THE RELUCTANT SPOUSE IN THE COLLABORATIVE PROCESS

By: Mark K. Bass, Esq.

            Collaborative Divorce is premised on the concept of divorcing spouses and collaborative professionals working together toward the common objectives of ending a marriage equitably, with dignity, respect and with the best interests of the family in mind.  Yet in order to meet these objectives both spouses must be willing to take part in the Collaborative Process.  A key question faced by collaborative professionals is how do we get the Reluctant Spouse into the Collaborative Process?

            When the subject of divorce is raised by one or both spouses during the breakdown of the marriage, there is often a lack of trust between the spouses.  While divorce presents many difficult issues which can be addressed within the Collaborative Process, how do we address them when the couple is considering a divorce and has not yet agreed to the Collaborative Process?  While many people are well aware of litigation and mediation as divorce processes, fewer are aware of Collaborative Divorce.  Therefore, when it is introduced by a spouse, whose trust is in issue, it will often times be viewed with suspicion. Alternatively, anger may play a role in considering litigation and not selecting collaboration.  A spouse may not consider Collaborative Divorce, because he or she is paralyzed by the prospect of what the future will hold.  There are many other situations which may prevent a spouse from taking a serious look at Collaborative Divorce. The question before us is:  what tools do we have as practitioners to make the option of Collaborative Divorce available to the Reluctant Spouse?

            When a prospective client shows a desire to take part in the Collaborative Process how do we enable the prospective client to get the Reluctant Spouse to consider the process?  The following are some tips that may be of assistance:

1. Provide the prospective client with a package of material to give to the Reluctant Spouse.  The material should be such that it gives the Reluctant Spouse information from which to evaluate the Collaborative Process and locate a collaborative professional to consult. The material should not be self promoting.

2. Make available to the Reluctant Spouse (via your prospective client) web sites which are informative and provide information which can be reviewed on-line in the privacy of one’s home. Again, the collaborative professional should avoid self-promoting.

3. You can provide your client with a list of recommended reading or a particular book on Collaborative Divorce, which your client can make available to the Reluctant Spouse.

4. If circumstances are such (and the Reluctant Spouse is not represented by legal counsel), you may want to send a letter advising the Reluctant Spouse that you have been retained and/or consulted. Include a packet of material introducing the Reluctant Spouse to the Collaborative Process as well as a list of web sites. If the Reluctant Spouse has retained counsel, you may want to suggest the Collaborative Process to his or her attorney (some practice groups will work with lawyers who are not trained, if the lawyer is willing to enter into the Participation Agreement and appears willing to proceed with the Collaborative Process in good faith).

            When the above suggestions are not enough to get a Reluctant Spouse to consult with a collaborative professional, outside intervention may be needed.  I had been involved in a case where the Reluctant Spouse refused to consider collaboration. The Reluctant Spouse threatened litigation and threatened that his lawyer would tear apart the lawyer on the other side (me). The Reluctant Spouse would not consider anything that my client wanted. If my client suggested something, the Reluctant Spouse rejected it out of hand.  My client was at her wit’s end. She was going to abandon collaboration and prepare for litigation.  I inquired whether she had a family member or friend who might be able to show her Reluctant Spouse the light. My client decided to call the reluctant spouse’s mother. Who better to come to the aid of the grandchildren and the family? Within days the Reluctant Spouse contacted a collaborative professional and entered into the Collaborative Process.  Family and friends can be a powerful resource in getting a Reluctant Spouse to consider the Collaborative Process.

            Along the same lines a member of the clergy, mentor, family counselor or therapist may be able to present the alternative of Collaborative Divorce to a Reluctant Spouse.  These individuals can be referred to web sites and given printed material to make them effective advocates for the process.  They may even wish to consult with a collaborative professional to learn more about the process. As collaborative professionals we should consider making ourselves available without charge to educate the public about the Collaborative Process.

            In one interdisciplinary practice group, a Coach contacted a Reluctant Spouse to see if he would be willing to learn about and consider the process.  In this regard the interdisciplinary team members may want to consider an initial consultation without charge.  Another alternative is for the interested spouse to offer to pay for the Reluctant Spouse to have an initial consultation with a collaborative professional of the Reluctant Spouse’s choosing.  

            A colleague told me of a situation where she filed an action in order to get the Reluctant Spouse’s attention, and it worked (the summons was withdrawn at a later date). However, this method clearly has its risks (i.e. pushing the Reluctant Spouse to a litigator). 

            Your interdisciplinary practice group may also want to designate a coach (or coaches) to act as a Couple Consultant.  The Couple Consultant, would meet with the couple (which presumably would include at least one Reluctant Spouse), in a neutral, non threatening forum, where the Collaborative Process will be explained and the couple’s questions will be answered.  However, it must be kept in mind that the Couple Consultant may be precluded from acting as a coach for one of the parties in the future, subject to the desires of the spouses, the ethical requirements of the collaborative professional and the procedures of your practice group.

            Whatever method one chooses, the key advantages to Collaborative Divorce must be stressed, including the process being in the best interest of the couple and their children.  Furthermore, it can be stressed that the process does not close the door to litigation. While Collaborative Divorce has a very high success rate (statistics can be provided to the Reluctant Spouse), if it is unsuccessful, the alternative of a traditional litigated divorce is still available, albeit with different lawyers, mental health care professionals and financial consultants.

            You may be faced with a situation where you, as the collaborative professional, are contacted by the Reluctant Spouse.  Keep in mind that you have all of the tools set forth above at your disposal to help get the Reluctant Spouse on board. In addition you may want to see if a collaborative professional from another discipline would be willing to meet with the Reluctant Spouse to address his or her concerns from a different perspective. Use the professional resources of your interdisciplinary practice group.  If financial concerns, emotionally centered issues, child issues, or legal issues are of paramount concern, see if the Reluctant Spouse can speak with the appropriate collaborative professional to help the Reluctant Spouse determine if the Collaborative Process is right for them.

            A word of caution, when a spouse or couple comes to the Collaborative Process very reluctantly, you should consider having the attorneys and coaches meet with their respective clients to determine if the case is appropriate for the Collaborative Process. It does not serve the couple’s purposes or that of the collaborative professionals or the Collaborative Process to take on a case that the professionals know from the beginning cannot succeed.

            I am sure that many of you have used other successful approaches to assist a Reluctant Spouse to consider the Collaborative Process. Please share your thoughts and e-mail them to me at mark@bassabramslaw.com. Perhaps they can be shared in a follow up to this article.

            Please keep in mind that any contact you may have with a Reluctant Spouse, must be in conformity with the ethical requirements of your profession and the ethical rules in your jurisdiction. © 2006

Mark Bass is a member of Bass & Abrams, P.C.  He is on the Board of the Hudson Valley Collaborative Divorce Association www.collabdivorce-ny.com and Chair of its marketing committee. Mark is also on the coordinating committee of the Collaborative Divorce Group of Westchester and Putnam www.collabdivorce.net and is a member of the Collaborative Divorce Team of the Hudson Valley.