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.
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.
Part 1: Beware! The Reality of Collaborative Divorce Attorney Cliques
Part 2: Lack of Formal Discovery Process Raises Concern in Collaborative Divorce
Part 3: Choosing Collaborative Divorce Complicates Addressing Future Post-Decree Issues
Part 4: Collaborative Divorce Practice May Attract Inexperienced Attorneys
Part 5: When Collaborative Divorce Fails: The Cost of Starting Over and Prolonging the Divorce.