Divorce Without Disaster - Use of Expert Testimony

This is the 11th of a serialization of Janet P. Brumley's book, Divorce Without Disaster. This post is Chapter 2, part 3 of the book. 

Frequently in divorce, the parties need help from outside experts. The parties may disagree over the fair market value of their residence and need an appraiser to determine that value. Or they may disagree on a child's medication and need the advice of a pediatrician. In more complicated divorces, there may be questions of tracing separate property, valuing the couple's interest in a trust or determining the value of a business. In each instance, the attorney for each party in a litigation divorce hires an expert to give his or her opinion to the court in the final trial. These experts realize they have been hired by one interested party and, therefore, may give an opinion that benefits that party.

This nefarious lack of integrity is not universal, but it does occur. Most lawyers who practice family law know the local experts who cannot be bought and will give their honest, professional opinion without bias. These are the experts hired in collaborative law cases. Unlike the two-expert duel in litigation, in collaborative law the parties and attorneys agree on one expert and pay the expert from the community estate.

"It's a lot easier to appraise a property, and get all the important variables that are involved, when both sides are in agreement with you being there," says real estate appraiser D.W. Skelton.

"When you're hired by only one side, the other side sometimes thinks you're going to give a higher or lower valuation based on what your side wants. They're constantly worried about that, and they may make it difficult for the appraiser to get into the home to do what he needs to do, such as take photographs or make notes. If the parties are civil to each other, no matter what type of divorce it is, you don't run into any of that."

This also applies to the mental-health experts often called on during a divorce process.

"With collaborative law, I'm hired by both attorneys, so it's clear that I have the best interest of the relationship and the family in mind," says therapist Patrick Savage.

"Since there's no other therapist involved, I'm able to render an opinion that both attorneys will honor, since it's not about winning or losing; it's about what's in their clients' best interest."

Janet P. Brumley

Prior posts:

Divorce Without Disaster - Collaborative Law - About the Author
Divorce Without Disaster - Collaborative Law - Introduction
Divorce Without Disaster - What Is Collaborative Law and Why Use It?
Divorce Without Disaster - Choices of How to End the Marriage
Divorce Without Disaster - A Closer Look at Collaborative Law
Divorce Without Disaster - Collaborative Law Can Save Everything
Divorce Without Disaster - Human Behavior Key to Collaborative Law
Divorce Without Disaster - What Makes Collaborative Law Different from Litigation?
Divorce Without Disaster - More on Communication

Divorce Without Disaster - More on Communication

This is the 10th of a serialization of Janet P. Brumley's book, Divorce Without Disaster. This post is Chapter 2, part 2 of the book. 

In a standard litigation divorce, the parties are instructed not to speak to each other directly about the case, but to talk only through attorneys. There is a good reason for this admonition. Usually tempers are short and parties are not operating at their highest level. This results in lower functioning than at most other times in their lives.

A person going through a divorce is stressed and hurt, and may not hear well or communicate effectively. It is a recipe for disaster for two angry and hurt people to try to talk substantively with no assistance. What generally happens is that the two people sit down to civilly discuss their problems and possible solutions. At first, they do well and make some progress. Sooner or later, though, one of them takes a potshot at the other (or at least that's how it is perceived) and the fight is on. When they finish, they've not only lost all the progress they made, but they've actually dug themselves into a more negative position than where they started.

Collaborative attorneys are trained to actively listen. When either attorney hears a distracting comment by the parties, he or she will use a method designed to get the conversation back on track. Collaborative attorneys prefer to do a collaborative case with another collaboratively trained attorney, rather than with an attorney who is not trained in the model.

It has been my experience that if the other attorney is untrained, but is a cooperative person with whom I have handled prior cases and built up a mutual trust, the collaborative divorce can proceed smoothly. In this situation, I will have to do most of the work–not because the other lawyer isn't willing, but because he or she doesn't know what needs to be done. If the other attorney is not particularly cooperative and is untrained in collaborative law, using the collaborative process can be difficult because so much time is spent overcoming the other attorney's aggressive attitude.

Referring back to my analogy of the hand-tailored versus off-the-rack suit, the untrained lawyer keeps trying to convince everyone it's fine that the suit is too tight and the pockets stick out. That lawyer doesn't understand why everyone won't just shut up and take the suit!

Further, in a standard litigation divorce, attorneys are prohibited from speaking directly to the client on the other side. A paradigm in which discourse is limited is not as effective as one in which everyone talks to everyone else.

"One of the very frustrating things that frequently happens in litigation is that no one is talking to each other. The clients aren't talking directly to each other, and sometimes the lawyers aren't even talking to one another," explains one collaborative lawyer.

"Your client calls and tells you something, then you call the other lawyer. If you're lucky, you can get him or her, or maybe you have to talk to the legal assistant. It's like the telephone game, and by the time you get to the end of the line, who knows what's been translated to the client? There are so many opportunities for confusion."

"But in a collaborative context,because everyone is there together, there just is not nearly the opportunity for the kind of confusion or poor communication that's built into the litigation model. In 23 years as an attorney, I have never seen litigation improve parties' communication."

Some clients report that their strained communication was strengthened and improved as a result of the collaborative process. "It wasn't an easy thing, because there are a lot of raw feelings involved, but I think that having the four parties–the two of us and our lawyers–sitting down together in a process that fosters communication, was very helpful," says a Dallas CPA who was divorced in 2000.

"We have two children in college now, so we're still dealing with those kinds of parenting issues and I think our communication has actually gotten better. Using the collaborative process as opposed to something perhaps more damaging emotionally allowed us to have better com-munication going forward. If you're going to have any kind of relationship down the road with the person you're divorcing, this process can assist in building communication skills that you can use later."

Janet P. Brumley

Prior posts:

Divorce Without Disaster - Collaborative Law - About the Author
Divorce Without Disaster - Collaborative Law - Introduction
Divorce Without Disaster - What Is Collaborative Law and Why Use It?
Divorce Without Disaster - Choices of How to End the Marriage
Divorce Without Disaster - A Closer Look at Collaborative Law
Divorce Without Disaster - Collaborative Law Can Save Everything
Divorce Without Disaster - Human Behavior Key to Collaborative Law
Divorce Without Disaster - What Makes Collaborative Law Different from Litigation?
Divorce Without Disaster - What Makes Collaborative Law Different from Litigation?