For any attorney handling Collaborative Divorce cases, this is one of the most common complaints: “my client wants to do the divorce Collaboratively, but the spouse doesn’t want to.” Here are a few tips to help you lead your client’s spouse to the Collaborative process:
- Decide whether you really want to handle Collaborative cases and make that clear on your website.
It starts with your own clients. If you write on your website about your courtroom prowess and how you’re there to help your clients win at all costs, then you’re not going to attract clients who are inclined towards Collaborative. Even if you manage to explain the Collaborative process to a potential new client to the point of them choosing it, imagine what the spouse will think when they get a letter from you and go to read about you on your website. If it’s all about courtroom battles and winning, their first thought will be to run to a heavy-swinging litigator. Use your website to educate not only potential clients but also their spouses about how the Collaborative process can help to restructure their family in a confidential, private conference room without the expense of trial preparations and a stranger in a black robe making decisions for them.
- Don’t use a process server or constable to serve process.
It’s inevitable that some family law cases require service of process. Some cases have TROs. In others, there may be intimidation that doesn’t rise to the level of a TRO but needs urgent attention and a judge to oversee it. But I can make a good argument that many if not most family law cases don’t require service of process. Many couples just need a “safe space” to become informed and discuss how they are going to share time with their children and divide their financial estate. Those clients would be happy to avoid the cost of a process server or the feeling of opening the door in front of their children or at the office to have someone say “you’ve been served.” As lawyers, we know that service of process is really just to get the legal ball rolling, but to clients who aren’t regularly involved with the legal system, it feels awful when that happens. And these moments of service can unnecessarily drive the spouse straight into the arms of the litigation system you were hoping to avoid. If a letter doesn’t work to get them to an attorney, you always have the option to serve them later.
- Send the spouse a letter.
Unless your client’s spouse already has an attorney, there is no reason you can’t send the spouse a letter. You’re not giving them legal advice. Simply take the opportunity to let them know you’ve been retained; that you’re not planning to send a process server; that your client would really like to resolve the divorce using the Collaborative process. And most importantly, take the opportunity to educate the spouse. Send resources – the Collaborative Divorce Texas website, your practice group’s website, IACP’s website. It lets the spouse know that you’re not trying to start a litigation war.
- Prepare your client to talk to his or her spouse.
Sometimes the best way to deescalate tension is to have your client talk directly with his or her spouse. Your client can be the one to deliver the letter you wrote and the news that they are wanting a divorce, but that they want to do it in a kind and caring way. It can be disarming to have your client share their intention rather than the spouse hear it from a lawyer. Have your client explain to their spouse the benefits of Collaborative and the intention to avoid costly litigation. And make sure your client has the resources to be able to pass them along.
Obviously, these tips are not going to work in all cases. Sometimes situations are simply too high-conflict, or maybe have untreated mental health or addiction issues. Those types of cases need the hand of a judge to resolve. But if we steer clients in the direction of Collaborative armed with information and resources, they will choose the process we know from experience to be best for most families. Wouldn’t you?