VOL. 126 | NO. 205 | Thursday, October 20, 2011
Memphis Law Talk
Shea Touts Law Alternative To Litigated Divorce
By JOHN LINTNER
The collaborative law movement has reached Memphis, and Wanda B. Shea, founding member of Shea Moskovitz & McGhee PLC, has helped an array of people using this relatively new brand of “no court” divorce.
(Photo: Lance Murphey)
Litigation – the usual way divorces are settled – traditionally has put both parties in an adversarial relationship, with attorneys arguing to get the most for their respective clients.
In the last few years, though, there has been a trend of state law requiring married couples who have children to go through court-ordered mediation before going to trial. This alternative dispute resolution (ADR) process requires that the parties try to iron out their differences and reach an agreement through a neutral mediator before going to trial. However, it has been a daunting task – considering the antagonistic relationship has still existed and the lawyers haven’t collaborated to reach a settlement.
Collaborative law, like mediation, fits under the ADR heading, but the similarities stop there. In this type of divorce, each party hires his or her own attorney trained in collaborative law, and enters into a written agreement – including both attorneys and both parties – agreeing that they’re going to work toward a settlement with full transparency on all issues without the need for taking depositions, filing complaints or issuing subpoenas.
“In the event the parties do not settle, all the information obtained is privileged inside the collaborative process so that it can’t be used against them outside the collaborative process,” Shea said. “In the event the parties don’t reach an agreement, then they have to fire their attorney and start over from scratch.”
This new way of navigating the choppy waters of a divorce effectively motivates all parties involved to compromise. As part of the written agreement, the attorneys cannot represent either party in a court of law should communication break down.
Collaborative law allows the parties to manage their own divorce, to a certain extent. The critical point of this type of divorce is that the attorneys from both sides are working together to reach the best deal for all parties involved.
It’s the next step beyond mediation toward a peaceful settlement.
The contract also contains rules that prohibit violent outbursts of any type and demand the meetings be carried out in a respectful manner. The attorneys in a collaborative divorce help maintain the decorum of the meetings.
“The attorneys take off the hat of being adversaries, which is the reason we suggest that the attorneys be trained in collaborative law,” Shea said. “Generally speaking, attorneys, throughout their entire careers, have been adversaries and have been trained in the adversarial process.
“The idea behind collaborative divorce law is that you try to make it a win-win situation, because too frequently divorces are lose-lose situations. Everybody is losing something.”
As a product of the trend toward settling litigation, which spares both parties from a contemptuous court proceeding, collaborative divorces have another unique characteristic, one that can afford both sides some wiggle room financially.
“Generally speaking, these are much less expensive divorces than your standard litigated divorce,” Shea said. “Economically, it’s by far the wisest way to go.”
Considering the sluggish job market and decreased spending brought on by the recession, it comes as no surprise this type of divorce is gaining momentum nationwide.
Typically judges have cases backed up on their dockets, many of which are divorces, and they generally prefer a collaborative settlement, Shea said.
A seasoned family law attorney, Shea received her collaborative law training at Vanderbilt University in 2010 after seeing many cases that left families scarred in the aftermath of a divorce.
“I’ve been doing divorce law for 28 years now, and I just think there has to be a better way,” Shea said. “I’ve seen the damage and cost in finances. It’s just so expensive and inefficient to take a divorce to trial. Basically, it’s destructive to families.”