Divorce is like a death in the family, except no one is bringing you food. We live in a time of volatility, uncertainty, complexity, and ambiguity. And divorce is just like that. However, there is an antidote to the negative messaging about divorce that aligns with such core values as dignity, mutual respect, integrity, and compassion. Collaborative divorce is an interdisciplinary, non-adversarial divorce model, and Nanci A. Smith, Esq., is an expert on the process. She is the chair of the Collaborative Divorce section of the Vermont Bar Association, a leader in her collaborative divorce practice group, and a member of the International Academy of Collaborative Professionals. She frequently writes and talks about divorce, family law, ethics, and collaborative divorce practices. She believes that a good divorce is possible when you show up for it with humility, compassion, and the correct support. Smith is the author of Untangling Your Marriage: A Guide to Collaborative Divorce (Rowman & Littlefield Publishers, Oct 11, 2022). Learn more at nancismithlaw.com.
Excerpts from our exclusive interview with Nanci:
Can you tell us a little about your personal experience with divorce and how you became involved in the Collaborative Divorce process?
Yes, of course. I’ve been a divorce lawyer for over 30 years, and I’ve been divorced for thirteen years. So, my experience with divorce is both professional and personal.
I first learned about the concept of Collaborative Divorce in 2005 via email, literally hours after returning to the office after an aggressive child custody battle. As soon as I read about it, I thought, “My goodness this seems like a sensible way to get divorced.” So, that is when I started training in the practice and helped organize our local interdisciplinary practice group, which is made up of legal, financial, and mental health professionals. This is “the team” that comes with a Collaborative Divorce process, an interdisciplinary and out of court approach to divorce. It creates an opportunity to build a bridge between the divorcing couple that results in a divorce with dignity, compassion, and mutual respect.
Collaborative divorce has been around for about 30 years and it is still one of the best kept secrets among divorce professionals, including divorce attorneys. We started using this model in Vermont around 2005. As more people experience it, more people want it. It is growing as an attractive option and choice for couples who want to remain civil, it not friendly, especially when they intend to put the needs of their children ahead of their animosity toward each other. It is practiced in every State in the United States, and abroad.
Fast forward to 2010 and my own divorce. Regrettably, we were not able to do a Collaborative Divorce, but we were able to reach an agreement without going to court.
What is the difference between a litigious divorce and a collaborative divorce?
Once the decision to divorce has been made by one person or both, the outcome will be the same: A piece of paper from a court that grants the divorce to the one that asked for it. The main difference for the couple, is how they approach the process to get the official recognition that the marriage is over.
The litigious divorce is one where the couple cannot resolve the issues that are present in every divorce by negotiation. They ask the court to do the work for them: allocate property, address alimony and address issues related to minor children, such as parenting rights and parent-child contact. The result is often years of hard feelings, an adversarial stance toward your former spouse, and a negative impact on children. It is basically everyone’s worst nightmare, and it costs a small fortune in attorney’s fees, because going to court is expensive if you need a lawyer to help. The court imposes a solution. Both spouses are usually unhappy with the outcome. No one wins in family court.
A Collaborative Divorce is the antithesis to a litigious divorce.
Collaborative Divorce is a voluntary, out of court process, where the emotional, financial, and legal issues that the couple present, are all resolved without going to court. The couple uses the team for support in all aspects of the divorce: from telling the children, to reaching an agreement on parental rights, child support, income division (alimony/spousal support), and allocation of the property (assets and liabilities). The result of the process is for the lawyers to draft the paperwork and file an uncontested divorce, so the couple never steps foot in a courthouse. The couple uses the time it takes to get divorced (usually six months or more) in constructive, supportive and affirming conversations (even when they are hard and uncomfortable) to reach a durable resolution that meets their individual needs and the needs of the family. It is an empowering and discreet process. While it still costs money to have the support of a professional team, it is more efficient and less costly than a litigious divorce.
Is Collaborative Divorce even legal and how do you go about finding a lawyer who knows about it?
Oh yes! Of course, it is legal! The model is used and available in every state in the United States. It has been recognized by the American Bar Association and the State Courts and Bar Associations of every state as a legitimate form of dispute resolution. Remember when no one had heard of mediation, thirty years ago? Now mediation is required in nearly every dispute, including divorces. Collaborative Divorce is like mediation on steroids. It is just taking some time to inform the public that it is a viable and hopeful option.
You say that Collaborative divorce is both a legal process and a mind-set, where your psycho-spiritual-emotional health is the key to a successful outcome. Can you talk more about this?
Any person who has been divorced, watched their parents go through an ugly divorce, or who is thinking about divorce, knows that this is a major life transition with an intense emotional impact. Using a divorce process that is rooted in dignity, compassion, and mutual respect is a game-changer. It is a paradigm shift of a huge magnitude for individuals, families, and communities. It takes the shame and blame out of the natural desire to extricate oneself from a relationship or marriage that is not working. It gives the divorcing couple, each of them, the time and space to manage their emotions, understand the financial impact of the divorce, and participate as an equal in the negotiations, regardless of historical roles and identities. This is good for the individuals, and for the family, including the children who can watch their parents handle adversity and conflict with kindness and mutual respect. Creating a new family structure in two homes is not easy, but it is worth it.
That is what I mean when I say Collaborative Divorce is both a mindset and a process. When we take the fear and anxiety out of the divorce process, people are free to take care of themselves and heal from the grief that a divorce presents.
How can someone decide if they are a good candidate for Collaborative Divorce?
It is not easy to make the decision to divorce. The questions someone might want to consider when evaluating the Collaborative Divorce option, are: Do I want an amicable divorce? Do I want to spare my children the negative impact of an ugly divorce? Do I want to use appropriate professional resources to emerge from this divorce healthy and confident, instead of bitter and resentful? Can I see my partner and me, with correct support, working out the details of our divorce in a private, discreet, and respectful process?
In general, the best candidates for a Collaborative Divorce are people who want a divorce that aligns with their own personal core values, like mutual respect, dignity, transparency, and compassion, for themselves and others.
People can still be mad as hell at each other, feel a variety of hard feelings (anger, anxiety, betrayal, vengeance), and chose to process those feelings, instead of acting them out in an adversarial process. It is a process that is designed to be forward looking – an opportunity to use the next six months to a year healing from the impact of divorce, instead of fighting each other in court.
No matter at what stage of the marriage divorce happens, it can have profound effects on other family members. Can you offer some advice on how to handle the “family” divorce.
It is true, divorce has a ripple effect on families, friends, and the community. Sometimes in the grief and overwhelming feelings of loss and change, the impact on the rest of the family can get lost. One of the best tips is to consider at the beginning of a divorce how to create a common narrative for the children and families so there is a consistent message. Something like: We still love and respect each other very much and we have decided that we will be better friends and co-parents if we are not married and living in the same house.
While children are “resilient,” they need consistency and to feel loved by both parents. They need to see their parents walk the walk, not just talk the talk. In my experience, I think it is best not to say anything until the adults have a plan of action. Telling the kids before the details are resolved, can cause them to feel unsettled. Think about how your child (minor or adult) will talk to their friends about your divorce. Do you want them describing the worst thing that ever happened to them, or that it wasn’t so bad and they see that you are both happier living apart?
Do you have any advice for men, in particular?
I’d say that our culture seems to expects all of us, regardless of gender to “grin and bear it,” but this is especially true for men in the divorce context. It is important for men to feel supported and heard in the divorce process. Finding a process that honors the male perspective is important to feeling valued as a human being, not just as a traditional financial provider. Modern marriages and long-term relationships often defy outdated gender stereotypes. Men should feel emotionally safe to express their needs and hopes for their own future. It is important to find what brings them joy, outside of the marriage. It may be finding time to work out, spend time with friends, start a new hobby, join a team, play music, read, meditate, or whatever will calm your nerves during this intense transition.
There is a myth or misconception that men do not suffer in a divorce. While it is statistically true that men do better financially in a divorce compared to women, women are statistically happier to be out of the marriage, compared to men.
Final advice: Avoid overindulging in sex, drugs, alcohol, or other avoidant-coping mechanism. Go to therapy and find peace and understanding about why this marriage ended, so that you do not repeat the same patterns with your future relationship.
It’s hard to think about the future when you are in the process of divorce, but there will come a time when everyone is ready to move forward. There is a tendency to become martyrs of self-sacrifice, as if our needs are not as important as everyone else’s. What advice can you offer to help people reframe their thinking and what concrete things can they do proactively to discover a new, fulfilling life?
This is the crux of it all, isn’t it? The art of reframing one’s circumstances from the negative to a more positive perspective is what separates the folks who divorce well from those who don’t. It is quite possible that a divorce could ruin your outlook on love, marriage, and the future possibility of happiness. Choosing a divorce process like a Collaborative Divorce gives people the opportunity for a different perspective on their past, their spouse, and their future ability to handle adversity with dignity and respect.
I suggest that you lift your eyes up above the horizon a bit and take the steps that you need to feel okay about yourself. Divorce has a nasty way of attacking one’s self-esteem and sense of worthiness. Counteract that with self-compassion. Be nicer to yourself. Invest in things that bring you joy.
Do you have any other advice you would like to share with people to help them change divorce from a shame-and-blame model to looking at divorce through a lens of resiliency, transformation, and an opportunity for personal growth?
If they can do that, then I think they are well on their way to an awesome next stage of life! It is easier said than done. Getting the correct support is the first step. Exploring Collaborative Divorce as an option keeps these concepts top of mind, and more likely to be achieved. The entire team is invested in these ideas, as well.
