Divorce Options and Alternatives
Many of you are familiar with the several divorce options for resolution, including “kitchen Table” negotiations, conference mediation, collaborative law, “peaceful divorce™”, and litigation. I have even discussed how a family lawyer can come to a therapist's or wealth advisor's office and help mediate or bring lawyering skills to resolve disputes. All these methods are referred to as “Divorce Options”.
For years many family lawyers have encouraged reconciliation. But how many of you are familiar with “Divorce Alternatives"? Two years ago, I introduced “Reconciliation Law”, a formal way for lawyers to be involved in the reconciliation process: a couple decides to create a contract or Court Order to work on the marriage. With the help of their lawyers, the couple sets out how long they are going to try to make the marriage work, with which couples and child therapist, and what issues they will each work on (a marriage treatment plan - but don't worry, you can still get divorced if your plan doesn't work out). I envisioned the courts getting involved, but the economy and other factors have kept the Texas legislature from reforming divorce laws.
During these two years, I have discovered a few colleagues who are working on similar projects. A group of lawyers from Minnesota, led by “Marriage Friendly Therapist” founder Bill Doherty, is working on reconciliation through collaborative law. They are experimenting with three kinds of coaches: “Discernment” Coaches, “Hopeful” Coaches, and “Reconciliation” Coaches. In another issue, I hope to give you more information and updates on that project’s development. Although I am a big Collaborative Law fan, most lawyers think that only a small portion of family law cases will become collaborative law cases, for a variety of reasons. It is thought that most cases will be filed and handled in a traditional manner for the foreseeable future – that is, they will face the possibility of trial, unlike collaborative law.
In this courtroom context, an Austin lawyer colleague began using “Pre-Divorce” and “Anti-Divorce” petitions a few years ago. I filed my first one a few days ago. Here’s how it works: The lawyer draws up the divorce petition just like they would any other, with one exception. The family lawyer states something like the following: “Marianne B. Happy files this petition not because she wants a divorce, but because she doesn’t. She believes in the importance of a good relationship between husband and wife, both for the sake of their children and for themselves. At this time the marriage relationship is in such bad shape that it requires serious work to restore the love, balance, success and fun that the couple once had. Marianne B. Happy is so Unhappy that the only way to get her husband’s attention is to file this petition. She asks Mr. I AM Happy to attend counseling and obtain relationship skills and work on various issues in the marriage. In the event that Mr. Happy refuses to work on the marriage, Marianne B. happy requests the court to order the parties to an HAMFT counselor to determine whether they have a reasonable chance of reconciliation. Ms. Happy further asks the court to set the time period from three to six months for the couple to work on the marriage.”
The petition continues to say that if the reconciliation effort is unsuccessful for whatever reason, that Ms. Marianne B. Happy requests the court to grant the divorce because the marriage DOESN’T have a reasonable chance of reconciliation. In law, coincidentally, this way of pleading, “ if we can’t get x, we’ll settle for y”, is called “pleading in the alternative”; hence the name “divorce alternatives” is perfect.
So what is “divorce alternatives” all about? From my perspective, it is combining the family relationship movement (see “Smart Marriages” website ), reconciliation law, Texas Family Code 6.505 (our marriage counseling statute), marriage and family therapy, and if necessary, divorce. The key is that one spouse is saying “I’ve had enough, if you don’t come to the table and work with me, this marriage is over.” Of course, therapists will applaud this development as a loving and reasonable approach to family and marriage issues. It not only gives the marriage a chance to get therapy, but also gives hope to children everywhere. Very few people anywhere would disagree that it is better for families to not have a divorce if there can be a modicum of happiness and workability. One additional benefit will be increased work for HAMFT Therapists.
One of my stated missions is for therapists and family lawyers to work more closely together. We all know that there has been a need for us to work more in harmony in divorce and other family cases for a long time now. And I think we will continue to do so as the “divorce options” movement grows. But I truly that the future is even brighter if we expand the lawyer’s role to include reconciliation efforts and “divorce alternatives”. That way a family lawyer can truly be a family lawyer, not just a divorce lawyer.
On a final note, there continues to be a need for divorce reform. The family code counseling statute is rarely used, and it is really a “discernment” statute. The statute actually says that the counselor is supposed to tell the court whether there is a reasonable chance of reconciliation. Only then is true counseling to begin. Regardless, I think that most divorce cases should have a counseling requirement. That is not the case now. Cynics among us lawyers believe that that this would be a “therapist lifetime employment” statute, but of course it is what many families need. The fact that it would provide more work for therapists is a good thing. And family lawyers feared their workload would diminish when mediation arrived, but their workload actually increased. If family lawyers get involved with these “Divorce Alternatives”, then the same will be true here. Then family lawyers would truly become FAMILY lawyers. Even if the divorce happens, there is a better chance of improved co-parenting because the parents tried to save the marriage, and the treatment plan will have helped them to work together for the kids sake. See other parts of this site for more information on litigation, collaborative law, and other divorce options and alternatives.
Michael Hiller, Hiller & Assoc., PC
713-784-9500; c-832-723-6600
mhiller@hillerlaw.com
www.hillerlaw.com