pressing issue may be how do we separate as, you know, the spouses? That may be one of the questions they wanna answer or maybe the wife's question to be answered. And so then, as a team, we would brainstorm with the clients to say, okay, what do you want? What do you want? And we would just be very creative and think out of the box and hopefully come to an evaluation and a situation.
VIRAMONTES-LAFREEAnd with Carl's help a financial to help us figure out whether this family can support two households. And if they can't, then what do they need to do to get there? And so, it would -- it's always looking towards problem resolution along the way, and so that's how we would initially handle it.
NNAMDIOn now to Monica in Takoma Park, Md. Monica, your turn.
MONICAHi, there. I'm actually a newlywed, but I'm also a community organizer so it's nice to hear that something like collaborative divorce even exists. So, I was just wondering how long this, I guess, procedure has been going on for because we see it also, like, in the media with the high celebrity profile divorce cases? And I'm just wondering if it's now, like, trickling down to the masses and basically just how long it's been around for.
NNAMDIIt's my understanding that the practice was developed in 1990 by Minnesota lawyer Stu Webb. But, Vicki, you can tell us some more about it.
VIRAMONTES-LAFREEYes. Stu Webb is the father of collaborative. He was a family lawyer in Minneapolis, Minn., and in 1989, he was getting very disgruntled and unhappy with combative litigation divorces. He didn't like what was the result of -- for clients and families. And he didn't like the -- how it really tore apart at his relationships with his colleagues. And so he was about to give up being a family lawyer and decided -- you know, before he did that, there has to be a better way to resolve disputes respectfully. And he started his shift in practice and basically had moved from litigation to trying to resolve disputes without going to court and just through a settlement.
VIRAMONTES-LAFREEAnd it basically spread through word of mouth. We've been -- it's been really over two decades now. It started in the '90s. It's expanded exponentially in the D.C. Metro area. We have over 100 of mental health professionals, financials and attorneys, all collaboratively trained. And in fact, this last March, the Maryland State court sponsored a training for another 100 attorneys that included judges on collaborative divorce.
NNAMDIAnd, Monica, if you'd like more information about the history, you can go to the website of the International Academy of Collaborative Professionals. That website is collaborativepractice -- one word -- dot com. We'll provide a link at our website, kojoshow.org, but their website is collaborativepractice.com. Thank you very much for your call.
VIRAMONTES-LAFREEKojo, I just like...
VIRAMONTES-LAFREE...add, there's another local website called www.dcmetrocollaborative.org. And that has a links to all of the websites of the local practice groups collaborative as well as the international Collaborative group that you just gave the listener.
NNAMDICarl, I've heard it said that you can divorce your spouse but not your settlement agreement. What are some of the financial aspects of divorce that people tend to make rash decisions about in the moment, and then regret later? I want the house. Is that one of the more regular? Is that one of the more regular?
MITLEHNERWell, often, Kojo, you will find as people go through divorce, they're operating from a position of fear. You often have a moneyed spouse and a non-moneyed spouse. And the non-moneyed spouse is that a situation where they've got to make a decision that is going to affect them for the rest of their lives. They are worried very much about their security. And our role is to help both of the clients come to an agreement that they both can live with and really slow down the process and be able to evaluate once they've brainstormed the various options and to evaluate what decisions are going to be in their best interests, what's going to satisfy their interests and what's gonna satisfy their needs so they are -- they don't end up with a buyer's remorse down the road, but that they've carefully thought out the ramifications of their decisions.
NNAMDIBecause, as you pointed out, one partner is usually dominant in finances, in terms of handling finances in the home, how do you bring the less-knowledgeable partner up to speed?
MITLEHNERThat's a great question, Kojo. I think, as a financial neutral, one -- I have several roles, but one of my roles is really to work for both of the parties in terms of an education piece. You may have one party who thinks they know a lot about their personal finances, but really both of them need to be brought up to the point that they're aware of the financial implications of all of their decisions, and they're able to make an informed, cautious decisions. And so, I try to present that information in a very clear and concise manner to enable them to do that.
SCHARFFAnd, Kojo, this is where the multidisciplinary collaboration really shows its stuff, because the clients need the very crucial information that someone like Carl has to offer. But they also have to recognize the fact that they got to where they are through a process of relating to each other in particular ways over time. So if the marital dynamic was that one person really took charge and the other person adapted a more dependent stance, we had to take a look at that, because we're gonna need to restructure that relationship in order for those two people to go on and move on with their lives in independent ways.
NNAMDIWell, here's an example. Here's Esther in Washington, D.C. Esther, tell us your story.
ESTHERHi, Kojo. Thank you for having me on the show. I love your show. And this is interesting to me. I am divorced. And as part of my divorce agreement, my ex-husband was to pay for half of college for our daughter. But when it actually came the time to pay for half of college, he refused to do that. And so, in previous talks on your show, your panel discussed how you choose between soccer and softball, and how you make these other decisions. And I'm wondering how they deal with the issue of college, paying for college. And, you know, have they done this before? And is it part of their standard agreement?
NNAMDII don't wanna be too intrusive here, but was your ex-husband's refusal to pay for college based at all on the cost of the specific college or was it a general refusal to pay for any college?
ESTHERWell, of course, he was claiming he couldn't afford it. However, we did end up going to court over this matter, where the judge looked at both of our finances. And the judge decided he could indeed afford to pay for college. Does that answer your question?
NNAMDIYes, indeed it does. But here is an expert. Vicki?
VIRAMONTES-LAFREEWhat I like to say that, first of all, if couples go to court, the court does not have authority to award or order college to be paid by either party or either parent. But as you explained, you had an agreement outside of court. And so, in collaborative, you -- the goal is to reach an agreement, and you're not in court. And frequently, it is the case that parents wanna know what's gonna happen when their children are able to go to college, who's gonna pay for it, where are they gonna go, and how are those decisions gonna be made.
VIRAMONTES-LAFREEAnd the beauty of collaborative is that you can -- it's a creative process. And it's not cookie cutter. So you can be as creative and think out of the box as the clients themselves wanna bring issues to the forefront. And we can help them bring out those issues in options, whereas the court is very focused on the snapshot at that day and time based on the circumstances. So if you're in collaborative, we would have been able to talk about college and...
NNAMDISo if they start out in collaborative and he says, I want, well, community college. And she says, no, Harvard. You got to miss -- is there halfway point that they can meet?
SCHARFFI think overall, in collaborative, most couples usually come around to reaching a resolution. It may not be what they, you know -- you're talking positions. And we try to stay and stir them away from positional. And as attorneys who are trained to be positional and adversarial, we're trained not to be. And so we tried to understand why one wants a community college versus why one doesn't and wants Harvard, and try to get behind why they're saying what they're saying other than just to disagree, because we just wanna focus on agreement.
NNAMDIThank you very much for your call, Esther. We move on to Bruce in Washington, D.C. Bruce, your turn.
BRUCE...portraying not see.
NNAMDIBruce, you need to turn your radio down and just to talk us on the telephone. I'm gonna put you on hold. And I'll get back to you. And we can pursue the conversation in that way. Divorce is inherently an emotional experience, but you stressed the importance of taking emotion out of the equation when it comes to finances, Carl. Why is that important? And more importantly, how do you that?
MITLEHNERWell, Kojo, I mean, I think emotion is very important in the whole divorce process. And as Vicki just mentioned, we need to understand what is behind those emotions. And oftentimes, clients have underlying interests and needs. And what we need to do is really explore with those clients what are their interests, what are their needs, what are their goals, and help them to understand as well as for ourselves to understand so that we can then explore the options that make sense to them and satisfy those underlying interests and needs.
MITLEHNERAnd so, we don't ignore the emotions as much as we examine the emotions and help to manage the emotions so that they can make decisions that aren't blinded by emotions.
NNAMDIWhat if the client says, what I need is to choke him until he can't breathe anymore?
SCHARFF(laugh) Look, I mean, this, sort of, relates back to -- I think it was William who wrote in a concern about the perception of collaborative divorces being Kumbaya process.
SCHARFFLook, collaborative doesn't mean easy. Divorce isn't easy. We know that. This is not a process that lacks rigor or serious thought. But it is a process that takes a look at the divorce from all angles, and that's what really allows us to move through it efficiently. This is a process that encourages clients to make their own decisions but in an informed way. So dovetailing on what Carl was talking about, about the relationship between emotion and financial decisions -- so I recently worked with a couple.
SCHARFFThe husband was a very high-powered attorney who worked gazillion hours a week and made an awful a lot of money and got very worried that he was gonna be locked into a support number, we are talking about alimony and child support, that required him to continue to work at the pace that he was working. But he really didn't wanna do that. He was exhausted. And he was, you know, of a certain age, and really interested in dialing back and exploring some vocations that had always been of interest to him.
SCHARFFWe were actually able to generate options for him to be able to do that. And his wife was supportive of that, because we also kept in mind that her needs needed to be met. So when people feel they're heard and that their needs are going to be addressed and that the options that are generated are gonna be evaluated with the entire family in mind, it's amazing how creative we can be.
NNAMDIGot to take a short break. When we come back, we will continue our conversation on collaborative divorce. Taking your calls at 800-433-8850. I may be a high-powered lawyer now, but I see a future in panhandling. How do you handle that? 800-433-8850 (laugh) is the number to call. You can join us for this conversation. You can also go to our website, kojoshow.org. Send us a tweet, @kojoshow, or email to firstname.lastname@example.org. I'm Kojo Nnamdi.
NNAMDIWelcome back. We're discussing collaborative divorce with Carl Mitlehner. He is a certified financial planner with Milestone Planning Group, practices in D.C., Maryland and Virginia. Kate Scharff is a psychotherapist, mediator and co-author of the book "Navigating Emotional Currents in Collaborative Divorce: A Guide to Enlightened Team Practice." Vicki Viramontes-LaFree is a divorce lawyer and partner with the firm Pasternak & Fidis, practicing in Maryland and D.C. Vicki, the idea of a child having to go to court to tell a judge they want to live with which parent or which parent they don't want to live with, that's a nightmare scenario for any parent going to a divorce. How is child custody handled in the collaborative process?
VIRAMONTES-LAFREEYou're right, Kojo. In fact, judges do not like to have children come to court to testify. Occasionally, if the case warrants, the judge will take the child behind in chambers and talk to him or maybe ask him a few questions, but that's really done as a last resort. So what happens when you're in court, basically, you -- it's a battle. It's a custody battle. And they're -- it's dealing experts. Sometimes you have battling custody evaluators or you may have a court-appointed custody evaluator to interview the family and the children and decide who should go -- who should have the kids and in what kind of a physical custody situation should it be -- sole custody, primary custody or joint custody -- and where are the kids gonna sleep at night.
NNAMDIKate, you wanted to say something about that?
SCHARFFYeah. Collaborative divorce is really unique in that we have a way of bringing the voice of the child or the children into the process that's healthy and helpful. Parents have the option of bringing someone onto the team who's called a child specialist, who has similar training to that of the other mental health professionals on the team in that he or she is a clinician with years of experience working with families who are going through separation and divorce and a knowledge of child development. They're often child therapists in other parts of their lives. And this is someone whose job it is to meet with the child or with the children to meet with the parents in some configuration and to get a kind of emotional snapshot of how the child is doing.
SCHARFFWe are very clear, we say to kids, you know, we are not asking you to tell us where you'd like to live or which parent you prefer. We aren't actually gonna give you that power, but we do care how you feel. We often learn a lot. A colleague of mine recently told me about a child she was working with, as a child specialist, and she learned from this child that he had the idea that his parents were separated for a while, and at the point that he decided his parents were ready, they were going back together. It was a fantasy, of course. You know, he wanted it to be true and he was also terrified that it was true.
SCHARFFWe take the information we learn, as child specialists, about the children, their fantasies, their fears, things they'd like us to tell their parents back to the process. Parents often have a lot of anxiety about this. We are not custody evaluators, as child specialists. We are not there to make recommendations. And if there are vulnerabilities in any of the relationships between, you know, say, between mom or dad and the child, we are not going to make hay of those vulnerabilities. We wanna shore them up. That information then gets fed back into the process, and it's used by the parties and their coaches as -- to inform them as they craft their parenting plan.
NNAMDIWe have Laura in Fairfax, Va., who has been involved in a collaborative process involving parenting. Laura, you're on the air. Go ahead, please.
LAURAHi. I actually came in to this process through the back door. About a year ago, I was listening to a public radio in New York and they devoted the show to talk about how my parents told me they were getting a divorce. And I listened really hard to that and realized that my soon-to-be ex-husband and I really would need to have our act together to tell the kids in just the right way. Otherwise, they could, you know, be more scarred than, you know, than we would imagine. And so I sought out a child advocate and developed a parenting plan even before we saw anyone legal and we’ve kind of done a hybrid of mediation and collaborative.
LAURAAnd I'm just really calling in to encourage other parents to consider seeing someone, you know, about a parenting plan and how it's really been a positive experience between my soon-to-be ex and myself. And it really gave me -- it was a difficult moment to live through to tell my children of our, you know, decision that would alter our family, but I don't really see how I could have done it without. So...
LAURA...just want to share that with your listeners.
NNAMDIThank you very much for sharing that with us. I have Ken in Rockville, Md., who would also like to share his experience in this process. Ken, your turn.
KENYes. First thing I wanna say is that I'd go through this process again. It was positive process, but there are few things that I wondered about. And I guess I was smart saying the mental health professionals did a great job, the independent financial adviser did a great job working for both of us, but the two lawyers won. Now, I wondered if there could have been -- it occurred to me during the process if there could have been one lawyer for both parties -- this is not a traditional adversarial relationship -- if that would work? If someone could comment on that, (unintelligible) ...
NNAMDIHere is Vicki Viramontes-LaFree.
VIRAMONTES-LAFREEThank you for your question, Ken. No. In collaborative, you have to each have a collaborative attorney as you did in your case. Generally, you know, for attorneys to do collaborative work and be trained, attorneys have to get out of -- they have to have what we call a paradigm shift. They have...
NNAMDIIsn't this one of the reasons that Stu Webb started this in the first place? He thought he was bringing him in conflict with too many of his colleagues.
VIRAMONTES-LAFREEExactly. And the paradigm shift is the attorneys have to start rethinking and relearning how they interact in a divorce setting when you do collaborative. Collaborative is totally non-adversarial, and so you leave the positions outside the door.
NNAMDIDo attorneys need special training for this?
SCHARFFYes, they do. There are a number of trainings and advanced trainings, and I've done very numerous trainings and continue to do so. I took my first team training in 2005, and the basic requirement is a three-day training of interdisciplinary -- how to interact as a team both with the financials...
NNAMDIYou've got to take off your adversarial hat when you go into the collaborative proceeding?
MITLEHNERLet me just say, Kojo, I think, you know -- Ken, I'm glad that you had a very positive experience in the collaborative divorce. I've worked with dozens of divorce attorneys in the Greater D.C. area, and you do have the occasional attorney who still needs to make that paradigm shift. But let me assure you that the way collaborative is going in the whole D.C. area, that there are a tremendous number of very well trained, very collaborative attorneys that are out there practicing.
NNAMDIWell, let's see if Barb in Washington, D.C., is one of them. Barb, you're on the air. Go ahead, please.
BARBHi. Thanks for allowing me to call. And I was wondering if the panelists could speak to how the collaborative process is available to couples other than folks going through traditional divorce. So, for example, non-married couples that may share a child together, or is it available to same-sex couples that are dissolving a relationship and they share a child together?
NNAMDIBarb, it's my understanding that you are a collaborative attorney -- divorce attorney yourself.
BARBI am. I am.
NNAMDITherefore we'll have your colleague, Vicki, respond to that.
VIRAMONTES-LAFREEWell, Barb, as you probably know, collaborative practice -- we call it collaborative divorce because we're dealing with divorcing couples. But it embraces the principles of resolving disputes respectfully in collaborative practice -- that's the underlying principle -- and without going to court. So it is ripe for -- collaborative practices ripe for any kind of dispute that you have ongoing relationships after the dispute is over. So whether it be traditional couples, non-traditional couples with children, whether it be an employment case, probate case, real estate case, those are ongoing relationships that you wanna foster a positive relationship going forward. And therefore the collaborative process would be appropriate.
NNAMDIBarb, thank you very much for your call. We move on to Bruce in Washington, D.C. Bruce, you're on the air. Go ahead, please.
BRUCEThank you and good afternoon to you and your guests. This may be kind of an unusual situation, but my ex and I went through a divorce about four years ago very, very amicably. I didn't even get an attorney. But what we did was we sat down and we chose to make the decision, from the get-go, that relationship to our children, who, at that point, were adults, was more important than disputes between us. And so we sat down and worked it all out. I didn't even get an attorney.
BRUCEAnd it worked out really well. And she and I have remained very good friends. And there was no rift in the family at all. And, to me, what you have to do is decide to act like an adult instead of acting like a child.
BRUCEAnd if you're a man and if you have children, you've got to take responsibility for your children. If you're a woman and you have children, you've got to do the same thing.
NNAMDIThere was a piece in the Post today, Bruce, on the negotiations currently taking place on Capitol Hill over one thing or another. And one of the headline warnings was never accuse your -- never tell your opponent to act like an adult. (laugh) But I guess it's different in divorce because, in Bruce's case, one gets the impression that there was, Kate, a level of trust between both parties. But if you're considering a divorce and you're convinced that your spouse is a pathological liar, is collaborative divorce a good option for you?
SCHARFFWell -- I mean, the short answer is yes. Most people come into divorce thinking that their spouses are some version of something awful, like a pathological liar. And it's true that when people are getting divorce, they don't stop doing the difficult things that they were doing before. They do them more. But collaborative divorce is really a process by which we hold people to a higher standard. We really want people to function as their highest self, whatever that capacity is.
SCHARFFNow we know that some people have more capacity to grow through the experience. Some people really sail through, even through the hard parts. They are able to take responsibility for what happened in the divorce. They are able to develop empathy for their spouse. They're really able to make use of the process to come out the other side open to new kinds of opportunities.
NNAMDIBut we got an email asking about circumstances when the process might be a bad idea.
NNAMDIUnder what circumstances?
SCHARFFRight. Well, again, I think that it's very hard to know going in, even in the most difficult cases, which ones are gonna succeed and which ones are gonna fail. In our experience -- certainly in my experience, and I can ask my colleagues about this -- almost all couples are able to reach a successful resolution in this process. But as I was saying, some couples sail through and do beautifully, and others sort of get by by the skin of their teeth. But we have still kept them out of court, and that it's still a success.
NNAMDIHow about situations in which there is -- are allegations of domestic violence?
SCHARFFYes. Well, you know, domestic violence is a broad category in all -- not all families where domestic violence is an issue looked the same. I think I would say about that that having a sense of physical safety is crucial. So if you are concerned that you are at risk and that your physical safety is under threat, or that there might be some backlash for any conversations that we might have at the table, I think probably the first stop is either a protective order or the office of a domestic violence expert.
NNAMDIHow about cases in which there is either untreated or unacknowledged substance abuse?
SCHARFFRight. Well, I actually had a lot of success -- surprising success -- working in cases where there is substance abuse. For example, I recently worked in a case where mom had a long history of alcoholism. Now she was not convinced that she was an alcoholic. But in order to move through the process successfully and to stay out of court, she was willing to agree to a structured plan by which she agreed to get treatment, to be monitored and to have a stepped up schedule of access with her children, which included some supervisory...
NNAMDIWe're running out of time very quickly, but I wanted you to be able to address Janice in Herndon, Va., Carl Mitlehner. Janice, you're on the air. Go ahead, please.
JANICEHi. Can you hear me?
JANICEOK. I'd like to know how the non-traditional process of collaborative divorce has helped women or men recapture the costs associated with the cheating spouse's escapades.
MITLEHNEROK, Janice. I think that question might be a little bit legal in nature. From a financial standpoint, as we're going through the divorce, we're looking at a number of things. We start out gathering information from the clients, and part of that is really looking at what's the history of the clients, what has happened, what's transpired before this point, as well as what are the interests. And if one of the interests is addressing maybe some of the marital waste that has gone on prior to the divorce, we're really gathering that information and then coming up with options as far as how we wanna handle that.
MITLEHNERAnd it's getting the input from both of the clients as far as what this means to them and how they would like to have it addressed. And we're brainstorming -- excuse me -- options on ways to handle that. And Vicki, I think, might wanna talk to the legal aspects of that.
VIRAMONTES-LAFREEWell, one of the things that collaborative attorneys do in the process is when we have this information about finances and what is the family's situation look like, we -- you know, there's various ways to come up with a decision or help couples come up with a decision. One of them is the law. I mean, what would the law say about this? There's a term of art in divorce law called dissipation, which is basically when...
NNAMDIWell, she's been taking money out of our joint bank account, a flight to California every weekend to meet with this guy, and it's sunk our account by $40,000.
VIRAMONTES-LAFREEYes. And so if that happened while the marriage is irretrievably broken, absolutely. It is an issue. It needs to come out in a constructive way. We need to contain the emotion, but also address the emotion. So we'll talk about the legal ramifications. We'll also talk about other ways of resolving. You know, is it -- sense of fairness. Is there any prior agreements? Is -- you know, we call them reference points. So there's more than just the law in collaborative that overshadows how do you reach durable agreement.
NNAMDIAnd I'm afraid that's all the time we have. Vicki Viramontes-LaFree is a divorce lawyer and partner with the firm of Pasternak & Fidis, practicing in Maryland and in D.C. She's the incoming president of the Collaborative Dispute Resolution Professionals, a collaborative law professional society based in Montgomery County. Kate Scharff is a psychotherapist, mediator and co-author of the book "Navigating Emotional Currents in Collaborative Divorce: A Guide to Enlightened Team Practice."
NNAMDIShe's founder and principal of the Collaborative Practice Center of Greater Washington, and president of the D.C. Academy of Collaborative Practitioners. And Carl Mitlehner is a certified financial planner with Milestone Planning Group. He practices in D.C., Maryland and Virginia. Thank you all for listening. I'm Kojo Nnamdi.
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