Tuesday, September 30, 2020

A moving personal story from a New Jersey collaborative lawyer

A Missed Opportunity

I have noted before that my parents divorced just six years ago. What I did not mention was that shortly after Mom and Pop’s traditional divorce, she was clinically diagnosed with Alzheimer’s disease. During the divorce, I had sensed something was wrong with Mom and so did Pop, but Mom had gone to an attorney and started the divorce process premised upon her belief that that he was unfaithful, stealing from her, etc. There was nothing we could do, because their divorce was in the “system” and pretty much out of control. The final fees associated with their divorce action exceeded $40,000.00. There were no motions or trial expenses added to the final sum for this uncontested divorce.

Unfortunately, our legal system is not well equipped to deal with parties suffering from mental health issues. So long as the wife or husband can pass himself or herself off as sane, the divorce judgment goes through. Really, all families can hope is that an attorney will recognize that their client is not mentally fit to understand the terms of a property settlement agreement or the legal process, and seek a guardianship for the client. We attorneys, however, are not trained in mental health, so this is a flawed safety net.

In my professional experience, I have witnessed or heard of mental health issues leading to divorce, or that it played some part of the marriage’s break down, as well as being caused by the stress of a dissolution. In New Jersey last year, the courts handled 30,000 divorces. Even if only a small portion of these matters were mental health-related, this is a serious problem, which must be addressed.

What if Collaborative Law had been widely known six years ago and opted for by my parents? What if early in the collaborative process, one of the collaborative team’s mental health professionals (MHP), had detected a clinical issue with Mom and referred her out for a neurological examination? Once she was clinically diagnosed, she could have received the necessary medications, and then, perhaps, their 44-year marriage could have saved.

Although the protocols for the early involvement of mental health professionals in the collaborative process are still uncertain, one benefit of the collaborative process is that now attorneys are working closely with mental health professionals and learning from them. By comparison, in a traditional litigation, the relationship between the attorney and the MHP is very different. In this scenario, the MHP is employed by one party, or appointed by the Court, to conduct an evaluation, issue a report, and then defend their positions to the Court and the attorneys. To say the least, this is not the best way in which to employ the MHP’s time and expertise: nor the attorneys’ or the judge’s. What benefit is there in this traditional process to the couple or their children?

Many collaborative law groups, including mine, the Central Jersey Collaborative Law Group, are inter-disciplinarian. Meaning, our fellow collaborative law colleague is just as likely to be a MHP as an attorney or financial professional. Working together, and combining our talents and experience, we are able to evaluate the needs of each divorcing couple and their childen, if the need arises, so that all the issues may be addressed and solved, rather than just the economic needs, which is the principal focus of the courts.

There is a happy ending to Mom and Pop’s story. After Mom was diagnosed, she eventually agreed to move to the Sunrise Assisted Living Facility in Basking Ridge, New Jersey, where she could be medicated properly and monitored. Her last five years were good ones despite the advance of the disease. She and Pop started to date and fell in love again. For their grandchildren, and us children this was a wonderful end to their relationship, and admittedly, unusual. Pop was with Mom every day when she started her rapid decline in July. Her last audible words him the day before she passed was “thank you.”

Thanks for reading.

Kevin Kilcommons