by Sarah Rutledge Fischer
In our culture, divorce is assumed to be a battlefield. Two people who can no longer live their lives as one turn to the courts as an arena for the destruction of their union and all the carnage that will entail. Litigation, which presumes antagonism between the parties and usually amplifies it, is slow, expensive, and a matter of public record. By the end, after a brutal process that, on average, takes a full year and costs tens of thousands of dollars, both parties are left to pick through the rubble of their lives and move forward.
For LGBTQ+ families, the experience can be even worse. Our legal system is rife with both internalized bias and outright homophobia. In cases in which one member of a hetero-presenting marriage has come out as LGBTQ+, aggressive attorneys routinely weaponize that person’s sexuality. In the dissolution of a same-gender marriage, the effect of preconceived notions about gender, which frequently influence custody or spousal support decisions, can be unpredictable, leaving attorneys unable to offer their clients clear guidance.
And that doesn’t even account for the harm suffered by the children.
“Nobody has ever called me and said, I’m coming to see you. I want to get a divorce, and I also want to make sure that my children suffer terrible depression and anxiety, feelings of abandonment, and have difficulties in their own adult relationships one day,” says Elizabeth Yarbrough, a Tennessee family law attorney and family mediator with over twenty years’ experience handling complex divorce and family law matters.
Yarbrough, whose passion for resolving family conflict began in childhood, spent years frustrated and disillusioned with the extent that her work as a family law attorney often left her client’s lives in shambles. But in 2007, Yarbrough was invited to attend a conference titled “Lawyers as Peacemakers, Lawyers as Problem Solvers.” That 3-day conference on holistic approaches to the practice of law, the brainchild of Memphis attorney Maureen T. Holland, created the momentum for a new way for Yarbrough and others to practice family law in Memphis—a momentum that became the Memphis Collaborative Alliance.
The Memphis Collaborative Alliance (MCA) is a team of legal, financial, family and judicial/mediation professionals who promote the use of collaborative practice to resolve family disputes. In the context of divorce, the collaborative process is an alternative to litigation that provides a pathway for dissolving the legal bonds of marriage with dignity and privacy in a way that saves time, money, emotional distress, and relationships.
In a collaborative case under the MCA, each party is represented by an MCA attorney, and all members of the team—clients, attorneys, and consulting professionals— sign a Participation Agreement, committing to resolve their issues without litigation. Though each case certainly has its own set of unique circumstances that determines how the parties meet throughout the process, generally issues are explored and resolved collaboratively by the parties and their attorneys together at the table. Teams may also include a Financial Neutral who assists both parties in collecting and understanding their financial information, prepares budgets and net worth statements, and assists in developing creative ways to divide financial resources and assets. In situations where there are children or other dependents involved, the team will include a Neutral Family Professional— an experienced psychologist, therapist, licensed clinical social worker, or family counselor—who can help neutralize conflict and keeps families focused on their most important needs and interests rather than their ongoing conflict.
The possibility of resolving a divorce cooperatively seems like an impossible idea to many of the clients who come to Yarbrough and the other attorneys in the Alliance. Frequently a client is already so deeply in conflict that trusting their spouse to come to the table in good faith seems impossible. But the MCA attorneys and professionals have seen the process work over and over— even in the most fraught cases, and they are convinced that a collaborative process
leaves everyone more whole on the other side.
To help her clients understand, Yarbrough compares divorce to an appendectomy. No one wants to go through one, and most people only arrive to the process in quite a bit of pain. But litigating a divorce, she thinks, is like an old school appendectomy—where a surgeon cuts her patient from sternum to groin and pulls all of the internal organs out on the table, just to reach and excise the problem area. A collaborative process is more like a laparoscopic appendectomy; it is more modern, less invasive, and more likely to lead to an easy recovery.
Not only is the collaborative process less invasive, it is also generally less expensive. There’s an old joke among divorce attorneys: A client asks, “How much is this going to cost me?” The attorney says, “How much have you got?” It’s dark humor, but there is truth to the joke—not because attorneys are running up fees, but because the combative nature of litigation often means that a person who can spend more will. And that means devastating family resources, leaving both parties without solid footing once the smoke has cleared. According to Yarbrough, a complex divorce—one that could cost $50-$100,000 if litigated— could be resolved for a fraction of that cost through collaborative law.
“When you go to divorce court and you’ve done motion hearings and mediations and gone through discovery and spent everything that’s available to spend,” says Yarbrough, “nobody is going come out of that winning— except for maybe the lawyers.”
Yarbrough’s collaborative divorce cases turn out differently.
“I don’t want to tell you that we end these cases in a drum circle singing,” she says, “but everybody does leave with respect. And we treat one another warmly at the end. We try to send people off into the world in good shape to manage their family relationships after.”
The burden of a divorce attorney is to know that no one ever wants to be in their office. No one comes to see any of the attorneys at the MCA because things in their marriage have been going well. But the MCA Professionals see it as an honor to help guide their clients through a difficult process with dignity and kindness. They see it as their greatest responsibility to help forge the functional family structure that emerges on the other side.
“It’s almost as if the family is your second client—like the family that you’re creating, that comes out on the other side of this, is a client to everyone.”
To learn more about the Memphis Collaborative Alliance, visit their website at https://memphiscollaborative.com.