Who has not watched a James Bond film and said to himself, “those gadgets are so cool!” or “I wish I had one of those?” Well, nowadays, you can visit your neighborhood spy shop or any online espionage hardware retailer and purchase cool gadgets, sleek hardware, and micro devices that can be used for any clandestine task you can conceive. “I Spy” was a great game when you were a kid. Now “I Spy” is for real; you can, too. But is it worth it?
You may be asking, “What does this have to do with Collaborative Divorce?” After you finish reading this blog, it will be abundantly clear.
We live in an age of technology, one right out of an Orwellian dystopia. There are GPS trackers that can be placed on your car, hidden cameras that are housed in pens, covert audio recorders, and even devices for monitoring smart phone activity. You might have seen the hit series on CBS called Person of Interest in which the protagonists help specific individuals out of dire situations through the manipulation of their technology, by way of “bluesnarfing.” Bluesnarfing exploits a basic Bluetooth feature that allows devices the unauthorized access of information from a wireless device through a Bluetooth connection. Our heroes track these “persons of interest” through the hijacked use of a smartphone’s GPS. They listen to their conversations, and they track their emails and text messages, all through bluesnarfing. We live in an age in which the expectation of privacy has been micro-valued due to the proliferation of surveillance technology.
This brings me to a case I had some time ago. It was years ago, around Christmas, and I was deep into drafting an appellate brief. My legal assistant, Sheila, crept into my office, meekly explaining, “Joryn, I just got a call from Alyssa. She needs to see you ASAP.”
“Well, that’s strange,” I said, frowning slightly. Alyssa is just an acquaintance, not a client. “Tell her I’m booked up today, but Thursday or Friday after 2:00 pm would work,” I suggested.
Sheila looked down at the floor, pivoting the ball of her shoe to the tile while clarifying, “Alyssa said it was an emergency so I sort of scheduled her today.”
In an understanding tone, I asked “Ok, what time?”
Before Sheila had a chance to say a word, the door slammed all the way open with the force of a tornado. “My husband’s cheating on me,” Alyssa exclaimed in a fit of tears, mascara running down her face.
I grabbed the box of Kleenex behind me and handed them across. Sheila backed out of the office, closing the door quietly as she left. Alyssa collapsed on the couch with the tissues and composed herself. “What makes you think so?” I asked sympathetically.
Alyssa stammered, incoherently, “Well, there is just so much time. . . . He’s gone for so long. . . . I put a bug on his car.”
Well, that was a surprise! I waited a breath. “And?” I finally asked inquisitively.
“My husband visits three different houses in town on a regular basis, and none of them belong to our friends.” I must have looked skeptical because Alyssa’s voice changed from an aggrieved pitch to one full of conviction, “I know what’s going on, and I’ll get the proof.” She leapt to her feet and exited determinedly.
For a whole month, I left casual-sounding voice messages and e-mailed vague inquiries about how she was “feeling,” but heard nothing from Alyssa, when suddenly she appeared at my office, an envelope clutched under her right arm.
“Alyssa,” I said, trying not to sound irritated, “I’m so happy to see you, but please make an appointment next time. I try to be available, but sometimes it’s just not possible.”
“I’ve got it, I’ve got the evidence!” she exclaimed, without preamble, in a tone mixed with excitement and rage. She spread a stack of pictures, wire transfers, emails, instant messages, and just about any other private material that one could imagine on my desk. “I want his head on a pike,” she said satisfactorily.
I calmly explained to Alyssa that Florida is a no-fault divorce state, meaning that, in most situations, a party will not be punished for his or her perceived misbehavior. If there is a custody battle, such poor conduct could be used to prove that a party lacked “moral fitness.” Or, if one spouse has spent obscene amounts of marital funds on a lover, the other spouse might receive reimbursement for those funds. But generally, the judges do not want the parties to air this kind of dirty laundry in court.
I recommended to Alyssa that the collaborative process was a healthier, more holistic way to approach a divorce. I explained that the parties and their attorneys would work as a team with a neutral team facilitator and a neutral financial professional to reach a settlement that recognizes both parties’ and the children’s best interests. I compared the process to traditional litigation in which the parties duke it out in the courtroom, play discovery games, file motions over every little issue, and waste a lot of money in the process. In litigation, one side wins, and one side loses, and both sides are enemies when all is said and done. In contrast, in collaborative, the team focuses on the parties maintaining a good working relationship once the divorce is over, as well as formulating a settlement whereby both parties’ most important interests are met.
Unfortunately, Alyssa did not want to hear it. No matter what I said, Alyssa was convinced that compiling proof of her husband’s adultery would enable her to punish him somehow. She was determined to make her husband pay. She wanted Jack’s “head on a platter.” Her divorce dragged on for years, when it likely would have concluded well within six months in the collaborative model. By the end, the parties had spent 75% of their marital assets on legal and expert fees and court costs. Their children suffered as they watched their parents destroy each other, and they required extensive counseling, which the parties could no longer afford. Given their scorched earth tactics and the consequent anger, Alyssa and her husband were unable to co-parent and continued to have post-judgment issues until their youngest child finally reached eighteen.
Prolonged litigation is mutually assured destruction; not just financially, but physically and emotionally. In a collaborative divorce, Alyssa would have saved herself, and her children, time, money, and the jarring emotional damage that was caused throughout her traditional courtroom divorce. “I Spy” was a great game when you were a kid. Now “I Spy” is for real; you can, too. But what then? And is it worth it?
Don’t litigate; collaborate.
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About this week’s authors: Joryn Jenkins.
Joryn, attorney and Open Palm Founder, began her own firm here in Tampa after a 14-year career in law, 2 of which she served as 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.