Collaborative law is the practice of proceeding with a marriage dissolution without going to court (other than submitting a written stipulation settling all issues in the divorce).  The parties contract with each other and their attorneys to refrain from using the court process to litigate or contest disputes.  If the parties and their attorneys sign a participation agreement, it is understood that if either or both parties seek relief in court (other than processing the final, stipulated divorce decree), the collaborative attorneys will withdraw, and the parties will retain different counsel for the court proceedings.

The case proceeds based upon the negotiation of the parties, mediation or early neutral evaluation if a third party facilitator is needed, and an arbitrator or consensual special magistrate if there is a contested dispute in need of a binding decision.

When Collaborative Law first emerged in the 1990’s, alternate dispute resolution (ADR) (such as mediation and early neutral evaluation) was not yet as commonplace as ADR is now.  During the last two decades, there has also been an increase in the availability of consensual special magistrates and arbitrators to provide for addressing contested disputes outside of court.

One drawback to the collaborative process is that the process breaks down without a certain level of cooperation from both parties.  The parties and attorneys must reach agreement, where possible; identify the contested issues; and determine the forum and time frame for resolving the contested issues.  If one party wants to delay the proceedings, it is possible to manipulate the process to prevent forward progress.  In non-collaborative cases, an upcoming court date often provides incentive to move forward and deterrence from stalling. It is not clear what an effective incentive/deterrence is in collaborative cases.  Therefore, it is important that both parties in a collaborative case have equal (or at least, comparable) motivation to get the case done.

When you are involved in a family court matter, particularly a contested dispute in family court, reality and truth will serve you well.  Fictional reality and engineered truth will not serve you well.  The family court’s goal is to make findings based in reality and truth; consequently, the party seeking to engineer the truth, or establish a fictional reality, is likely to lose the battle.

The family court can best learn the facts about a case by hearing the observations and recommendations of a neutral professional.  The family court can best be misled about the reality of a case by basing its findings strictly on the mud slung by the parties at each other in affidavits filed with the court.  When one parent wants to bring down the other parent, by filing affidavits of family members and neighbors, or bringing family members and neighbors into court to testify on the record, they are probably trying to establish a fictional reality – a reality that would not bear out if a neutral professional were to render their own observations.  If what family members and neighbors have to say really is the truth, then those facts can and should be borne out by the work of a neutral professional.

If you don’t have the facts on your side, it can be an exhausting, expensive and fruitless task to try to pull one over on the court.  As an example, an abusive or chemically dependent parent, who pretends not to be, will likely be found out by the court.  On the flip side, if Parent A suffers from anxiety or depression, but Parent B brings in family members to testify that Parent A is in fact psychotic, Parent B is attempting to establish a fictional reality that should not prevail.  (Unfortunately, one who persists despite the fruitlessness creates protracted litigation that is costly to themselves, to the other party and to the family courts.)  If you do have the facts on your side, which often means not seeking unrealistic relief from the court, chances are the task of bringing out the truth will be less exhausting, less expensive and less fruitless.

The need for the family court’s reliance on neutral professionals is easy to understand when you consider what a small snapshot the court gets of a case’s facts during the finite windows of time the court hears testimony.  If the family court relies on a subjective, skewed version of truth (even sincerely presented by someone speaking under oath), the court’s ruling will not reflect reality.

Subject to the occasional, unfortunate exceptions, a good family court judge will cast aside fiction and manipulation, and rely on a good neutral professional to bear out the reality and the truth of the case.

In Minnesota, legal separations are not common, and are often confused with certain steps that are part of the divorce process.

While not technically correct, the term is often used to describe a couple whose divorce is not yet complete, such as a husband and wife who no longer live together, or a couple who are awaiting trial of their marriage dissolution in court.

The only real difference between an actual “legal separation” and a divorce is the breaking of the bonds of matrimony.  That is, a legal separation addresses custody of children, parenting schedules, asset division, debt responsibility, and other financial issues – just like a divorce – but the couple stays married.

The reason that legal separations are uncommon is mainly that they are useful in very limited circumstances.  There is no residency requirement for a legal separation, whereas a divorce requires at least one of the spouses to have been a resident of the State of Minnesota for at least 180 days.  So, a legal separation is useful if one wants relief in family court but has not lived in the state for very long.

Another circumstance in which legal separation may be appropriate is if both spouses are firmly convicted that, for religious reasons, divorce is simply not an option.  Legal separation allows the couple to get relief from the family court without terminating the marriage.

In most other situations (other than short-term residency or religious convictions), there is little reason to pursue a legal separation rather than a dissolution of the marriage.

One of the most difficult things to encounter in family court is an opposing party who is willing to lie. When my client is reeling about the other party’s dishonesty in court, and expressing the sincere desire to “fight fire with fire,” I often sound like my mother did when I was a kid: “Two wrongs don’t make a right.”  The fact is, as important as a family court case is in your life, it is not worth perjuring yourself.  While I have never been a first-hand witness to someone getting busted for perjury, the real issue is that you want to be able to sleep at night, and to be able to look at yourself in the mirror. If you lie in court, you will never be able to change history, and it could (should?) gnaw at you for years to come.

I estimate that family courts do the right thing about eighty percent (80%) of the time. This is purely anecdotal, without a hint of scientific research.  When courts get it wrong, sometimes it is because the court is misled by an incompetent family court professional (such as a custody neutral or accounting expert), or because the judge or referee is not thinking straight.  But most of the time, the cause of an unjust court ruling is the dishonesty or lack of forthrightness of one of the parties or their attorney. It is a terrible shame when it happens because the family court system works best when good things happen to someone who is genuine and operating the best of faith.