By: Ellen Fischer, Esquire and Henry Yampolsky, Esquire
Whether you grew up watching 90210, Real World or MTV Beach House, today’s modern families are evolving beyond what was even in the 1990’s considered abhorrent or abnormal family life given that these shows addressed such topics as homosexuality, bisexuality, AIDS, drugs, addiction and abortion.
Same sex marriage, polyamorous relationships, transgender, multi-cultural, fluid, and multi-generational are just a few ways modern families are redefining themselves. Our current Divorce Code, which was first introduced in 1980 and which has changed little since then, does not fulfill the multi-faceted legal needs of the modern family. Stereotypes which underline many laws and court decisions make going to court a nightmare. Many judges just do not understand or appreciate these so-called “non-traditional” lifestyles and are unable to ably fashion appropriate remedies for the dissolution of these families. And, considering the relatively public and highly acrimonious nature of court proceedings, the emotional toll and financial drain for the parties, many non-traditional families find themselves adrift in a traditional and adversarial system that is not designed to serve them.
Collaborative Practice offers a viable, understanding and safe alternative to these families. Generally, Collaborative Practice is a process whereby a team of professionals which includes specially trained lawyers for both parties, a neutral coach and a neutral financial expert works together with the family members to develop creative solutions that are right for the particular family. At the outset of the process, family members and these professionals agree to work together collaboratively, cooperatively and transparently, instead of going to court. The presence of a neutral coach and a neutral financial expert ensure better communication between the parties and more effective and personal financial resolution. Working together in a non- adversarial way enables the family members to arrive at decisions that serve each of their unique needs.
Collaborative Practice can be effective in a wide range of issues facing modern families such as relationship break-up and restructuring, co-parenting, estate planning, co-habitation and children’s contacts with individuals who may have no or limited rights under the “traditional” family paradigms, prevalent in the Courts. The five key benefits of Collaborative Practice (“CP”) for non-traditional families include:
- Confidentiality. Unlike Court proceedings which are generally public, CP is a private process, which happens outside of the purview of the Courts. All professionals engaged in CP practice are bound by rules of strict confidentiality and cannot and will not make the information about the families they are working with public. The agreements that result from CP process are fully viable legal agreements, enforceable by the Courts, but can remain completely confidential for their full duration.
- Flexibility. CP is an out-of-Court process. Thus, it allows the participants immense flexibility – from scheduling meetings at times and places convenient to everyone (not just lawyers and judges), to going beyond traditional legal framework in crafting agreements, to having an opportunity to “test-drive” a particular solution, before fully committing to it.
- Creativity. Without the pressures and acrimony of litigation, the parties and CP professionals can consider many different options and create custom solutions that satisfy the unique and constantly evolving needs of modern families.
- Control. Self-determination of the parties is one of the most fundamental pillars of CP practice. All the professionals are there for one and only one reason – to empower the parties to make decisions that are best for them.
- Relationship. Instead of treating people as adversaries who are unable to communicate with each other, CP encourages cooperation, respect and dignity among the parties. This allows for preservation and strengthening of important relationships which form the foundations of most families.
Until our Courts have sufficient experience and framework to respectfully and fairly deal with non-traditional families, the Collaborative Practice provides confidential, flexible, creative and empowering alternatives to them.