• A new legal approach is making divorce easier on kids. (Flickr)Source: Flickr
Avoiding court and committing to a collaborative approach to divorce could make things much easier for children, say legal experts and psychologists.
Kimberly Gillan

12 Aug 2016 - 9:54 AM  UPDATED 12 Aug 2016 - 9:54 AM

Amidst the stress and heartache that goes hand-in-hand with most divorces, many parents fret about how their children will cope. More than 40,000 Australian children are affected by divorce each year in Australia, and family law specialist Caroline Counsel says that the more peaceful the divorce process, the better kids fare.

Counsel is a collaborative practice practitioner, a relatively new legal process with the express aim of avoiding court. "The reason I get out of bed in the morning is to minimise harm to children and to maximise [the chance of] families remaining as intact as possible post-separation," she tells SBS Life. "The collaborative process is the only process that eliminates court entirely from the conversation."

While collaborative practice has been available in Australia for about 10 years, Counsel says that despite how much better most couples find the process than going through court, few people realise it's an option.

In the collaborative process, each partner hires their own collaborative lawyer and, alongside collaborative-trained psychologists and accountants, follow a set agenda to divide assets, make custody arrangements and navigate the new world they find themselves in. "Collaborative is about training the couple to have a different role with each other in the post-separation landscape," Counsel says. "Instead of teaching them skills about how to fight harder or better, we teach them to cooperatively parent and communicate better than they probably have done. [It's about] empowering couples to step up to the responsibility plate and focus on that which their children need, rather than, 'You did this, you failed to do that'."

After a divorce, you have got to get back to your life as quickly as possible.

Jim Peters*, 62, went through the collaborative process when he and his wife of 32 years split up in 2013, because neither of them wanted to waste money going to court and having needless arguments. "We wanted a united front for our [adult] kids so we could keep it as amicable as possible," Peters tells SBS Life. "We would both be appearing at weddings and big family events in the future and we wanted to keep the family together to some extent."

Peters and his ex-wife spent six months in the collaborative process and while Peters says there were disagreements and frustrations along the way, the collaborative process benefited them immensely. "I got the picture that neither of us was being overly greedy – we have quite a good relationship now," Peters says. "There was pressure on both sides to do a good deal that was appealing to both sides otherwise it would end up in court and you would all end up with less."

The collaborative process was also much quicker than traditional litigation. "After a divorce, you have got to get back to your life as quickly as possible," Peters says. "I can't see why everyone doesn't do it."

Collaborative practice is not for everybody though. "I keep litigation in my options to clients because sometimes you need the referee to blow the whistle and say, 'The behaviour exhibited by parent A is unacceptable and has placed the children at risk," Counsel says. The experience and skills of the collaborative team can also make a significant difference to outcomes.

The collaborative process

Collaborative negotiations can take anywhere from one month to 18 months, depending on the complexity of asset division and how quickly the couple can come to an agreement. It begins with each party defining what they are hoping to achieve and why they have chosen collaborative.  "When the going gets tough, the two lawyers work with each other to remind the couple why they chose this method and why they perceived it to be important to them," Counsel says.

There's a whole swag of issues that traditional lawyers say are 'not relevant'.

The couple have the opportunity to set the agenda and discuss any issues they have. "If they want to talk about how Rex the dog is going to move from one household to another, or how the nanny is going to move with the children from one household to another, we'll talk about that," Counsel explains. "There's a whole swag of issues that traditional lawyers say are 'not relevant', whereas in the collaborative matter, we say 'What issues do you want on your agenda?'"

Counsel says that the collaborative team also create a safe space for individuals to share their fears. "One of the biggest impasses is often fear by one party that they're going to be left high and dry and unable to support themselves," Counsel explains. "We address the fear and get the other person to recognise that this fear is real and cannot be abated simply by dividing the assets."

How parents can divorce better

1. Communicate compassionately

If you've decided to leave your marriage, then Counsel says the words you use from the get-go can make a serious difference. Instead of finger pointing and laying blame, she suggests choosing your words carefully, such as, "I'm lying to you every day I stay in our relationship and I believe I'm becoming toxic. I believe I'm now harming you and the great relationship we have with our kids. I'm so proud of the work we've done as parents, and I believe I'm undoing that and I shouldn't be anywhere near you or us as a couple at the moment".

2. Choose your team wisely

"There are many pathways to settlement – choose the pathway and your advocate wisely," Counsel says. "Partner up with somebody who actually knows how to look after you and knows how to take care of you in that situation."

3. Try be unemotional

When it comes to discussing parenting, child and adolescent psychologist Sally-Anne McCormack says parents need to be practical and solution-focused. "Make the children the priority and work on what's in their best interests," McCormack tells SBS Life. "You both must co-parent no matter what you think of each other."

4. Be practical

If you're disagreeing about things like which school to send your child to, McCormack suggests you write down your arguments so you can be clear about the reasons for your preference. "Write down the pros and cons so you can communicate clearly without being emotional about it," she says. "Don't let the child be the messenger either."

*Name has been changed.

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Image courtesy of Flickr/ Nokdie

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