Collaborative Divorce Articles

Others around the country are writing about Collaborative Law, here is just a sampling:


In my last post I explained a few of the benefits of effective communication in divorce and other family law matters. In a recent discussion with our pastor on this topic, he made a great point: If a couple could communicate effectively, then they likely would not need a divorce in the first place.

That one had me stumped for a bit.

But, as I thought about the conundrum, I realized that his statement assumes that effective communication is like your vertical leap; you either have it or you don’t. The truth is that effective communication is more like your jump-shot; anyone can develop it with dedication and practice. (I apologize for the basketball metaphors, but with UNC in the Final Four they are coming naturally).

In fact, even if a lack of effective communication contributed to the end of the marriage, it does not have to contribute to problems with co-parenting, the resolution of legal issues in divorce or the future relationship between the parties.

The natural question is how two people that have been communicating in a deficient manner for years suddenly learn to discuss issues in a productive manner. The answer, to a large extent, is that their attorneys can teach them the communication skills that they will need.

Many attorneys will not do this either due to a lack of their own communication skills or a belief that fighting is somehow more productive than cooperating. However, I strongly believe that one of the roles of an attorney in a family law dispute is to teach their client how to communicate effectively.

Obviously, this will involve some direct discussion of the best ways to communicate effectively. But, it also involves modeling effective communication for the client. If an attorney communicates with opposing counsel in a hostile, position based, threatening manner, then the client assumes that this is the most productive technique. In fact, it is not. No matter how contentious the case, threats, position based negotiations and aggressive postures rarely move the parties closer to a resolution, and almost always push the parties further from their goals. Thus, attorneys can head off a lot of wasted time, money and emotional fatigue by teaching clients how to effectively communicate.

So, the answer to our pastor’s conundrum is that past communication techniques do not have to continue. New, more effective techniques can be learned and used to resolve the legal issues in divorce. Attorneys can and should play a large role in that process.

The Benefits of Effective Communication in Divorce

In this article, I am picking back up on the discussion of the importance of communication in divorce matters. In the last post, I discussed the problems that poor communication causes and described the communication techniques that best promote effective communication. The next logical topic is how parties actually benefit from learning to communicate effectively.

The short answer is that effective communication saves time, money, energy and potentially a lifetime of conflict with your ex-spouse.

Most importantly, however, is that effective communication significantly raises the odds that the parties will reach an agreement at all. Many cases are forced to litigation when the parties’ lack of effective communication torpedoes settlement negotiations. People that want to avoid litigation need to learn to communicate with each other.

In addition, when people communicate effectively, they reach agreements faster. This is usually because tangential issues, emotional roadblocks and counter productive negotiations are avoided. This effect can lead to agreements that are reached in weeks or months as opposed to years.

When clients are dealing with their attorneys, there is one cardinal rule: Time is money. Thus, the reduction in the time it takes to reach an agreement provides significant savings for clients in legal fees. The money that clients save when they learn to communicate effectively can go to their retirement funds, monthly cash flow, rainy day fund or to their kids. As I tell clients: You can either put my kids through college, or you can put your kids through college. In fact, the number one thing that clients can do to reduce legal bills is to learn to communicate effectively with their spouse or ex-spouse.

One of the most underrated benefits to effectively communicating in a divorce matter is the reduction of emotional trauma to the parties and their families. Everyone has heard the horror stories about ugly divorces and their affect on children, relatives, friendships, careers, etc…People rarely realize that an ugly divorce takes a huge emotional toll on them until it is too late. No divorce is pleasant. But, every divorce need not be emotionally devastating. Effective communication can greatly reduce the emotional toll of divorce. This emotional toll is often the difference between people who bounce back after a divorce and go on to live their lives to the fullest, and the people who never seem to recover from a divorce.

Lastly, and perhaps most importantly, divorcing parents have an obligation to learn how to communicate effectively for the sake of their children. Co-parenting children requires effective communication for a happily married couple living in the same house. Communication becomes even more important for divorced parents trying to co-parent from different households. Raising children of any age requires dozens of decisions each day. Many of those require the input of both parents. If the parents cannot put aside emotional issues between themselves and communicate effectively, their children will suffer the consequences. I have seen children miss out on extracurricular and other great opportunities simply because the parents could not stop fighting long enough to discuss the issue.

Divorced parents often ignore the long term affects of ineffective communication on the lives of their children and their own lives. Parenting does not end when a child turns 18. Parents will be involved in graduations, birthdays, holidays, weddings, the birth of grandchildren, etc…More than likely, both parents will want to be involved in these events. That means that parents will be tied to each other, and will have to see each other for the rest of their lives . Or, they will force their children to choose which parent gets to participate in the events of their lives. This being the case, the only reasonable long term solution is for parents to learn to get along. The biggest part of that is learning to communicate effectively.

There are countless benefits to effective communication between divorcing or divorced parties; far too many to address here. They impact every part of a client’s life: financial, emotional and even physical health. More importantly, the ability to effectively communicate affects the lives of children, friends and family. Divorcing parties owe it to themselves and everybody that they care about to learn to communicate effectively when ending their marriage.

In my next post, I will address a great point made by my pastor recently: “If people could communicate effectively, they would not get divorced in the first place.”

Recent Interview with the North Carolina Advocates for Justice

Each month an Auto Torts Section member responds to a few questions regarding their practice and experience, growth and changes in the auto torts practice area. This month, the “Interrogatories” spotlight is focused on Randolph (Tre’) Morgan III with Nicholls & Crampton, P.A. I, on behalf of Auto Torts Section members, would like to send a huge thank you to Tre’ for his excellent article. Enjoy!

Randolph “Tre'” Morgan III graduated from the University of North Carolina at Chapel Hill with a Bachelor of Arts in Psychology. He received his juris doctorate from the University of North Carolina at Chapel Hill School of Law, where he served on the staff of the North Carolina Journal of International Law and Commercial Regulation for two years. He began his career working for several years in insurance defense. In 2004 he joined the plaintiff’s bar and practices at Nicholls & Crampton, P.A., 3700 Glenwood Avenue, Suite 500, Raleigh, North Carolina 27612
His contact information is: Telephone: (919) 781-1311, Fax: (919) 782-0465, Email:

1) What was your first trial and how did it go?

I tried my first case solo eight months out of law school. My insured was a convicted crack cocaine dealer with a slight credibility problem (and the plaintiff made sure the jury knew it). It was a minor impact soft tissue case with thorough chiropractic treatment. The adjuster handling the case was the unit manager, and a close personal friend of my senior partner. The carrier picked this case as their test case for “MIST” cases in Mecklenburg County. The adjuster attended the trial. During the lunch break, he grilled me on questions, strategy, etc…Fortunately we obtained a zero damages verdict from the jury. But, it took some days off of my life.

2) What did you learn most from mentoring lawyers when you started?

I learned a good deal about legal marketing from my first position. The insurance defense business is highly competitive, and marketing is the life blood of a lot of firms. I also gained invaluable courtroom experience. Most importantly, I learned that I was not afraid of the courtroom.

3) What would you share with a young lawyer now?

First, your area of practice will not be nearly as important to your career satisfaction as the people you practice with and against. Secondly, that a good legal assistant is worth his/her weight in gold, and should be treated accordingly. And lastly, don’t let anybody tell you that practicing law is not a business, or that it is just a business.

4) How has the insurance defense bar changed?

I left the insurance defense bar in 2004. At that time, the carriers were really tightening the reins on defense firm billing. There were already strict coding requirement for invoices and time entry. But, I spent hours each week on the phone with various carriers trying to justify time that was already being billed at very low hourly rates. Paralegals hired by the carriers slashed bills and then forced firms to appeal those decisions to get paid. Some carriers were also requiring firms to adopt flat rate billing structures for cases with certain litigation events triggering new payment levels. By the time I left, some carriers were refusing to pay for travel time, which is brutal for regional defense firms that have cases all over the state.

5) What is the state of the auto practice in North Carolina?

I think that there is too little respect between the two sides of the practice. I was constantly surprised by the personal enmity that adjusters and defense attorneys displayed towards plaintiffs and the plaintiffs’ bar. When I switched sides, I was equally surprised by the enmity of some members of the plaintiffs’ bar towards adjusters. What I’ve learned from being on both sides is that adjusters and attorneys on both sides are generally good people trying to do the best job that they can on a particular case.

6) Who was the first client who touched you and why?

One of my first clients was an elderly lady that was scared to death when she was sued. She was very sweet, but very intimidated by the entire process. When we resolved her case, she sent me a handwritten card saying that she thanked God that I had been sent to her to watch over her through the process. I still keep that card as a reminder that there are clients that truly appreciate my help.

Communication is Key in Divorce

I am going to take a slight detour from the series of posts on Collaborative Law to talk about the importance of communication skills for parties in divorce cases. Collaborative Law depends on the parties’ ability to learn and use effective communication skills to resolve their disputes. However, most clients severely underestimate the importance of their communication skills during and after the divorce process.

Effective communication, in my mind, requires three essential components: The ability to listen to the other party for content, instead of tone; the ability to formulate responses based on logic instead of emotion; and the ability to focus on interests instead of bargaining positions.

The vast majority of domestic clients find it very difficult to hear the content of the other party’s statements because they are offended by the tone. Correspondingly, many attorneys and parties fail to understand that the content of their message can easily be lost when an overly aggressive or combative tone is used. In order to effectively communicate and resolve domestic disputes, all parties must be able to sift through the tone to find the substance of the communication. They must also be mindful of the tone of their own communications. If the parties cannot get past the tone of the message or control the tone of their own message, then communication between the parties becomes at best unproductive, and at worst harmful.

One of the worst effects of poor tone in communications between parties in a domestic legal matter is that poor tone elicits emotional responses. Many lawyers and clients believe that you have to “fight fire with fire.” That is a fine strategy if your intent is to lengthen the process and spend more money in legal fees. However, if the actual goal is to resolve the conflict and move on with life, then the attorneys and clients have to learn to respond with logical and practical proposals and solutions, instead of with fire. The fact is that no one can win a battle of emotion. There is no prize for the “toughest” or angriest person. But, there are large rewards for the most logical and effective communicators.

The best way to structure communication to avoid the above pitfalls is to focus communication on interests instead of positions. The difference between interests and positions is subtle but important. Some of you may have read Getting to Yes in the course of your education or careers. Getting to Yes is essentially a manual for learning how to communicate based on interests instead of positions. The difference between positions and interests is the difference between saying “I want sole custody of the kids” and “I want to make sure that my relationship with the kids does not suffer because of the divorce.” “I want sole custody of the kids” is a position. “I want to make sure that my relationship with the kids does not suffer” is an interest. People adopt positions based on their interests. The problem is that the position may not be, and often is not, the best way to meet their interests. Taking positions in negotiations reduces the possible number of ways to resolve a problem; expressing interests keeps all solutions in play. The more clients and attorneys focus on positions, the more options are removed from the table. Eventually, as is common, the parties unwittingly destroy the middle ground, and litigation ensues.

In my next post, I will discuss the benefits of effective communication between the parties in a domestic legal dispute.

Collaborative Law – An Introduction

All to often, the parties involved in a divorce emerge from the legal process financially and emotionally devastated. Families and lives are destroyed in the process of ending a marriage. I have had cases where I honestly feared that the grief and stress from the process was going to kill my client.

Some of the negative effects of a divorce cannot be avoided. Grieving for a lost relationship is natural, and will be a part of any divorce. Some degree of financial loss is unavoidable because it costs more to run two households than it does to run one. Divorce is difficult for children of any age because of the unavoidable changes in their lives.

But, contrary to popular belief, divorce does not have to be nasty, ugly and combative. The parties do not have to “jump into the mud” or “take the low road” in order to effectively advocate for their interests and resolve the issues that arise in a divorce.

Over the last few decades, lawyers that had grown weary of seeing clients devastated by the legal process of ending marriages developed a new process for resolving the legal issues that arise in a divorce. That process was based on spouses working together, or collaboratively, to resolve the issues of property distribution, financial support, and the parenting and financial support of children. That process became known as Collaborative Law.

Through the next series of posts, I will describe the structure and process of Collaborative Law. I will also explain the tremendous benefits of the Collaborative Process. Hopefully, by the end of the series, I will have shed some light on this process so that more divorcing couples will explore this option before waging war on each other.

In my next post, I will provide an overview of the actual structure and mechanics of the collaborative process.

Custody – What information will a judge consider? Child Safety: ATV and Four Wheelers

In the last installment of this series, I will address the issue of child safety. In one of my recent custody trials, the father had allowed a child under the age of 3 to ride a four wheeler and a dirt bike. The mother argued that this behavior was very dangerous for the child and that the child was far too young to ride these types of vehicles. She further argued that allowing the child to ride these vehicles at such an early age demonstrated poor judgment and poor parenting on the father’s part.

The father countered by arguing that the child had only ridden these vehicles a few times each; that the child had always worn full safety gear; that the child had always been closely supervised while riding; that the father had held a kill switch while the child was riding; that the child only rode the vehicles in an enclosed yard; and that the child had never been hurt, or in danger of being hurt while riding the vehicles.

The judge decided that the child was too young for four wheelers and dirt bikes. The judge ordered that the child not be allowed to ride four wheelers or dirt bikes until the age of 10. My feeling was that the judge did think that allowing such a young child to ride those vehicles was poor judgment, and did place the child at risk of injury. While the precautions taken by the father may have helped, the judge seemed to ultimately decide that no precautions were sufficient to eliminate the risk.

The lesson here is twofold: First, that a judge may have a very different view of what is “safe” and “acceptable” for a child than a parent. The father in this case never saw a problem with allowing his child to ride these vehicles. The judge obviously felt differently. Perhaps the judge never rode four wheelers and dirt bikes growing up, whereas these vehicles were a part of everyday life for the father’s family.

The second lesson is broader: Allowing a judge to literally sit in judgment over you and your parenting of your child is risky. A judge may have been raised in a totally different environment than you and your child. What seems perfectly natural to you may seem totally abnormal to a judge. What seems perfectly safe to you may seem highly dangerous to a judge. Taking your custody case to court opens both parents up to scrutiny by someone who does not know you, your background, your family, your child or the other parent. For this reason, many attorneys recommend trying to negotiate a custody agreement before taking the first opportunity to go to court.

In the next post, I will provide an introduction to Collaborative Law, a relatively new and highly beneficial process for resolving divorce, property division, custody and financial support issues.


Child Custody – What information will a judge consider? Mental Illness.

As the third installment of this series on child custody, I’ll address how the judge in a recent case addressed the fact that one of the parents had been diagnosed with Bipolar Disorder.

In this case, the parent had been treated and medicated as far back as their early teens and even hospitalized. But, that medication and treatment gradually ended as symptoms improved. However, as the parent entered their early 20’s the symptoms began to return, although the parent did not recognize the symptoms for some time.

After the child was born, and while the child was still young, the parent experienced an episode in which suicide was contemplated, or at least the parent’s behavior made it appear as though suicide was a risk.

Immediately after that episode the parent sought treatment and began taking medication for the Bipolar Disorder. Since beginning the medication a few years prior to the trial, the parent had been very stable, with no episodes or erratic behavior.

The opposing parent made a point of focusing on this parent’s mental illness at trial. The diagnosed parent countered by pointing out the self-motivated pursuit of treatment and their stability since resuming medication. There was no evidence that the parent’s illness had any negative impact on the child. Further, because there was a genetic link to the parent’s mental illness, there was some concern that the child might one day also be diagnosed with a mental illness. An argument was made that the diagnosed parent’s family network in his hometown would be better able to support the child if mental illness became an issue down the road, because the family had experience with mental illness in the family.

The judge awarded custody to the non-diagnosed parent. However, the judge essentially made the mental illness a non-factor. The diagnosed parent was ordered to continue treatment and medication as directed by his physician (the parent would have done this without an order). The judge made no mention of the mental illness as having an impact on the child or the custody decision. Further, the diagnosed parent was given very liberal visitation, even though they had relocated to a different state. In fact, it was my feeling that the mental illness played no part in the judge’s decision.

The lesson in this case is that a parent that has been diagnosed with a mental illness does not have to fear being prejudiced by their mental illness in a custody case. A parent diagnosed with a mental illness can limit, or maybe even eliminate the affect of a mental illness on a custody determination by showing the court that they have established a stable course of treatment, that the treatment has stabilized their behavior, that the mental illness has no affect on the child and that they intend to maintain their course of treatment.

In the next post, I will address an issue that is fairly common in North Carolina: The use of ATV’s and motorcycles by children.


Child Custody – What information will a judge consider? Marijuana Use.

In my last post in this series, I described how one judge dealt with the relocation of one parent in a child custody trial. In this post in the same series, I’ll discuss how that judge treated marijuana use by both parents.

In this case, one parent had used marijuana one time within the last three years, and during the child’s life. The other parent had used marijuana in high school (approximately 8 years earlier). There was some evidence that both may have used marijuana more recently, but nothing conclusive. Neither parent has been arrested or charged with a drug offense, and there was no evidence that either party was a regular user.

The judge did not seem particularly upset by either parent’s marijuana usage. The judge did specifically order both parties to refrain from using illegal drugs in the future. But, the judge did not make drug assessments or drug testing a part of the order.

This result suggests that sporadic or isolated marijuana use by a parent may not be a huge factor in custody determinations. If the use is infrequent and the child is not present, then marijuana usage may not severely impair a parent’s efforts to obtain custody or visitation of a child.

However, regular or frequent use of marijuana is likely to be a factor in custody determinations. There is no definitive way of knowing what level of marijuana use will trigger a serious concern for any particular judge. So, the safest course is always to refrain from any marijuana use so that there is no issue in the custody action. And, it is safe to assume that “harder” drug use will create a serious problem for parents seeking custody or visitation of a child.

Lesson: I am frequently asked by clients whether their use of marijuana will prevent them from gaining visitation or custody of their children. The outcome in this particular case indicates that the less frequent the use, the better, and the longer ago the use, the better. But, a one time use or very infrequent use will not necessarily prevent a parent from gaining visitation or custody of a child.


Child Custody – What information will a judge consider?

One of the most common questions that I get asked by clients and other lawyers in child custody matters is “What do you think a judge would think about ‘x’?”

In an effort to show you how judges feel about particular issues, I will let you know about cases that I have dealt with, and how particular issues were treated by the judge in that case. Keep in mind that all judges are different and each judge brings his or her own background and perspective to every case.

That being said, there were four interesting issues in one of my recent custody trials. First, my client was relocating to his hometown out of state, and wanted to take the child. Secondly, both parents had used marijuana in the past. Thirdly, one of the parents has been diagnosed with a mental illness. Lastly, one of the parents allowed the child to ride a 4 wheeler and a motorcycle at the age of 2.

I will address each of those issues, the outcomes and the lesson to be learned in my next posts. First, I’ll address the relocation issue.

Relocation issue: In this case, the judge did not allow the relocating parent to take the child with them. The new location offered a strong family support network and the child had spent months of his life in the parent’s home town with grandparents. Child care would have been provided by grandparents in the new location. But, the judge seemed to adopt the “if it ain’t broke, don’t fix it” approach. Even though the parent in North Carolina was relying solely on neighbors and friends for child care, there was some evidence that the child was doing well in North Carolina. So, even though the relocation provided more family support, the judge seemed to favor the status quo.

: The law requires the judge to do whatever is in the “best interests” of the child in custody cases. It is difficult to convince a judge to allow one parent to move away with the child. It is not impossible, but you may need evidence that the child’s current location is bad for the child in some way, and that the new location will help solve those problems. Unless there is a big difference between the proposed location and the current location, convincing a judge to relocate the child is an uphill battle. The lesson for me as an attorney is that judges will frequently apply a “if it ain’t broke, don’t fix it” approach in these cases, even if a relocation can provide a better situation for the child.

Next week I will address the judge’s handling of the marijuana use by each parent. Until then, have a Happy New Year!