On May 2, 2019, ten years after his divorce, John McElhenney wrote an online letter to his 16-year old daughter for the Good Men Project, expressing his regrets at losing “huge chunks of life with her” as a result of his collaborative divorce. But that was not a Collaborative Divorce.
He tells his daughter, “as I agreed to your mom’s request for the divorce, I began to ask for how we were going to do things collaboratively. The biggest request I had was 50/50 custody. I was losing a huge portion of your presence in my life. I wanted it to be a fair split. The same split we used to share parenting duties, chores, and financial contributions.”
He then describes what he calls a collaborative divorce:
I also agreed to something called a collaborative divorce. That means that your mom and I agreed to negotiate without lawyers and not sue each other for what we wanted in the divorce. Collaborative divorce was really not what happened. We met with a divorce accountant to understand the money, and we went to a divorce therapist to help us create a healthy parenting plan and ground rules for how our lives as a family would be shared after the divorce.
I remember the day I went into the divorce therapist’s office to negotiate with your mom, I can still smell and see the office we were sitting in when I enthusiastically presented a parenting plan and a schedule base on 50/50 custody. Neither the woman therapist or your mom looked happy. I didn’t know what was about to happen, but in that moment I felt the world falling out from under me. I was not going to get 50/50 custody. No, by the looks on their faces, they had a different outline for how this was going to go down. I knew I was going down for the count, I could feel the depression seeping into my veins, even as I was still living in the house with the kids. I was already feeling what I had lost: a huge part of my children’s lives.
That was not a Collaborative Divorce.
To begin, in a true Collaborative Divorce, each party does have a lawyer. In New York, as elsewhere, a Collaborative attorney is a certified mediator, specially trained in the Collaborative Process to balance the duty to the client spouse with helping both parties move discussions forward. We spend years developing our ability to assist the parties communicate at the table and fashion a resolution that meets both spouses’ interests.
The lawyers are assisted by neutral financial specialists who may both meet alone with the parties and participate at the table. They efficiently (saving money) provide both spouses with the information they need on assets, liabilities, income and expenses in order to reach a settlement that will best work for both of them.
And yes, there are the neutral mental health professionals (the Family Specialists). They, however, do not do “therapy.” They do work with both spouses alone and at the table. They address emotional blocks to discussion, assist with the parenting plan, and perform a host of other functions that help the parties to be able to get to their agreement.
It is readily apparent that Mr. McElhenney did not trust his “divorce therapist.” He did not see the therapist as neutral. Regrets, if not anger, will be the result if trust in neutrality is not present.
In the Collaborative Process, both spouses must trust the family specialist as neutral. Both spouses have a voice in the selection. And the same is true for the financial specialist. Both parties must be comfortable with the Team.
Every divorce results in loss. Transitioning the family through divorce, to minimize that loss, is the role of a true Collaborative Divorce. It’s the only divorce process that takes on that role.