Mosten: Is Your Divorce Lawyer Informing You?

If you are considering divorce, you likely think that whether you can have an amicable or collaborative divorce depends wholly on your spouse.  Certainly, the attitude and ability of your spouse to compromise has an effect, but in my experience the attorneys that you and your spouse choose has a much bigger impact.

Beginning A Litigation Divorce

If you and your spouse choose attorneys whose primary orientation is litigation, then there is a good chance that you will face a court battle.  Your litigation attorney will likely draft a petition for dissolution of marriage asking for everything, and then have a process server or sheriff’s officer serve your spouse.  These tactics are all intended to intimidate your spouse and get them to submit.

It should be no surprise that this usually elicits the opposite of the intended response.  Not willing to submit, your spouse hires a “bulldog lawyer,” and the battle is on.  Say goodbye to your children’s college saving.  Know that this money will now be going to your lawyers’ children’s college tuition.

Fortunately, there is a different way.

Beginning An Amicable or Collaborative Divorce

Fortunately, there are attorneys who specialize in peaceful alternatives to litigation, such as collaborative practice, mediation, or unbundled services.

A collaborative attorney will provide you with handouts or articles that explain the collaborative process and other alternatives.  These can be used when bringing up the topic of divorce with your spouse.  You can do this directly or with the help of someone both of you trust.  A friend, family member, therapist, or member of the clergy may be willing to help.

The handouts should include names or a directory of other collaboratively-trained attorneys.  This is so that your spouse can also find someone who is not going to goad you into fighting.

Oftentimes, if your spouse delays, your collaborative attorney will reach out directly to your spouse to get things started.

As you can see, this is a much different approach to beginning a divorce. It is less likely to cause psychological and financial harm to your family.

Mosten on Lawyers and Informed Consent

Mark Baer, a California attorney, found a quote from renowned collaborative attorney/mediator/unbundled lawyer Forrest Mosten and put in a blog post. The quote is from an article titled Unbundled Services to Enhance Peacemaking For Divorcing Families.  Family Court Review published the article in its July 2015 edition.  In it, Mosten said the following:

“Even if a client wants to avoid court (as most do), few clients are informed by their family lawyer that there may be other lawyers in the same community who do not litigate. Further, there is rarely a lawyer-client discussion about the impact on the client of having a lawyer whose income and professional view of client care may be heavily impacted by training, participation, and confidence in the litigation process. It is not unusual for professionals to bias their advice based on the approach and services that they offer… [W]hile they endorse settlement, many litigators readily recommend and utilize the courts as a key tool in their professional approach. Adequate informed consent should require that lawyers who litigate to discuss the possible availability of lawyers who are not also providers of litigation services. Lawyers who litigate should offer a discussion of the benefits and risks of utilizing a lawyer who litigates compared with one who does not.”

Choosing the Right Lawyer

There is a way for you to find out about all of your options. Speak with an attorney that specializes in collaborative divorce and out-of-court dispute resolution.

Adam B. Cordover is a collaborative attorney who trains attorneys, mental health professionals, financial professionals, and mediators on collaborative family law.  Additionally, Adam is co-author with Forrest Mosten of an upcoming American Bar Association book on collaborative practice.