I do something that no other collaborative divorce lawyer I know does (yet). After a client who wants to proceed collaboratively retains me, I send a lengthy letter of invitation to the spouse.
No; that’s not what’s different. This is similar to the letter that many of us send the “opposing party.” In the letter, I explain the collaborative process at length and I suggest how my client’s spouse can research collaborative lawyers that he or she might be interested in interviewing. I provide contact information for several collaborative attorneys with whom I have worked in the past. I ask him or her to contact me within a certain period of time to discuss the matter further.
And then I leap off the edge of what’s normal and expected….
I offer to meet with the client’s spouse in person to discuss the possibility that collaborative divorce may be the option that he or she also feels would best suit their family. I copy the client with this letter.
Meanwhile, like my collaborative peers, I have also equipped my client with this information, as well as with two copies of my book, War or Peace, one for him and one for her, that explains the collaborative process in detail, in both commentary and story.
If my client’s spouse does not contact me within two weeks, I reach out again. I may try a different form of communication, depending on what my client tells me, like phone or e-mail. I will leave messages, if necessary, requesting a response.
It surprises many of my lawyer friends that I receive positive responses to this type of approach. In fact, I’ve never heard a negative response, although I have, regretfully, been ignored.
When the response is positive, I may well meet with my client’s spouse.
It still surprises me, a timeworn trial lawyer, how often the spouse is open to this possibility.
But recall, this is a spouse who has not yet been handed a petition for dissolution of marriage, one of those insulting and terrifying documents that a stranger delivered at a peculiar hour with the intimidating exhortation, “you have 20 days to answer this.”
At my meeting, which may take place with both spouses at the same time, or not, I discuss what the collaborative process looks like, the mechanics, the various types of professionals involved, their diverse functions, and, generally speaking, how collaborative divorce functions. I talk about my collaborative experiences with other clients. I tell the stories of our successes. I talk about my one failure.
I also tell the stories of my courtroom experiences. I talk about winning and losing, and what those cases looked like, from my perspective.
I talk about the costs, the actual monetary costs of cases that I have handled, both courtroom and collaborative. And the time involved. How much more time and money is consumed in courtroom cases, and how difficult it is to control the time and costs involved.
I encourage the spouse to talk to other collaborative lawyers.
So what are the specific results of this unusual practice I have instituted in my office? I had one significant other (this was a paternity case) call to ask me how to navigate my practice group’s website and whether it was okay to interview anyone she found listed there. (She ultimately interviewed seven lawyers before she chose one!) And then we embarked on the collaborative process.
Another spouse made an appointment to see me; we sat together in my conference room, and we talked about how the process works, the roles of the usual professionals in my community, as well as other possible professionals that might participate in his particular divorce process, depending on his family’s needs. Ultimately, he, too, retained a collaborative lawyer and we worked through their divorce collaboratively.
In a third matter, the wife brought her husband in to discuss the process. We all sat together in the conference room so that I could explain the process to both of them. This couple was older and both had been divorced before. They had seven children between them, although none of their own union, and they were particularly concerned about the repercussions on all of their kids, despite that their children were all grown with families of their own. This, couple, too, resolved their divorce collaboratively.
If I don’t receive a response to my letter, I then call the spouse, unless, of course, I discover that he is represented, in which case I call his lawyer instead, and suggest that we proceed collaboratively.
Once I have reached out to my client’s spouse and followed up, if she still doesn’t respond, I do file a divorce petition. I file it, but I do not serve it. At this point, I send another letter to her with a copy of the petition I have filed, explaining that, although I have filed the petition because she has not responded, my client is still open to proceeding collaboratively. This is to convince her that she cannot continue to hide her head in the sand.
For a spouse who continues to ignore you, you may need to have her served with the petition. But, in our jurisdiction, we can always abate the proceedings when the parties decide to proceed collaboratively by filing the participation agreement and notifying the clerk that the case is now on the collaborative track. At that point, all hearings and case management conferences should be cancelled.
I had one spouse who refused to face the fact that her husband was going to divorce her. Yet when we reached this point, serving her with the petition, she finally sought counsel with one of the lawyers I had recommended to her. And she and her husband ultimately settled their case collaboratively.
Explaining the collaborative process option is not the practice of law.
Need advice now? Contact Joryn!
About this week’s author: Joryn Jenkins.
Joryn, attorney and Open Palm Founder, began her own firm here in Tampa after a 14-year career in law while also serving as a full-time professor in law at Stetson University. She is a recipient of the prestigious A. Sherman Christensen award, an honor bestowed upon those who have provided exceptional leadership to The American Inns of Court Movement. For more information on Joryn’s professional experience, take a look at her resume.
