Chicago family attorney, Michael Ian Bender contributed a byline piece to the Chicago Daily Law Bulletin about the implications for conscious uncoupling, the latest term in legal separation and divorce.
The introduction of the term “conscious uncoupling” to our vernacular earlier this year (thanks to actress Gwyneth Paltrow and her husband, musician Chris Martin) coincides with a growing number of family law attorneys revisiting a legal approach to divorce that was introduced years ago. The name isn’t quite as sexy as “conscious uncoupling,” but the collaborative approach has been around for almost 25 years in the United States.
Founded in 1990 by Minnesota attorney Stuart Webb, the movement is legitimate in several states where many lawyers have been trained in this type of legal technique. According to attorney Heather T. Whiting at Drummond & Drummond LLP in Portland, Maine, collaborative law is a “process that gives parties and their lawyers a way to divorce through discussion of the issues and interest-based negotiation” without the need for courtroom litigation.
Whereas it has been common for divorcing couples without a prenuptial agreement to engage in highly contentious litigation, this new concept of purposeful, amicable legal separation can elevate an established, but not well-known, legal practice. With conscious uncoupling (or the collaborative approach to divorce, if you prefer), there are two adults who genuinely want the best for each other despite the relationship impasse. From a divorce attorney’s standpoint, the question now becomes this: What are the legal implications for this potential paradigm shift in separation and divorce?
Earlier this year, an idea was proposed in Great Britain by Sir James Munby, president of the Family Division of the High Court of Justice in England and Wales. He suggested that rather than divorce being determined in the court system, it can and should be resolved by a civil bureaucratic office but only in cases when there are no children and there is no disagreement about the need for divorce between the parties.
His rationale is this: If two adults (with no minor children for which to provide or consider) consent to divorce without dispute, why should the process be adjudicated? While this idea may be too radical too soon, it is definitely something worth considering in order to ease the caseload on the current court system, in addition to minimizing costs for divorcing parties.
If Munby’s proposal is too far left, there are other collaborative approach implications to contemplate.
Conscious uncoupling certainly makes a case for mediation. Mediation is a process that allows divorcing couples to be fair and reason mediation process works well in both amicable and contentious situations. It drives the parties to being respectful to each other overall. With attorneys conducting financial discovery and attending the mediation session, the mediation process allows the legal divorce to happen sooner, allowing couples to move on with their lives.
And when divorcing couples move on emotionally, but are still very much present in each other’s lives, it is usually because there are children involved. As we have seen in the case of Paltrow and Martin, conscious uncoupling has obvious beneficial implications for divorcing couples with children.
In regard to visitation or parenting time, for example, able with their requests and expectations, and to work out differences expeditiously. The conscious uncoupling makes the child’s welfare one of the highest priorities so most issues between the parents can be quickly resolved.
The same approach and attitude apply to resolving the issues of child support and custody.
Despite that fact that both parents want what is best for their child, they need to reconcile this interest with their own individual ones. Resolving the issue of custody, for example, is potentially one of the most contentious and expensive, depending on the length and process (formal mediation, in-court hearings, etc.) of legal negotiations between parties.
Through conscious uncoupling, reaching child-related agreements in the early stages of legal separation and divorce works out better for everyone’s mental health. They will come to realize that “custody” is a label on which people need not focus. The amount of quality time with the children is generally the real goal.
The caveat for all of these issues being more readily resolved is that both parties must choose conscious uncoupling. The bonus for attorneys is that clients are willing participants in a process that does not have to be devastating or highly contentious.
With conscious uncoupling, clients are now in a position to set the standard for divorce, which can be a new reality for couples and attorneys, too.
BY MICHAEL IAN BENDER
With more than 20 years of legal experience, former Cook County Circuit Court judge and now practicing family law attorney Michael Ian Bender concentrates in family law including divorce, custody, and parentage disputes; mediation; and advocating for children. Bender is an advocate for children’s rights and is qualified to serve as child representative, guardian ad litem and attorney-for-the-child in Cook County. Bender also is qualified to mediate both financial and nonfinancial domestic relations matters. Bender was circuit court judge from 2008 through 2013. He presided over thousands of cases in the Domestic Relations Division, Parentage and Child Support Section.