The Opposing Counsel

It’s a funny thing about collaborative cases; we trial lawyers are so accustomed to our secret language that it turns out collaborative practice is not just about making the paradigm shift in our attitudes, but it’s also about making that adjustment in the very language we use when we discuss our cases. Our special shorthand, in which Opposing Counsel is “OC” and Opposing Party is “OP,” no longer seems appropriate or even accurate in our collaborative cases. Now the opposing lawyer is no longer just an opposing lawyer; she is also a teammate, a novel type of co-counsel. Together we work diligently and cooperatively towards the same goal as our clients, creating an agreement that maximizes the goals and interests of both.

We married young. My wife saw me through law school and stayed home for the next thirty-eight years. During that time, we had four boys and raised them well. Although work required that I travel quite a bit and be an active member in several groups, I still managed to make time for my boys when I was home.

The day my youngest turned thirty, I came home and my wife said she wanted a divorce. “Lynn, what are you saying?”

“I don’t love you anymore, Pete. I don’t want to live with you and I want to sever our relationship.” Obviously, she had been contemplating this for some time.

“Why?” I asked, stupidly.

She responded quickly. “Because we don’t share a life. I’ve been your maid for years now. The boys are grown and there’s no reason for us to stay together anymore. It’s time that I waited on myself.” Her face was red, her anger palpable.

I was totally perplexed, and becoming a little angry. “I’ve spent thirty-eight supporting you, creating a life for both of us to enjoy. And it’s only now that the boys are grown that we can enjoy the fruits of my labor.”

As a trial lawyer, I’ve never practiced family law, but have plenty of friends who do. I’d heard horror stories about how families destroyed themselves in the litigation arena. But I had also heard of a new way to approach divorce. It made a way to negotiate a marital settlement agreement that a court could then simply rubber-stamp, without interfering with a couple’s ability to make decisions about how to divide their assets and parent their children. More importantly, our personal business and finances would remain private, instead of being broadcast all over the courthouse. I decided that this might be a better route to take, and did my homework.

I found several attorneys in the area who had been trained. One firm’s website really spoke to me. Joryn Jenkins’ firm was called Open Palm Law because “an open palm holds more sand than a closed fist.” As I perused her site, I noticed that the attorneys and staff were smiling non-aggressively. Their profiles gave me a sense of what type of people they were, not just what type of attorneys. I was immediately drawn to this firm.

When I met with Joryn, I knew almost immediately that she would handle my divorce as compassionately as possible. She was dressed in jeans, flip flops, a casual top, and funky jewelry. Her puppy greeted me at the door, and her office was decorated in a relaxed, Tommy Bahamas-style.

While she explained that litigation was an option, she encouraged me towards the collaborative divorce process because it is family-focused and less destructive, even arguably constructive. My wife and I had been married for so long that, although we’re no longer raising children, she will always be a huge part of my life. We have four boys and six grandchildren together. I definitely wanted to maintain as good a relationship as possible with her, so this method was especially appealing.

I retained Joryn. Thankfully, my wife also retained a collaborative lawyer. Our attorneys worked together to retain a neutral team facilitator and a neutral financial professional. I was nervous about the first team meeting but everyone was so polite, even my wife’s attorney. He was an older guy (What am I saying?! So am I!) with a slow, southern drawl and a bushy mustache. I didn’t want to like him, but I did. Our team facilitator was a lovely woman, bubbly and energetic. The financial professional, a younger, thinner man, wore wire-rimmed spectacles and a bow tie.

The facilitator began by discussing our goals. Mine were to fairly distribute our assets, to help Lynn financially while still retaining a reasonable amount of income, and to keep a realistic focus during the process. Hers were to fairly divide our assets so that she was financially secure and to find peace with me by the end of the process. I was pleasantly surprised by her second goal. I hadn’t realized that she also cared to preserve our relationship after the divorce, although I suppose I should have.

By the second meeting, we had exchanged all of our documents. After brainstorming and formulating options, we started the real work, discussing our interests. When it got down to it, though, Lynn demanded our home and most of the retirement funds, basically all of our assets. On top of that, she seemed stuck on a specific amount of permanent alimony that would give her a higher income than mine while I would be forced to continue working over sixty hours a week indefinitely. Although I loved my job and had no immediate plans to retire, I was getting older, and couldn’t work forever. I needed to plan for my eventual retirement, and her proposal would leave me unable to plan accordingly. She basically wanted everything!

We talked about all of these “interests” but, no matter what I suggested, she was adamant that her way was the only way. I grew discouraged because she was being very positional, not collaborative at all. When we finally adjourned the meeting, I couldn’t wait to leave.

Nothing changed between the second and third meetings, although there was definitely more tension in the room during the third meeting. I felt like I was at the end of my rope. Lynn continued her ridiculous demands.

An hour into the meeting, in front of us all, her lawyer put his hand on her shoulder and, speaking softly in his deep southern twang, asked her “Lynn, think for a minute about what you’re asking for. Does it really sound reasonable to you?”

I was amazed. Everyone in the room had to be thinking the same thing, but I couldn’t believe that her attorney was the one to say something. It brought her up short, especially because it came from her own lawyer.

She started to respond and then stopped… and thought. You could have heard a pin drop. Finally, she admitted, “No, I guess not.”

The entire mood in the room changed; it was as though everyone had taken a breath of fresh air together. We cut the meeting short so that Lynn could privately discuss my various offers with her attorney and the financial professional.

That was the turning point. Our fourth team meeting was our last because we were able to reach a very reasonable agreement. She got the house, and I received more of the retirement investments to make up for it. She agreed to a fair amount of permanent alimony.

We are still friends. We can both visit with our grandkids without worrying about whether the other will be there at the same time. It’s fine if they are.

If divorce is inevitable, why would anyone go to court to get divorced when they can use this kinder, gentler method of re-constructing their family relationships?



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