Collaborative Works to Ease Pain of Divorce 10/11/17 10/11/17 10:38:46 AM
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Jodie Haferbier McGill is one of many attorneys who support a better way to ease the pain of divorce. She is the founder and managing partner at McGill, P.C., L.L.O. in Omaha.
Collaborative Works to Ease Pain of Divorce
By Dennis Friend
The Daily Record
“Till death do us part.”
Perhaps there’s no good way to end a marriage, to dissolve a bond between two people that began with that wedding-day vow. But a number of lawyers believe a divorce that does not pit one spouse against another with competing attorneys, one that does not result in accusations and recriminations or involve mounting attorney’s fees and traumatized children might be a better way to sever marital bonds when a marriage becomes unsalvageable.
Jodie Haferbier McGill is one of those attorneys who support a better way. She’s the founder and managing partner at McGill Law in Omaha.
“I’ve been involved in family law since 2005. As a family law attorney, I have too often observed the negative ramifications of the divorce process. I believed that there should be a way to assist people through the divorce process that does not pit the parties against each other and have the parties’ children become the real losers,” she said.
Hightower Reff Associate Attorney Scott Hahn agrees. “As a family law practitioner going on 10 years of practicing in Nebraska, I have witnessed up close and personal the financial and emotional wear and tear that the typical divorce case tends to have on clients. Aside from being a drain on a client’s pocketbook and emotional well-being, in my experience the typical divorce case tends to last at least six months from the date of filing to entry of a decree.
“Unfortunately, if settlement is ultimately unsuccessful and a trial date from the judge is necessary, I have had clients invest up to two years to legally end their marriage, all the while trying to somehow balance and separate – usually unsuccessfully – the need for them to remain cordial enough to effectively co-parent their children once the dust has settled and a decree is signed. … There has to be a better way for clients.”
That’s why McGill, Hahn and attorney Jaimee Johanning are part of Nebraska Collaborative Divorce – the better way they had sought.
McGill walked into a seminar involving collaborative divorce years ago and liked what she heard. The collaborative’s mission statement spells it out: Trained professionals “dedicated to providing a respectful approach to separating and divorcing clients to work toward restructuring their family unit and resolving their legal, financial and emotional issues using the collaborative process; establishing and promoting best practices in Nebraska for collaborative law; providing continuing education, training and support to our group members; and educating others about collaborative law.”
Hahn received his initial training in collaborative divorce in 2015 after he joined Hightower Reff , then received additional mediation training in 2016 “in order to join the Nebraska Collaborative Divorce practice group comprised of attorneys, mental health, child, and financial specialists who all believe wholeheartedly in the same credo: ‘Never cut what can be untied.’”
Johanning went to Law School at UCLA and practiced law in California before she and her husband moved back to Nebraska in 2009, where she began a family-law practice in 2010.
“My undergraduate degree is in social work and I have always had a strong interest in helping families and children. I took mediation training and collaborative divorce training in 2010. I was the co-chair of the Nebraska Collaborative Divorce Group from 2013-2016,” Johanning said.
“Early on in my legal career, I observed that the courtroom was generally not a good place to resolve family law problems. I also observed that a lot of the laws and procedures regarding litigation, discovery, evidence, court hearings really did not help families resolve their family law issues.”
A collaborative divorce normally begins with a referral, if it appears the divorcing couple could benefit and would be receptive, cooperative and reasonable, McGill said. Instead of the traditional adversarial process, the Nebraska Collaborative Divorce team will help spouses resolve issues “in a respectful and dignified manner while protecting their legal and financial interests, and maintaining the well-being of their children and themselves without court intervention.”
Johanning said “there certainly have been occasions where seeking the court’s assistance for a client was necessary and I’ve been able to successfully help my clients in the courtroom. Oftentimes family law issues can be better resolved outside a courtroom. I have observed many clients to be very overwhelmed with the litigation process, discovery, and court hearings. They are already going through a difficult time with divorcing, and the lawyers and legal system just pile on more stress and create more animosity between the parties. I have seen so many cases where both parties end up going back to court again and again and are never really satisfied. Instead of moving forward with their lives, they get stuck in an ongoing battle. There are no winners in these situations. “
According to McGill, the collaborative divorce approach means “we give the power back to the [divorcing] parties,” while additional benefits include reducing conflicts that can arise in such an emotional family event. The collaborative approach includes mental health professionals as coaches. “We use them to guide the parties, enable them to make the best decisions, offer insights, focus on goals and work through any impasses,” McGill said.
Those mental-health professionals include child specialists, and children involved in the divorce may speak with the mental-health professionals. The needs of the children are the focus – “What’s best for the kids?” – as is the welfare of the family throughout the divorce.
The collaborative team includes an independent financial specialist to offer cash flow analysis and advice on tax ramifications, McGill said.
Certain principles are basic to the collaborative process. The divorcing parties and their attorneys sign participation agreements in which they agree to negotiate in good faith, disclose all relevant information and work toward resolving all issues outside of a courtroom.
The costs are variable but may run about one-third less than a standard divorce. However, McGill said not everyone is ready or able to handle the collaborative-divorce approach.
“This doesn’t work for everyone,” she said, citing couples involved in domestic violence, people “unable to be honest or people who can’t get out of their own way. We’re not in the practice of telling people what they want to hear. We tell them what they need to hear and that can be difficult. The parties are asked to set, and focus on, goals for the process and for the end of their divorce. Our professional team work really diligently to reality-test people and ensure that they are making well-educated decisions.”
In collaborative divorces, both spouses must be dedicated to honesty, openness and a willingness to place the welfare of the entire family ahead of everything else, McGill said.
Hahn agreed: “Using this process, clients who have made the difficult decision to get divorced must agree on some basic tenets upfront, including agreeing to collaboratively tackle any issues that may arise without judicial intervention, a full disclosure of their property and child-related issues without going through formal discovery, and maintaining a basic level of decency and respect for one another and opposing counsel throughout their case.”
Communication training is as vital to the process as the legal and financial negotiations. The collaborative attorneys go over the participation agreement thoroughly with the spouses to ensure they understand what is expected.
Both parties will usually have a collaborative divorce coach – licensed mental health professionals, working with the couple to identify and prioritize the concerns of each spouse; to make effective use of conflict resolution and communication skills; to develop effective co-parenting skills; and to help everyone in the process to improve communication, manage the pain and strain of the changing relationship, reduce misunderstandings and solve problems as they come up.
Hahn said the principles used in collaborative divorces “are principles that the typical divorce client does not have to agree to and in more cases than not, it is to (the client’s) detriment.”
If attempts at collaborative divorce collapse, McGill said, the terms of the collaborative agreement spell out what happens next.
“More goes into the process than just agreeing to work together,” she said. The agreement states that if either party seeks court intervention, all the professionals involved in the collaborative process must withdraw from further representing the parties. The spouses must retain new counsel. In addition, all communications generated in the collaborative process will be inadmissible in any future court proceeding without the express written consent of the parties.
Hahn called himself “a proud practitioner” of the collaborative divorce approach. “More and more clients have signed onto tackling their divorce case collaboratively since I joined our practice group … going through divorce collaboratively is so superior when compared to the months-long, sometimes years-long, process of court hearings, discovery requests and legal fees well into the five-figures typical in a traditional divorce case.”
Susan Reff, the firm’s other partner with managing partner Tracy Hightower-Henne and associate Hahn, will soon become a member of the collaborative practice group.
“I just became mediation trained,” Reff said, and “the next step for me is to go through Family Law Mediation Training and then Collaborative Divorce training.” She has watched people go through the divorce process, and “They are upset and stresses … and the courtroom process tends to heighten these feelings. Also, with several hearings before finalizing a divorce, parties tend to get very vindictive in order to ‘win.’ Really, no one is winning in a divorce case. We have made a conscious decision as a law firm to offer Collaborative Divorce to any client whose case would be appropriate and who agrees to it. Not every case is suitable for a collaborative divorce but we believe the practice will only continue to grow as more people learn about it.”
Hahn said he believes “the more clients find out that there is a better way to proceed with their divorce case, the more confident I am that there will be more clients who choose to never cut what can otherwise be untied.”
Johanning echoes the sentiment, stating the collaborative process has an excellent track record.
“At least 90 percent of the cases we get are successfully resolved. These outcomes are so much better for families, especially when children are involved. We do not see parties going back to court multiple times and living in these unending battles. We see them being able to move forward and live their lives in a positive way. Even when parties are no longer married, the reality is that in most cases they are still going to have their lives intertwined in some way.”
Collaborative divorce allows people to “end a marriage and unravel things without permanently severing the relationship,” Johanning added. “It approaches divorce by looking at the family unit and trying to help all of the family members move forward in a positive way even though the spouses will no longer be married.”