Sometimes Everyone Loses

As a collaborative attorney, I truly believe that the best people to make decisions for a family is that family.  When decisions are left up to a judge, both parties walk away feeling like they’ve lost.  Beyond the parties feeling a sense of loss, the parties’ extended family members; friends; and, most importantly, their children are losers when a couple goes through a trial.

Years ago, I tried a case to a Judge confident that the court would make the right decision for my client and her family.  My client, I’ll call her Alice, had the facts and the law on her side.  She was well-educated, hardworking and a devoted parent.  She also benefited from having good insight and a remarkable ability to articulate her position.  How could Alice not get the relief that she was asking?  

Alice’s story started when she moved from her hometown of Des Moines, Iowa to Omaha, Nebraska to complete her residency training.  Although Omaha was not her first choice of locations for her residency program, she was happy about the prospects that Omaha held for her and her family.  At the time of her move, four years prior to our trial, she had two children under the age of four and one on the way.  Her husband, a computer software engineer, quickly found work in Omaha at a technology company.  The family made an easy, quick transition to life in Omaha.  

Alice intended to participate in a Hematology/Oncology fellowship for three years following the completion of her residency program.  During her final year of residency, Alice started looking more closely at the fellowship programs.  She began interviewing all around the country in hopes of finding a program that would be the perfect fit for her and her young family.  During the months of interviewing for a fellowship position, her husband abruptly filed for divorce.  This came as a complete shock to Alice.  Sure, Alice and her husband had been having problems.  But Alice assumed that their problems were caused by the stress of having three young children and both working demanding jobs.  She didn’t realize that her husband was ready to call it quits and get a divorce.  To make matters worse, Alice was served with the Complaint while at work.

Alice found me shortly after she was served with the Complaint for Dissolution.  When she realized that her husband intended to prevent Alice from moving out of state with their children to complete her fellowship, she stopped applying to fellowship programs.  Alice was crushed that the man that she married; the father to her children would be so cruel and heartless.  Alice had worked her whole life toward her intended career and suddenly to Alice, it felt as though everything was crashing down around her.  Alice couldn’t attempt to match with a fellowship program as there were no guarantees that her choice of location would be where she landed.  There was no way that Alice was willing to live in a different state than her children.  

Alice quickly attempted to get her husband to agree to use collaborative for  their dissolution.  Alice understood that they would maintain power over their case; it would cost them less; and they’d be able to formulate a plan for their family’s future together.  Alice was a self proclaimed planner and the idea of not knowing anything about her future was beyond stressful.  Alice knew that she and her husband were the best people to decide where their children would live; what parenting time each would enjoy; and how their marital estate should be divided.  In addition, Alice was a private person and was less than thrilled about having a public record about her divorce and understood that collaborative offered more discretion than litigation. 

Unfortunately, Alice’s husband refused to even consider the option of collaborative law.  He was certain that litigation was the best way forward.  He had already retained an attorney and that attorney was not trained in the collaborative model.  Because collaborative is voluntary, Alice couldn’t use collaborative for her divorce.  She’d have to go through the litigation route.

Alice’s case lagged on for nearly a year.  During that time, Alice had to build a potential future for herself and her children back in Des Moines and also keep the options in Omaha open in case the court denied her request to return with her children to Des Moines.  She attempted on multiple occasions to offer her husband a settlement that she thought was fair.  At the very least, Alice hoped to keep the dissolution amicable for their children.

Alice’s husband and his attorney had other ideas.  Alice and her husband appeared incapable of agreeing on anything.  The couple had three separate temporary hearings.  They were unable to agree on who should remain in the marital home, whether or not Alice should be able to spend Christmas with the children, and their temporary parenting schedule.  Alice and her husband attempted mediation, as required, and reached a resolution as to custody and parenting time.  However, Alice’s husband’s attorney objected to nearly whole plan.  Certainly, I’m biased as I represented Alice but the whole time, it appeared as though Alice’s husband was incapable of making even the slightest compromise without his attorney’s blessing.  This back and forth resulted in hours of litigation; thousands of dollars in attorney’s fees; and an immeasurable amount of damage to their co-parenting relationship.

Alice’s husband refused to even consider any possibility that would allow his children to return to live in Des Moines.  Alice couldn’t fathom a future in Omaha where she had no family and few remaining friends.  

In the end, trial to a Judge was necessary.  The trial was full of baseless accusations and inflammatory statements aimed at painting a picture to the Judge that Alice had been absent from her children during her time in residency.  Alice’s husband called his extended family members; neighbors; and mutual friends to testify that he was a better father than she was a mother.  During trial, Alice’s husband’s real motive came to light.  Alice’s husband mistakenly believed that Alice had an affair during their marriage.  Alice was fuming.  Not only was this belief false, her husband’s misconception had led to Alice’s emotional torture.  

In collaborative, such accusations would likely have been vented and dealt with during the process.  Regardless of whether Alice had an affair, the collaborative team would have worked with the couple to assist them in communicating with each other about their feelings and thoughts about this perceived act of mistrust.    

At the conclusion of the trial, Alice and I felt good about her prospects.  She had a great job opportunity, house and her extended family waiting for her in Des Moines.  We both felt confident that the Judge would agree that Alice and her children should be allowed to relocate to Des Moines.
I knew the ramifications for Alice and her family was going to be life long. I was shocked when I got the court’s ruling months later.  To my disbelief, the court ruled against Alice and granted the relief that her former husband had requested.  Not only did the court’s ruling determined Alice’s parenting time with her three children; it also dictated in what city she would raise her children and what job she would take.  The amount of impact that this Judge was afforded to make for Alice’s future is remarkable.  

Although Alice felt like she had lost, so did her former husband and most importantly, her children.  Alice and her former husband started the divorce process still speaking to each other and on relatively good terms.  Remember, Alice didn’t even know that her husband wanted a divorce.  After thousands of dollars; months of emotional turmoil; and the involvement of family members, neighbors and colleagues; Alice and her former husband were no longer able to have a meaningful conversation about anything.  They both felt like they’d been wronged by the other. Their neighbors, friends and extended family members were also brought into the divorce.  They took sides and interjected their opinions to the parties throughout.  The biggest losers to this trial were Alice’s three young children.  The effects of this protracted litigation on this couple’s children are mostly unknown.  However, it is safe to say that the animosity that their parents feel toward one another will have ramifications for the rest of these kids’ lives.  

Hopefully, in time Alice and her former spouse will learn to work together to co-parent their children.  Had Alice and her former spouse been able to go through the collaborative process, the work toward co-parenting would have started from the beginning.  The collaborative process would have also affording Alice and her former husband the opportunity to gain valuable insight about their relationship, their children and their future. The collaborative process is all about providing divorcing or separating couples with the tools necessary to co-parent.  

If you know someone contemplating divorce, tell them about collaborative.  You never know the impact it could have on someone’s life.

By Jodie Haferbier McGill  Contact Jodie: