A lot is available to read about the theoretical practice of collaborative law: the concept behind it, how it is supposed to work, and how you ought to approach representing your clients in a collaborative case. But there’s little discussion about what that looks like in practice. We wrote this article in the hopes of providing you a front-row seat to the experience of working collaboratively with counsel and with your clients on a collaborative family law case.
Asa: The client was a very wealthy business owner, and the couple had been married about ten years. Both being older individuals, they had no minor children. Husband came into the marriage with substantial wealth, and Wife came into the marriage making a modest income from a job that she then quit at Husband’s behest. While Wife was an owner a home, the couple moved in together and built a home together. Husband sought to secure his separate property wealth prior to the marriage with a prenuptial-like agreement.
In first meeting my client, he indicated that while his wealth was secured with a prenuptial agreement prepared by another attorney, he would be leaving his wife 10 years older than she had been and ten years away from career opportunities for promotions, pay raises, and the opportunity to build wealth on her own. He did not want to abide by the terms of the agreement, as he felt at this stage it would be unfair to her. While the marriage was certainly over, he was concerned about her wellbeing later in retirement if she received only what was entitled to her pursuant to the agreement the parties made before marriage.
My client’s desire to provide his soon to be ex-spouse with more money than they had agreed to was fortuitous – when I reviewed the agreement, prepared many years prior by a different attorney, I became concerned that the agreement would not be enforceable if we sought to enforce it in court due to some of the oddities in how it was drafted and executed. While the discussions between the parties were amicable, Wife quickly obtained counsel after informing Husband she did not think their prior agreement was fair anymore.
Matt: My client approached me to consult after discussing potential attorneys she should hire with her husband – her husband had actually recommended that she speak with me. While it was clear that the marriage was over there were still some emotionally difficult feelings between Husband and Wife. Her primary concern was economic stability after forgoing a career for several years at the direction of her husband and now facing retirement age with limited ability to go back or recover. She was concerned that the agreement the parties signed before marriage may have foreclosed her ability to ask for something different or in addition to what was potentially agreed upon previously. However, after I reviewed the agreement, it became arguable that it may very well not be enforceable in court – an opportunity my client could potentially leverage to litigate her case in lieu of seeking settlement and/or the property awarded in the agreement.
Although it appeared that each party wanted to keep things amicable and respectful, my client’s primary concern was the ability toto walk away and financially support herself while not being depending on her husband.
We understood that, if litigated, Husband may very well be able to enforce the parties’ prior agreement and walk away with all his substantial wealth. We also understood that he may very well fail, and that Wife may be entitled to a substantial economic award in the dissolution putting a business and its assets at great risk. We knew that both of our clients were concerned about Wife’s ability to support herself moving forward and that, while they were getting divorced, they still cared about and respected each other. With the right counsel involved, we knew there was an opportunity to get creative, to problem solve, and to meet both clients’ needs without litigating. That paradigm shift was important because after the initial “what could or would a court do?” we put on our collaborative hats and asked, “what are the goals here for each side and can we achieve them through creative solutions?”
We first worked to identify what the Court may designate as the parties’ separate and community assets, and what assets may need to be on “one side” or the other due the intimate nature of the assets. Then, Husband and Wife worked with a financial neutral to understand what Wife would need to survive while comfortably moving into retirement and what financial resources could be leveraged to provide that lifestyle to Wife while leaving Husband in an excellent financial position himself moving forward.
After identifying the assets that could be leveraged and made to work for both Husband and Wife, counsel discussed potential solutions with each other, and we determined a few potential paths forward for the clients to consider; instead of us working against each other, we took the goals that were important to each party and attempted to create options for the clients that focused on the resolution instead of “what the court would do”. Bringing our clients in to the discussion was a little challenging, as they were cautiously optimistic that neither wanted to leverage their position for a better outcome – but also uncertain if they could be frank and totally open with each other and their short term/long term goals post-marriage.
Ultimately, the parties and counsel walked through potential options that involved Husband paying wife more than she would have been entitled to under the previous agreement in scenarios that were designed to maintain as much of Husband’s portfolio as possible while providing Wife with a substantial nest egg.
The result was Wife being awarded a property to reside in, and a substantial sum of money that would allow her to retire and meet her financial needs moving forward. Husband was happy because he ensured that someone, he cared about post- separation had what they needed and didn’t have to struggle after they lived separate lives. Wife was happy because she did not have to move into older age without economic security and did not have to fear her financial future.
Like in most cases, the collaborative process works most effectively when you have individual clients who maintain deep and sincere respect for each other and are committed to a conflict resolution process that leverages their commitment to respect each other and fairness in the process itself. It is not going to be for every client, and it is not going to be for every attorney. For the cases in which individuals want to resolve their disputes constructively and creatively while focusing on goal oriented solutions, in as much as working together to create a new normal for themselves and for their families, the collaborative process can be exceptionally effective and rewarding for everyone involved.
Matt Purcell is the owner of Purcell Law in the Tri-Cities, Washington, a family law firm devoted to Bringing You Back to Harmony. Along with practicing collaborative law, Matt focuses his practice on family law litigation, mediation, and qualified domestic relations orders. Matt is a former board member of Collaborative Professionals of Washington, as well as a past president of his local bar association. While he practices primarily in Washington, Matt is also licensed to practice law in California. Learn more about Matt and his practice at: https://www.purcellfamilylaw.com
Asa LaMusga is a principal and founding member of Gravis Law, a full-service, multi-location law firm founded in the Tri-Cities Washington and devoted to un-complicating the legal process for clients. Along with practicing collaborative law, Asa focuses his practice on mediation and litigation. Asa is presently a board member of Collaborative Professionals of Washington, as well a current trustee of his local bar association. While he practices primarily in Washington, Asa is also licensed to practice law in Idaho. Learn more about Asa and his practice at: https://gravislaw.com
Download our guides for expert insights to plan your estate, navigate family law, or secure your future. Simplify the process with clear, actionable steps. Get started today!