Collaborative Divorce in Difficult Economic Times

      By Christopher M. Moore of Moore, Bryan & Schroff LLP

The Available Choices

It’s the hardest decision you’ve ever made: to terminate the marriage. The decision is made, now how do you do it? There are three ways to go: litigation in the court system, Collaborative Divorce or mediation. You can always litigate the case in the court system. To do Collaborative Divorce or mediation will require you and your spouse to agree on the method. There are benefits and pitfalls of each.

Conventional Litigation: The Good, the Bad and the Ugly

 

The Good:

 If you go to court, eventually you may get to tell your story to a judge. You can get the court to take charge of your case and make orders. In some cases, say where there is abuse or hidden assets, resort to the court may be the only way out. Most cases are still settled in this fashion.

The Bad:

A visit to the courthouse often ends in frustration. While you may get to tell your story to the judge, your spouse will be able to do so as well and you may find it difficult, even with the help of a lawyer, to get your story across to the court. Your spouse’s story may be wildly at odds with yours and, to your chagrin, the judge may believe your spouse, not you.

The Ugly:

In today’s economy the courts, like everyone else, are short of money. Courts have reduced their staffs in recent years and more cuts are coming. There are simply not enough judges to hear all the cases and delay is the rule in large counties like Los Angeles. Routine hearings are often delayed for months, and it can take a year or more to get to trial even in a relatively simple case. When your case comes up for hearing or trial, the judge may have a dozen or more cases on calendar that day and the time allotted to your case may not be enough to get all of the facts before the court that you had hoped you could. There may be so many cases that yours can’t be heard on schedule and you have to come back another time, perhaps weeks or months away. All this takes money.

The cost of trying a divorce case the old-fashioned way is legendary. Your lawyer will likely cost from $250 an hour to $500 an hour or more. In all but the simplest cases, each side may have to hire a forensic accountant who charges fees similar to those of the lawyers. If there is a contested child custody issue, the parties may need the services of a custody evaluator who will recommend to the court what the custody order should be. The evaluation process takes months and is expensive. Each side takes the most extreme stand it can, hoping that the court will rule closer to its position than the other side’s. Even in a simple case the fees can run into tens of thousands of dollars. In a more complex case there is truly no limit to the cost. The cost of conventional litigation often puts it out of reach of the middle class or even affluent family, particularly in today’s economic climate where the family home equity may be negative, one spouse or both may have lost their jobs, and the family business may be bankrupt or nearly so.

Mediation

 The Benefits:

Mediation is a popular alternative to litigation. It’s less expensive than using the court system and avoids court delay and congestion. The mediation process is confidential and nothing said there may be used later against you in court. It’s informal and can resolve cases quickly. If there are factual disputes, the mediator may recommend a neutral expert like an accountant or child specialist to help resolve questions like valuation of a business or a parenting plan for the children. Using neutral experts avoids the double fees and polarization that can occur when each side retains its expert, as happens in litigation.

The Pitfalls:

Mediation can have a downside. Anyone can call himself or herself a mediator. There are no licensing requirements for mediators. Ideally, the divorce mediator is an experienced divorce lawyer who is trained in mediation.

The potential for abuse is often cited as the most serious potential problem in mediation. A domineering spouse with a history of physical, verbal or mental abuse may propose mediation as a way to get what he or she wants in the divorce settlement. If your spouse has dominated you throughout the marriage and you’ve had many arguments about money or other things and have never won one, or you feel afraid to argue with or challenge your spouse, mediation is probably not right for you. In mediation the parties meet with the mediator alone, outside the presence of their lawyers, and if the playing field is not level because of the parties’ relationship, mediation is not likely to produce a fair or reasonable outcome.

Collaborative Divorce

Collaborative Divorce often offers the best path to a divorce settlement that is cheaper, faster and more amicable than going to court, while avoiding the potential for abuse sometimes found in mediation.

How Collaborative Divorce Works

In Collaborative Divorce, each party has a lawyer. The parties sign a stipulation that they won’t resort to court, won’t do formal discovery like depositions and written interrogatories, will voluntarily exchange information and will settle the case by agreement. If either side decides to end the collaborative case and go to court, both lawyers are out and each party must obtain a new lawyer to litigate the case. Like mediation, everything said in a collaborative case is confidential and may not be used in court in any later litigation. The case is handled through a series of meetings with the lawyers and parties. The number of meetings it takes to reach settlement will depend on the complexity of the issues and the parties’ emotions. The goal of Collaborative Divorce is to mold the parties, lawyers and coaches into a team that tackles problems in a cooperative and positive way. The professionals are trained to find imaginative solutions that avoid deadlock and result in a win-win outcome wherever possible.

Coaching

In most divorce cases, particularly at the outset, emotions run high. One party or both may be experiencing feelings like anger, denial, anxiety, depression and other negative emotions. Parties experiencing these dark feelings find it hard to reach agreement on the real issues like the financial settlement and working out a parenting plan in the best interests of the kids. To work past these negative emotions, the lawyers will urge each party to have a coach, a mental health professional who is a counselor or therapist in his or her practice. The coaches don’t act as counselors or therapists for their clients in a collaborative case though. Rather the coaches’ role is to create a team of the parties, the coaches and the lawyers. Each party and coach will meet separately and then all four will meet together. It may only take one or two meetings for the coaches to get the parties past the negative emotions so they are ready to move on with the real issues.

Teamwork is the key to a successful collaborative case. Lawyers and mental health professionals who practice Collaborative Divorce have been trained in the techniques that help mold both sides into a team with one goal.

Where there are factual or legal issues that require an outside expert, the lawyers will agree on a neutral expert such as an accountant or child specialist who will propose an appropriate solution.

Collaborative Divorce is not without its negatives. The cost of the professional team, with lawyers, coaches and possible neutral experts may seem daunting. If collaboration fails and the case must go to litigation, there is a cost to the parties in hiring new lawyers.

Experience teaches, though, that Collaborative Divorce almost always produces an outcome faster, cheaper and more amicably than conventional litigation. The risk of changing lawyers deters the parties from dropping out of collaboration and resorting to litigation. That each party has a lawyer avoids the potential for abuse and levels the playing field between the parties. Mental health professionals acting as coaches reduce the parties’ anger so they can get to the negotiating table. Neutral financial experts avoid the cost and polarization that occurs when each side has to hire its own expert as in a conventional case.

A strong case can be made that in these difficult economic times Collaborative Divorce offers the best route to a divorce that is fast, friendly and fair.

How to Find a Collaborative Professional

 

To find a collaborative lawyer in the South Bay area, visit www.abetterdivorce.com. For a collaborative lawyer in the Greater Los Angeles area,visit the Los Angeles County Family Law Association at www.lacfla.org.

Christopher Moore is a member of A Better Divorce, a Collaborative Divorce practice group in the South Bay area of Los Angeles County. He is certified as a family law specialist by the State Bar Board of Legal Specialization and practices Collaborative Divorce, mediation and litigation in Torrance, California. Chris received his AB from Stanford and his JD from Harvard Law School.  He speaks and publishes frequently on law-related subjects.

XX-YY The Case For Gender-Balanced Divorce Coaching (Part 2)

By Robert Rutman 

Part two of a two part article. Read Part one of this story here.

Nancy Ross and Pauline Tesler have given us some direction on this subject.  They have suggested that if we could contain the emotions that exist in the highly charged atmosphere of divorce, we could expect a less chaotic process and a more successful outcome. The short list of these disruptive emotions includes anger, fear and hurt.  Nancy’s group expanded this list to include broader categories of personality characteristics.  They suggested that if problems arose during divorce negotiations, they would likely be related to the following: female – dependency, nurturing and cooperating; male – independence, providing and competing.  With the acknowledgement that there could be major exceptions to the following hypotheses, I propose: (1) that it is more likely that female coaches will understand these female characteristics and (2) that it is more likely that male coaches will understand the male characteristics.  This understanding, when effectively communicated to the partner, is one of the central ingredients of effective coaching interventions, as it often is in therapeutic interventions.

When we first began our work over five years ago, and had not completed even one case, we could only consider the significance of this gender-related understanding from a theoretical, or intuitive perspective.  For example, our practice of gender-matching coach to partner has been predicated on the following sequence of intuitive premises: Males can better understand males and females can better understand females (rather than the opposite). If the feeling of being understood is successfully transmitted from coach to partner, and if this feeling increases the effectiveness of the coaching relationship, then it makes sense to match coach and partner.  Because we now have more than 150 cases from which to extract information regarding what works and what does not work as well, we have the additional data from an experiential perspective.  Put another way, data from our experience to date has taught us much about coaching effectiveness in general, and, in particular, about the advantage of gender-matching coach and partner.

As I look back on the cases I have done, two factors rise above all others in their ability to distinguish successful from unsuccessful outcomes. These factors are (1) the connection I make with the partner, and (2) the dynamic that is evident in the four way meetings.  When we first learned about coaching by listening to Pauline Tesler, Stu Webb and Nancy Ross, the contrast to therapy was strongly emphasized.  These teachers made it clear that coaching was time and goal limited.  We were trying to make the divorce better, not the marriage.  As such, we were not supposed to “do” therapy.  Since then, I have realized that not “doing” therapy does not prohibit me from doing “therapeutic things” while face to face with a person going through a very traumatic time in his/her life.  These therapeutic things include, but are not limited to, listening compassionately, responding empathetically, and creating a working relationship whose primary purpose is to teach the partner how to successfully navigate through the twists and turns of his divorce.  If I prohibited myself from being “therapeutic” in this way, I could not succeed as a coach.

The obvious benefit of successfully establishing a good working relationship with the partner is that specific troublesome issues can be neutralized through the development of strategies during the two-way meeting.  By the time the second two way meeting is over, I am confident that if certain issues come up in the four way, we will be able to avoid a major emotional spill.  Without belaboring the point made earlier, I believe that a portion of my ability to “understand” what a man is saying is based on being a man myself.  I do not, however, believe that my gender alone accounts for this understanding.  For example, I certainly can imagine “understanding” woman x much better than man y, given a not too unusual set of circumstances.  In fact, in my professional practice, I treat at least as many women as men.  In general, however, I think that the men I have successfully coached have correctly believed that I have appreciated the emotionally difficult situations they are in, even if I personally may not have experienced similar circumstances in my life.  To a significant degree, its just because we both are men and have lived our lives from a male perspective.

Interestingly, where this male-male empathy really matters is in the four way meeting.  When running smoothly, this meeting is extraordinary in its ability to dynamically shape and reshape the relationship between the divorcing partners.  Having established the bond in the two way meeting with the man, I am free to fully engage with the perspective expressed by the woman.  I can do this without threatening the relationship with the man.  While I am doing this, I am modeling empathy and concern, which ultimately are the cornerstones of all positive emotional changes that occur between the partners.  These changes in perspective can occur for both of the partners because while I was learning about the emotional profile of the man, my counterpart was doing the same with the woman.  When we join together in the four way, the synergy is palpable.  By trusting the female coach, and with her trusting me, we are free to model healthy collaborative behavior.  An example of this might be helpful.  We are in a four way meeting and the conversation surrounding the issue of parenting styles comes up.  I have listened to the woman speak about her anger that her husband has failed to participate in much discipline with their ten year old.  As I begin to respond to her, my coaching partner notices that the man is reacting – he has a certain look on his face that I did not see because I was focused on the woman (modeling, hopefully, a respectful concern for her feelings.)  My coaching partner “interrupts” me to say that she would like to have the man speak about his feelings (that only she has noticed.)  I immediately stop my response out of respect for her intuitive sense that the man needed to have the chance to speak right then and there.  This is collaboration at its best.  This models cooperative behavior designed for a win-win outcome.  It always is done respectfully and it always turns out to be helpful.

A few final points… with two females and two males in the room, a four way meeting feels balanced.  Imagining a four way meeting composed of three females and one male, or three males and one female does not.  In trying to figure out why this is so, I think that nearly every divorce exists, at least partially, as a male/female struggle.  Thinking of it this way, it seems unnecessarily adversarial to add another female for the man to deal with or another man for the woman to deal with.  I say this realizing that the added man or woman is the coach.  I say this realizing that our job is not to be an advocate for our clients, but to help each partner better understand the other’s emotional reality.  I say this because at some point in the long and always emotionally volatile atmosphere in the unbalanced four-way, one of the divorcing partners is sure to turn to their coach and say, “you just don’t understand, you are not a woman/man.”   I believe that empathy, in this unbalanced, pressure-packed situation, eventually loses the battle with biology!

Not understanding because of a failure to comprehend is vastly different from not understanding because of gender difference; the first may be fixable, the second is not.

After spending all this time trying to support the case for gender balancing, it occurs to me that we may not need consensus about this issue in our group.  It may be better to resolve the matter democratically, by acknowledging that each of us has the right to disregard the practice of gender balancing.  Both the attorney and the coach have this right, as certainly does either spouse. We coaches will have to decide whether working with a coach of the same gender is acceptable, or if we believe it creates too large a risk for an unsuccessful outcome.  Unfortunately, we can never formally test the gender-matching hypothesis because we cannot use our clients as subjects for our experimentation.  We must therefore decide beforehand, and participate in the collaborative process following the dictates of our own professional judgement.

Robert Rutman PHD is a Mental Health Professional based in Hermosa Beach CA. as well as a member of A Better Divorce.  His primary goal as a divorce coach is to help his client move smoothly through the divorce process from beginning to end.

XX-YY The Case For Gender-Balanced Coaching

By Robert Rutman

Part one of a two part article

As we strive to improve the success rate of our collaborative interventions, we must carefully evaluate all that we are doing as collaborators in order to determine what works and what doesn’t; or what works better and what doesn’t work as well, or at all!

When we first utilized the team approach to divorce resolution, coaching protocols favored gender matching: male coaches worked with male clients, and female coaches worked with female clients.

At the most recent IACP Conference in San Diego, we were told about the Texas One-Coach and the NorCal Mixed-Gender.  Both of these models underplay the importance of gender matching, and hint that it may be unnecessary.  Unwilling to stray too far from an idea that may not be broken, some might want to reconsider the advantages of our original premises regarding coaching to see if in fact they are in need of fixing.

Suspicion surrounds the devaluation of the balanced coaching model.  If the true reason for its abandonment is a paucity of well-trained male mental health persons, then perhaps we need to address ourselves to correcting this problem, rather than taking the approach of the fox in the sour grapes parable.  It might be better to accept a psychologically sound (but impractical) conclusion: that gender matching is more likely to yield a positive outcome, and attempt to train (and attract) more male mental health professionals in the collaborative method.  And so, I proceed forward with what might be an exercise whose value lies only in eulogizing a concept that seemed quite profound not too long ago.

Our first task may be the most difficult: how to measure success. It may be especially difficult for us to agree upon the definition of a successful intervention from a coaching standpoint.  I am not even sure if there is only one such definition; there probably is a long list of them.

One that might qualify would be the following:

When the couple completed the coaching portion of the collaborative sequence, they were able to move into and complete the legal portion of the sequence with minimal difficulty.

(Realizing that minimal is a subjective measure, we might need to include external corroboration for it to be an acceptable definition.)  Perhaps the attorneys would be the best judges of the effectiveness of the coaching portion since they make the first contact with clients after they have completed it. A contamination problem exists, however, since “successful completion of the legal portion” must, in part, be attributed to the attorney.  But, what part…how much?   We might have to evaluate on a case by case basis.

Honestly, this discussion is clouded if we insist on strict scientific methodology.  Five years ago, we would have had to randomize coaches, had gender-matched and unmatched groups and agreed upon specific criteria for measuring success and done a whole bunch of things that would have taken us way too much time to do.  Since we are not attempting to conduct a rigorous scientific experiment, we should probably ignore these problems and turn our attention to the important task of identifying the specific factors that may have contributed to the successful coaching experience.  In reality, we have a lot of reliable evidence.  It is anecdotal evidence.  It is good evidence; maybe even better than scientific evidence.  It tells us what is really happening while we are coaching couples through their divorce.

Robert Rutman PHD is a Mental Health Professional based in Hermosa Beach CA. as well as a member of A Better Divorce.  His primary goal as a divorce coach is to help his client move smoothly through the divorce process from beginning to end.

Why Collaborative Practice Works

A few weeks ago, I ran across an article by David Hoffman.  He was writing about the usefulness of collaboration in business disputes, but started his paper with several very good, and, I thought, clear descriptions of why collaboration works so well in family law disputes.

I have attempted to summarize his points and to present them in a format that might fit well during an introductory meeting with clients as a way of introducing collaboration.  After you have read this, if you find it useless, you can make a nifty paper airplane and send it out your office window.

1.     Common Interests – The strong emotional support that results from everyone working together toward a common goal reduces the likelihood that negative emotions will interfere with the process.  Children are particularly affected by these emotions.

2.     Conservation of Resources – Collaboration may be less expensive because the costly portions of the process  are eliminated  (court appearances) or reduced greatly (need for discovery).
3.     Predictable Results – In collaboration, you make the decisions regarding the terms of your divorce.  It follows that the outcome will be more predictable and probably more appropriate for you than if a judge does the decision-making.
4.     Attorneys That Know Each Other Well – The attorneys often know each other and
have good working relationships with each other.  More importantly, they have a common commitment to the collaborative process.
5.     Future Relationships of the Parties – A successful collaboration often results in friendlier
post divorce relationships.  This is especially important for children’s mental health.
6.     Wiser Spending of the Emotional Dollar – All the team members work hard to create an
       atmosphere of peaceful discussions rather than destructive arguments.  Because of this,
expensive battles over minor points rarely, if ever, occur.
7.     Loss of Privacy and Other Intangible Costs – In collaboration, all proceedings are private –
both during and after your divorce.  In litigated cases, all records from court proceedings are open for all, including children, to see, now and in the future.
8.     Negotiations Made Possible – Because the atmosphere in collaboration is generally friendly,
there are many opportunities for negotiation on issues of substantive and emotional importance.

Robert Rutman PHD is a Mental Health Professional based in Hermosa Beach CA. as well as a member of A Better Divorce.  His primary goal as a divorce coach is to help his client move smoothly through the divorce process from beginning to end.

Date of Separation – When was it, and why does it matter?

By Deborah Ewing, Wendy Jones, and Elaine Thompson

 

When? 

The date on which one or both parties clearly communicate to the other their intent to end the marriage.

There are many details which may be helpful in determining the date of separation, including:

-       Are the spouses still living together?

-       Are they sharing finances?

-       Are they still “working on the marriage?”

-       Have they told anyone they are separating/divorcing?

-       Are they still acting like a married couple in public?

-       Are they still having sexual relations?

-       Has either spouse changed his/her mailing address?

Spouses may not agree on their date of separation.  They may each perceive the situation differently or have a different recollection of events.  When spouses disagree on what the date of separation is, it becomes a matter to be determined later, either by agreement or by a Judge.

Why?

Sometimes the date of separation doesn’t really matter.  However, the date of separation can be important for a number of reasons:

-       The “length of the marriage” is determined by the date of separation, not the date the divorce becomes final.  The length of the marriage can have an impact on such things as spousal support and social security benefits.

-       After the date of separation,

• Each spouse’s earnings belong to that spouse.
• New debts incurred by a spouse belong to that spouse.
• New deposits into benefit plans may belong to the participant spouse

Before your first appointment with a lawyer, it will be useful to think about your situation and the circumstances which might help determine your date of separation.

It should be noted that people frequently claim that they are “legally separated.” Usually they are mistaken.  The concept of legal separation has nothing to do with the date of separation.  It is a separate and unusual legal concept, and a true “legal separation” requires an order signed by a judge.

 

Deborah Ewing, Wendy Jones, and Elaine Thompson are all experienced family law attorneys in the Los Angeles area, and are members  of A Better Divorce, a Collaborative Family Law Practice Group.

Frequently Asked Questions for Divorce Coaches

Why do I need a Coach?

You are paying your attorney to guide you through the legal process of divorce, but not do deal with the feelings and grief everyone suffers after a divorce.

Remember that your attorney is your legal expert who guides you through the divorce process helping you to get the fairest settlement you can get.

Your coach is your relationship expert, guiding you through this process emotionally, helping you and your spouse maintain civility and if you have children, pave the way for a future relationship as co-parents.

Who are the coaches?

Coaches and child specialists are licensed mental health professionals and have had special training in the collaborative law process.  All are licensed mental health professionals who use their therapeutic skills to help you through the difficult transition of divorce.  Coaching is not therapy.  Even if you have your own therapist, coaching can ease your transition.

How will having a coach help me through my divorce?

If you are going through a divorce, you are grieving a loss.  Even if you wanted this divorce, you are probably still dealing with the loss of the dreams and expectations you had on the day you married, the loss of financial security, possibly your home, time spent with your children and/or friends.

During the divorce process, people feel wounded and relationships, already damaged, are further and often irreparably impaired.  Feelings are hurt and tempers flare up.    If you use a coach, you will be able to:

• Better deal with your angry spouse
• Make settlement meetings more productive
• Develop better parenting plans
• Lower your anxiety about the divorce process
• Reduce conflict.

How would having a coach help my children?

Coaches may also serve as “child specialists.”  If you have children, they are feeling loss — of their family unit, possibly their home, school, friends and how much time and the quality of time they spend with their parents.   They also feel your stress and tension.  Child specialists can help your children deal with their losses while helping you understand your child’s special needs.

Coaches and child specialists are knowledgeable about child development, family dynamics, and the particular stresses of divorce and its effect on a developing child.  They can make recommendations to you and the entire collaborative team and can help you create a parenting plan that addresses the special needs of your family.

I’m already paying an attorney.  I can’t afford to pay for coaching too.

Utilizing coaches as an adjunct to your attorney is a cost effective process that keeps attorney’s costs to a minimum and gives you the best chance of a low conflict, “better” divorce.

By: Paula Van Doren is a collaborative mental health professional, supporting families through the inevitable stress that arises from transitioning from one household to two. She is also an active member of A Better Divorce.

Frank and Jamie McCourt: a cautionary tale of divorce gone wrong

By Jeffery S. Jacobson, Julie A. Milligan and Cozette C. Vergari

 

This article was originally published in the Los Angeles Daily Journal dated Wednesday, November 9, 2011

 

Many Angelenos breathed a sigh of relief with last week’s announcement that Frank McCourt reached a settlement with Major League Baseball and has agreed to sell the Los Angeles Dodgers.  Combined with the prior settlement with his estranged wife Jamie McCourt, it appears that the McCourts’ epic battle in family court, bankruptcy court and the court of public opinion is finally coming to an end.

It has been frequently cited that Frank and Jamie had the most expensive divorce in California history.  They employed some of the best and brightest attorneys, accountants and public relations professionals that money could buy.  According to court filings, during the past two years, they spent in excess of $20 million dollars on attorney fees and costs.

On the fateful October day prior to game one of the 2009 National League Championship series, it was announced that Frank and Jamie would be getting divorced.  Immediately, both of them had public relations experts spinning their positions.  They expressed their interests publicly: Both Frank and Jamie wanted to keep the team in their family and create a legacy for their four sons; Frank wanted to manage the Dodgers entities; Jamie wanted to be the public face of the Dodgers; both wanted to increase the value of the Dodgers and maintain personal wealth; and both wanted to maintain their public images.

However, none of their subsequent decisions or actions reflected these interests   Instead of working together in collaboration to address these interests, they treated the process as if it were a sporting event, each of them intent upon winning.  Beyond winning, it appears the focus was even defeating the other, without any care for the damage that might result to either or both.  The need to win justified the means.

The highest level of collaboration involves an emphasis on one’s interests, while, at the same time acknowledging the interests of the other spouse.  Instead, Frank and Jamie engaged in the positional battle.

As a result, they lost control of the situation, sacrificing their privacy and personal dignity.

At first, the McCourt divorce was about Frank and Jamie and the end of their 30 year marriage.  However, before long, other entities took control of their destiny and obliterated any chances of a satisfactory outcome: the legal system; Bud Selig and MLB; Fox; the Internal Revenue Service; the media; and ultimately, the general public, particularly legions of Dodger fans who voted with their feet by staying away from Dodger Stadium to protest the horrifying tales of what Frank and Jamie allegedly had done to their beloved team.

Every divorce is impacted by the process choices made by the parties.  Frank set the tone with his decision to fire Jamie from her position as CEO of the Dodgers, publicly humiliating her.  Jamie fired back with a massive court filing, detailing heir opulent lifestyle and discussing the inner financial workings of the Dodgers.  Ironically, while hundreds of thousands of dollars were spent by the McCourts to shield themselves from the general public, their private lives became an open book for all to read in the court files.

Within a year, they went to trial on the bifurcated issue of the validity of a postmarital agreement.  After millions of dollars were spent in litigation, the result was based largely upon a clerical mistake, which made it impossible to determine what the McCourts had actually agreed to.  Perhaps the most memorable part of this litigation was Judge Scott Gordon’s comment in his ruling that both Frank and Jamie had credibility issues with regard to the disputed postmarital agreement.

When the smoke clears, both Frank and Jamie will still be wealthy, at least by the standards of ordinary people.  Jamie was awarded homes in Malibu, Holmby Hills and Vail.  Frank was awarded two homes in Boston.  Both stand to receive tens of millions of dollars after the sale of the team.  However, neither Frank nor Jamie satisfied any of their primary interests and are enduing up with far, far less than what they had at the commencement of the divorce process.

While fans can debate the success of the pre-divorce era of the McCourts’ ownership of the Dodgers, during the first six years, the team reached the playoffs four times.  The McCourts purchased the Dodgers in 2004 for $421 million, all of which was financed.  Based on various reports, the value of the Dodgers today is estimated to be between $1 and $1.2 billion.  Unfortunately, the profit of hundreds of millions of dollars will be largely eaten up by loans – both capital gains taxes and potentially unpaid income taxes – and massive attorney fees.

It did not have to be this way.  Frank and Jamie could have found a way of retaining the team, both could have come out with more money, they could have created a wonderful legacy for their sons, and their public images could have remained intact.

There is another approach to divorce that would have protected the McCourts’ privacy and provided an opportunity for a more civilized negotiation with one another.  There is an option far different from the traditional public forum of the courtroom, an option where nothing needs to be public, other than the fact that a case for divorce has been opened and a final judgment entered.

The state of California has recognized, and eventually codified in 2007, the process of collaborative divorce.  The spouses choosing this path each have a trained collaborative family law attorney, engaged to advise and lead them through the divorce process.  One of the very first steps involves the parties and attorneys entering into a stipulation, agreeing to devote all of their efforts toward a negotiated settlement in an efficient, cooperative manner and providing that, while engaged in the collaborative process, no party or attorney signing the stipulation will file any document requesting court intervention.  This process also protects the parties’ privacy.

Additionally, the collaborative process affords parties the opportunity to work with mental health professionals, trained in collaborative divorce, to identify interests and address the emotional challenges each is facing.  Though not always easy, the parties are assisted by their own professional “coach” in working through the struggles of breaking up a marriage and a family.  The coaches work together as a team with the attorneys and financial professionals to assist both parties in easing the emotional burdens of such a break-up and having an interest-based negotiation.

The McCourts are no different from any family getting divorced.  Like any husband and wife, they had to deal (and likely will deal fro years to come) with the emotion of their 30 year marriage ending.  They both likely have feelings of anger, sadness and fear.  Regardless of the size of an estate, effective processes for resolving family law matters take these feelings, combined with the parties’ shared interests, into account.  Scorched earth litigation is not inevitable, and a choice to proceed collaboratively often best furthers the parties’ individual interests as well as their collective interests.

Frank and Jamie’s win-lose paradigm should have been confined to the baseball diamond at Dodger Stadium.

Jeffery S. Jacobson, Julie A. Milligan and Cozette C. Vergari are family law attorneys in Los Angeles.  All three are members of A Better Divorce, an interdisciplinary group of professionals who are committed to the collaborative divorce process- a private, non-adversarial method of resolving family law issues without litigation.