Introducing a new five-part
series of revealing articles focusing on the collaborative approach to divorce.
At the Law Office of Ronald L. Hendrix,
we seek to educate and inform individuals who browse the internet in
search of accurate information about the available divorce
options. Our series on collaborative
divorce is a must-read for anyone considering divorce. For more information
visit our website.
When deciding to proceed with a divorce using
one of the available approaches, the first step is to choose and retain an attorney. It sounds simple on the surface, but this
first step may be the most important decision you will make, and your choice
will certainly affect the process as well as the outcome. Prior to hiring an attorney,
you may conduct research on the internet, read Google or other online reviews,
or receive a recommendation from a friend, co-worker or relative. These are all
excellent ways to assist you in finding a reputable attorney, and after meeting
and finding an attorney you feel comfortable with, you normally retain that
attorney. As you would expect, this decision
is solely your own to make and should be without undue outside influence. Like you, your spouse also has the right to independently
explore options and secure his or her own attorney.
Any
attempt to influence your choice of an attorney is inappropriate and should be
interpreted as a “red flag”. This is
especially true, and an unfortunate reality, when entering into a collaborative
divorce when only a handful of collaborative attorneys may be present in any
geographic area. Should your spouse hire a collaborative
attorney, do not be led to believe that your choices of attorneys to represent
you are then limited to a select few. This
is absolutely false. Beware if your
spouse’s attorney claims not to do cases with a particular attorney or refuses
to work with an attorney who you have already interviewed and hired, or worse
yet, provides you with a list of “preferred” or “recommended” collaborative
attorneys. Your spouse’s attorney only
has your spouse’s best interest in mind, and is attempting to control the case,
and more importantly, the outcome. There are numerous collaborative attorneys,
and a list of three or four which may be provided to you is simply a “safe
list” for your spouse and your spouse’s attorney. If you find yourself in this
situation, you should immediately commit to choosing an experienced attorney
with both knowledge of the collaborative process and extensive courtroom
experience. Remember that the choice of
who represents you is yours, and yours alone.
Throughout
my career dealing in traditional and collaborative divorce, I have been
involved in hundreds upon hundreds of cases involving dozens of attorneys from
DuPage, Will, Cook, Kendall, and Kane counties in Illinois. I have never
declined to take a case due to the opposing attorney, nor am I aware of any
attorney refusing to be matched against myself.
However, in recent years, collaborative cliques of attorneys have formed
wherein four or five attorneys very deliberatively and consistently steer cases
and referrals within their clique, a clear “if you refer to me, I will refer to
you” practice. Since these attorneys
work together often and depend on each other for referrals, there is certainly
a goal to not “ruffle any feathers” with the opposing counsel, which can result
in unknown compromise on your part.
These established collaborative cliques
form in a few different ways. They may consist of young, inexperienced
attorneys who lean on each other for knowledge and referrals, but who are ineffective
in negotiations and settlements due to simple lack of experience. Alternately, one or two seasoned attorneys may
work with these less experienced collaborative attorneys who do not present a
challenge during negotiations, thus swaying the ultimate outcome in their own
favor. More rarely, three or four
experienced collaborative attorneys will band together, using their selective
referral techniques to essentially hand-pick opposing counsel on a case, and
thus eliminating the challenge that dealing with an outside attorney may present.
In
all cases, these cliques of collaborative attorneys repeatedly refer only within
their group, and as they work together time and time again, the result is a
history of cases lacking the depth, detail and uniqueness each case deserves. These partnerships may produce molded
settlements that mirror each other and require little time or attention to the
particular circumstances and nuances of a case, and the simplicity of which is
telltale of the collaborative attorney’s lack of courtroom experience.
The
collaborative approach is specifically designed to keep parties out of court
and removed from the well-established legal practices of the courtroom. You
should be aware that in a collaborative divorce, you proceed without the
ability to rely on the guidance of a judge.
You are at the mercy of your attorney and your spouse’s attorney,
allowing them to fashion a settlement, either favorable to you or not, that may
not reflect the fair and equitable approach that a judge is required to
administer. For this reason, when choosing a collaboratively trained attorney
you should expect that they have also been involved in trials and hearings
during their career. They should be
familiar with the judges in the county where your case will be filed and
entered. This experience, knowledge, and
possession of seasoned legal skills will have a direct and significant impact
on an attorney’s collaborative approach to a divorce. An attorney who has no traditional experience
or claims to deal only in collaborative divorce will be unable to compete when matched
against an attorney who is in the courtroom day-to-day, and knows the judges
and how they tend to rule on specific areas in a case. So, it is not surprising that these
collaborative cliques have formed providing a “safe haven” for attorneys who
subscribe to them.
As
a collaboratively trained attorney myself, as well as having extensive
experience in traditional divorce, I simply cannot support this current trend.
The reality is that cliques such as these, which manipulate an individual’s
choice of attorney for a collaborative case, may have the effect of squeezing
quality attorneys out of the market in their geographic area. When seeking representation in a
collaborative divorce, neither you nor your spouse should accept a situation
where your efforts to make an educated and proper decision for yourselves is
influenced by the opposing attorney involved in the case.