Many collaborative lawyers have informed me that they would never consider attempting the collaborative process if they are aware that there have been domestic violence incidents between the two spouses in question. That attitude strikes me as being close-minded. I can argue that most relationships punctuated by any domestic violence at all can be dissolved collaboratively with the right team. To refuse summarily to attempt the process with two willing participants is to deny the family a positive resolution because of one’s own ignorance or bias.
That said, as I am fond of telling my divorce clients, I am not a psychologist. However, my opinion has been formed by years of experience in the court system, and several years now of collaborative divorce participation.
In order to grasp the possibility of a collaborative divorce following on a history of domestic violence, first identify and understand the various forms of domestic violence. Not every situation is the same, just as not all types of domestic violence are the same. The forms range from coercive controlling violent to situational and separation-instigated violence.
That said, the victim of a coercive controlling violent relationship is personified by repeated compliance with his or her abuser’s demands and threats. In this situation, then, we can probably agree that there is very little hope for a divorce to be accomplished collaboratively, in which both clients participate completely without coercion.
The situational couple’s violence occurs more as a result of anger and tolerance management issues, which lead to explosive, unplanned, and usually minor acts of violence. This type of violence is less likely to escalate, and intimidation and stalking do not occur, as they often do in coercive controlling violent relationships.
Separation-instigated violence occurs, as the name suggests, when the end of the relationship is imminent. There is no history of violence in the relationship with this form of domestic violence. There is a low likelihood of continued abuse once the relationship is over, as well.
“In long and litigious divorces, the domestic violence victim is forced to relive these terrible moments again and again.”
Because of these differences, there remains the possibility of a collaborative divorce between spouses where situational violence or separation-instigated violence occur.
James Hallett focuses on choosing the route that will do the least damage to the family in his article “Domestic Violence and Collaborative Law.” There, he classifies divorce cases as either litigation or mediation, with the collaborative process falling under the “mediation” heading. (I don’t agree with this classification, but let’s just go with it for now.)
Through litigation, punishment is the only choice when domestic violence comes into play, rather than the option of addressing the issue and acknowledging the possibility of treatment and rehabilitation. Long, litigious divorces are hell on both parties, financially and emotionally. In them, the domestic violence victim is forced to relive these terrible moments again and again. (By the way, so is the perpetrator.)
Contrast that a key characteristic of the collaborative process is to address the clients’ emotional needs.
This is not to say that all divorce matters should be handled collaboratively, or even that most should be (in fact there are guidelines to screen the appropriateness of collaborative law for divorcing spouses). It takes a resilient and experienced mental health facilitator to be able to enjoy any chance of success when domestic violence is present. He must be alert for triggers or any sign of manipulation, at the same time as he works vigorously to keep emotions in the room in check.
In general, people feel very passionately when domestic violence is mentioned. The mere mention of it evokes a strong emotional response. The ability to separate from these human responses is essential for the collaborative professionals to remain neutral throughout the process.
One of the pillars of the collaborative divorce process is transparency, facilitating open communication in order to reach a settlement acceptable to both spouses. Thus, there can be no coercion or intimidation. If there is, the process cannot be collaborative. A client shutting down or giving in is not conducive to the process. Because these responses are much more likely to be present in a domestic violence situation, there must be adequate screening measures in place for any history of coercion or intimidation, necessarily excluding the couple from a collaborative resolution. Collaborative team members must be trained to spot any coercive behaviors, as well.
Divorce is not easy. The focus must be on the family and what will help all of its members through this difficult time. After considering all variables, if collaborative divorce may be successful, then it should seriously be considered.
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About this week’s authors: Joryn Jenkins and Chris Duda.
Joryn, family attorney and Open Palm Founder, began her own firm here in Tampa after a 14-year career in law while also serving as a full-time professor in law at Stetson University. She is a recipient of the prestigious A. Sherman Christensen award, an honor bestowed upon those who have provided exceptional leadership to The American Inns of Court Movement. For more information on Joryn’s professional experience, take a look at her resume.
Co-authored by Christopher Duda.
Christopher Duda is a University of Florida undergraduate scheduled to attend the University’s Levin College of Law this fall. In addition to working as an assistant at Open Palm, Christopher’s interests span from a passion for reading to SCUBA diving and spearfishing off the coast of Fort Meyers, Florida. He is interested in pursuing a career in either criminal or corporate law.