Can I participate in Collaborative Divorce if I am a victim of domestic violence?

By Nanette McCarthy

Principal Partner – Griffin McCarthy & Rice LLP

If you are considering divorce or have already started in the divorce process, you probably know the COVID-19 pandemic virus has affected the court system. While the courts are doing their best to adjust, many cases previously set for status, hearing, or trial have been continued for weeks into the future. Those not continued to a later date may be dealt with in unfamiliar way, for example, using remote conferencing or with a judge reviewing pleadings only and taking the matter “under advisement”. Understanding the courts are necessarily not operating at full capacity, you may be among the individuals looking for alternatives. Picking up the slack are many professionals who are adept at or familiar with reaching out-of-court solutions to divorce or related matters. One out-of-court process is called the Collaborative Divorce (or Collaborative process). Not only is “social distancing” during the Collaborative process remarkably easy to accomplish, the Collaborative process may be far more favorable to court in other respects as well. If you are considering or in the process of divorce and have experienced some variation of abuse in your relationship, you may be desperate for relief from your marriage. Under these circumstances, can you/should you consider Collaborative Divorce?

It depends.

First be Informed. A basic element of collaborative practice is informed consent by all participants in the process. The “informed” part is easy enough to cover. There are lots of resources to help you objectively understand the collaborative process. The collaborative process is distinguished from litigation or other dispute resolution methods by (a) a formal participation agreement which (b) strives for solutions by honest exchange of information, and (c) requires the collaborative team to disqualify themselves should you or your spouse choose to go the route of litigation.

Free Will and Consent. Domestic violence covers a range of abuse and can affect an individual’s ability to freely consent. Therefore, “consent” to the process must be carefully reviewed and monitored. If you can, with free will and consent, engage in negotiations and decision-making, you may be able to participate in the Collaborative process.

The Question of Free Will and Consent. A prospective Collaborative attorney should ask questions about whether there is a history of a coercion or violence before you sign a participation agreement. If domestic violence has occurred, it can be hard to unveil whether you have chosen the Collaborative process as a result of coercion and control by the other party or whether it is a product of your own free will. Not sure what I mean? See if you can find yourself amongst these three scenarios:
A. In a heated argument, your spouse pushed you into a wall and raised his hand near your face. There had been no previous violence or history of abusive behavior between you and your spouse.

B. Your spouse becomes angry for something that would not cause you anger and pushes you into a wall. There had been no previous violence, but your spouse limits your ability to leave the home and restricts your access to money. You must play nice to get extras for the kids (which are really basics and not extras) and you are often walking on eggshells.

C. Your spouse pushes you into a wall and your stomach drops and you are terrified. You previously sought medical attention as a result of your spouse’s violence and/or your spouse previously threatened you or your children with violence if you did not comply with your spouse’s wishes.
In each of these scenarios, one partner’s ability to coerce and control the other may greatly affect your free will and the meaning of violence. For example, the inflicting partner in scenario A may have little to no coercive influence or control on his partner while the inflicting partner in scenario B or C may be greatly able to manipulate and control his partner. It is important to assess where you stand in your relationship. That said, it is understandably hard when your judgment is constantly being questioned to know whether your situation allows for collaborative process. It is best to get help in making the assessment before deciding to move forward with the collaborative process.

Constantly Monitor and Assess. Your prospective Collaborative attorney should talk with you about the existence, severity, frequency, and nature of any violence. Make sure your collaborative attorney carefully explains to you the alternatives to collaborative process. Once you make a decision to start the Collaborative process, understand your safety is of paramount importance and remind yourself it is ok to change course if necessary. Detaching in this way can help give you the distance you need to have free will. If you and your attorney agree you possess the ability to safely begin the collaborative process, the inquiry should not end. Once engaged in the process you and your attorney should watch for cues such as whether you (or your attorney) feel manipulated, threatened, demeaned, or charmed (yes, charmed). If you sense this happening, you should ask to caucus with your attorney. To be safe, you and your attorney should agree to take regular breaks so you may confidently disclose how you are feeling. Your attorney should also discuss potential collaborative team members, such as a mental health professional with domestic violence experience, to provide you support during the process. Also, talk with your attorney about a safety plan in the event circumstances change.

Balancing Realities. The Collaborative process is a consensual non-litigation process in which parties in conflict and their chosen professionals enter into a formal agreement to decide all aspects of their divorce. It is a team-based approach which can be rendered dysfunctional by the effects of domestic violence. If you are a victim of domestic violence, you may still be qualified to engage in the collaborative process, but before you do, discuss with your attorney the realities of your situation. And then, constantly monitor.

Nanette McCarthy

Principal Partner – Griffin McCarthy & Rice LLP


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