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Dealing with Adultery and Fault in the Collaborative Process

The Collaborative Process can offer people an ideal way to handle fault issues so that deep wounds do not go unhealed.  One of the non-monetary benefits of a Collaborative Divorce is the opportunity it provides to work through difficult emotional issues privately and in a way conducive to better co-parenting and communication in the long term.

In a traditional divorce process, litigants often receive conflicting and incorrect information on the use of fault for purposes of garnering a disproportionate split of the marital estate.  Many people have a false sense of security going into a divorce because they have what they believe to be a fault “trump card.”  People who retain litigious attorneys will likely not be explained the reality that, all things going in their favor, they may spend more in attorney fees to push the fault issue to trial to receive that lopsided split than what the net result of the disproportionate split even is.  In addition, many parents are surprised in litigation to learn that fault may not be as relevant to custody and parenting time as what they might feel it should be.

Certainly, whenever fault such as adultery is alleged in a divorce case, the emotional dynamics of the case are particularly sensitive.  In litigation, proof of an affair is used as a weapon against which a defense must be lodged, and nothing is done about the underlying consequences and emotions of the affair that will still be there after the battle concludes.  In the Collaborative Process, these emotions are tackled much more head-on because if this issue creates an impasse in Collaborative discussions, it must be dealt with in order to avoid the case falling out of Process.  Instead of two attorneys on opposite sides of a case telling their clients conflicting information about how the fault issue may play out, the Collaborative Process affords the clients an opportunity to meet with a Divorce Coach and hopefully develop a level of communication, trust and co-parenting in spite of the wounds inflicted during the marriage.  The Collaborative Process also assures clients that they will receive the same legal explanation about how fault plays into the case so that neither party is advancing on inaccurate assumptions and unrealistic expectations.  Consistent with the adage “You never get ahead by getting even”—the Collaborative Divorce Process reminds clients that seeking out revenge via the court system results in everyone losing, especially children.

 
By Jennifer L. Johnsen
Collaborative Lawyer