This story is about 8 pages long, but it is hard to convey the events of a year of divorce struggles in less than that and get the full flavor of what happened...
To some extent this narrative must necessarily be based on speculation, for I had no access to communications between my wife and her attorney, or to communications between the two attorneys(update: After retrieving my file from my attorney, further insight from lawyer-lawyer emails was obtained. See Postscript below.).
I recognize as well that such speculations and suspicions are common in any divorce. However, it is one of the claims of the Collaborative Divorce proponents that the process is more “transparent”, open, and “reasoned” than conventional divorce. Thus, even assuming that some or all of my speculations are inaccurate, I believe this narrative highlights that the Collaborative Process does not always work as advertised, and the plot speaks for itself in how it worked for me. Where I feel that the collaborative process was violated, hyper-links will show which portion of the contracts we signed are involved. An extensive email record backs up much of this plot.
I have attached copies of certain underlying documents, redacted in certain places to protect the identities of my wife and myself. -Author
Postscript: If you've read the story before, but would like to check out some new updates after the case settled, see the new Postscript Section at the bottom... (October 2007)
Check out a review of Pauline Tesler's book, "Collaborative Divorce" added November 2007 too.
My story begins at the end of a 5-year marriage and a 12-year relationship. There were warning signs for my marriage’s fate. My wife was quite a bit younger than me and had never lived on her own prior to our marriage. We executed a pre-marital agreement, but she was very unhappy about it, not really understanding why it was important to me. But this story is about divorce, not marriage. So the beginning is the end of that story, and I purchased several books about divorce online to try to learn what I was in for. My wife and I were still on good terms despite both feeling that the end was appropriate and having doubts at the same time. But we were determined not to have an “ugly” divorce.
The first key milestone is my wife’s finding her way, through some unknown recommendation to the “high priestess” (see links page) of collaborative law (CL) divorce Pauline Tesler of Tesler, Sandmann and Fishman (www.lawtsf.com) in Mill Valley and San Francisco, California. Tesler gave my wife a large stack of information, mainly reprints of articles she had written on CL, and my wife dutifully copied it all for me. Included in the stack was Tesler’s “Handbook for Clients” which proved useful later as well. Upon reading the information, the approach of CL seemed reasonable to both myself and my wife, and my wife seemed very intent on going that route due to the negative incentives for “not finishing” where the couple has to basically start over. She was very much in a hurry to get free of the marriage and seeing another man. So, a non-confrontational, economical, and rapid divorce suited her needs perfectly. The marketing of Collaborative Law to her was also perfect and appealing. I went along feeling that, if the divorce was inevitable, and she wanted this non-court route, it would be in my interests too.
Meanwhile, I was advised of my chances in court by several litigating attorneys and discovered to my distress, that there was a loophole in the California law that could potentially allow my wife to subvert the pre-nup agreement for the purposes of getting large amounts of alimony during a “temporary” or "emergency" period of time that could be anywhere from 3 –12 months. I was told that the temporary support hearing in our county consisted of only a 20 minute session with a judge that was “99% certain” to use a dissomaster calculation (computer program for determining support –child and spousal – from information about a couple’s finances, mainly from disclosures and tax returns) for the temporary support, which in effect would simply split the total income into two equal parts during the period before the permanent support hearing, for the purpose of supporting the wife (or whoever does not have much income) until the trial. The problem was that our pre-nup shielded 85% of my income from previous businesses and therefore splitting up the income into two equal pieces was a subversion of the agreement we had made before being married. I was repeatedly warned that I had to avoid court or suffer this fate. Further, if the large temporary support is granted, it is only the time that temporary support is paid that is pro-rated later, not the amount of money, to the payer in the permanent support hearing! So, the other party can bleed the wealthy party of assets during the temporary period, and drag it out as long as possible such that they potentially get more cash than a judge would ever grant them in the regular support hearing (i.e. the “marital standard”)! Talk about justice… It was unclear to me whether my wife would play along with the lie required for this loophole (that she needed ½ my income to simply survive) since she stated she “was not after my money” before leaving.
Non-court solutions exist outside of Collaborative Law Divorce, but without the benefit of any objective information on CL, it seemed logical to me. Sites more critical of Collaborative Law Divorce did not appear until after I had signed the CL contract and Principles document. (by about 4 months). Given my wife’s desire to finish quickly and avoid court, CL seemed OK. I knew she would never agree to mediation due to her intimidation of negotiating directly with me and without a lawyer of her own. Arbitration or a private judge were other options, but in my emotional state, I didn’t pursue them. It is doubtful my wife would have agreed, given the leverage of the temporary support loophole, which I speculate she was advised about on first meeting a lawyer. Whether she was seeking money or not, the leverage could speed the process.
My first job was finding a Collaborative Law Divorce attorney. I interviewed one of the lawyers at a very well respected litigation law firm that I was consulting, but he had only done 5 cases and mainly concentrated on litigation. I felt that was a disadvantage at the time (later I would change my mind) and foolishly picked another lawyer, Eugene Seltzer (a.k.a. Gene Seltzer) of Duane and Seltzer LLP, Berkeley, California, (www.duane-seltzer.com) because he was on the “Collaborative Law Group” list of attorneys (about 12) which includes Tesler and that was included in my wife’s packet of information, thinking at the time that his working with Tesler in the past would be an advantage in the long run.
Telser’s fees were $450/hr and Selter’s fees were $350/hr for a total $800/hr for our divorce work. Neither attorney once mentioned pooling fees or fee parity so that the burden would be equal to both of us. While this is not shown in the Principles and Guidelines (PG) given to us as printed materials that we signed, it appears in many other versions of the guidelines (see links) and is supposedly a cornerstone of CL divorce.
We separated at end of June 2006 and we were able to schedule the first and second meetings for Aug 3 and Aug 21 respectively. First meeting was only the explanation of the “process” and the collaborative law contract. We were told “rules of engagement” about letting the other person finish speaking, the availability of “coaches” if we felt we could not talk to one another, and also that this was very different than a normal divorce or business negotiation. We were told that, unlike some negotiations, we had to take a reasoned approach (PG S6) to our offers and not ask for the moon, hoping to get half as much, which would a secretly acceptable amount. We were told that, since my wife and I had already split up the community property before seeing a lawyer, and we were abiding by the pre-nup, that our divorce could be completed in 3-4 meetings and probably be the “fastest” one that they (the lawyers) had experienced. First meeting cost: approximately $2,000 for two hours plus commuting.
The second meeting was consumed by laboriously going over each of our financial disclosures, something that could have been done at home with follow-up questions. Wife’s disclosure contained detailed spreadsheet of her expenses necessary for computing spousal support. This is the point at which the character of the divorce changed permanently. After converting to using an home accounting program on computer in 2002, I had very detailed records of what our finances were during the marriage, but my wife’s expenses appeared to represent a shopping list of some sort, containing every item under the sun, including going back to school, high costs for clothing(2x previous), travel, massage, parking(3 paid parking spots), parking tickets(!), groceries (2x the amount we spent as a couple) and even paying taxes on a property owned by her family. The total was approximately 3x what I had calculated was her portion of expenditures during the marriage, even when factoring in the rent on her new apartment and allowing her 2/3 of the money spent while we were married. Additionally, her income was reported at 60% of what she had been earning for the last 3 years (she worked at a bank and worked the entire length of the marriage) (PG-good faith). I should mention that my wife’s income was both commission based and a base salary up until just before we separated. Given that her income was commission based, fluctuations were to be expected. But disclosures (some of her pay stubs) showed a very low income and it was not until 2007 when I received a copy of her W-2 statement, that I realized that her income only had dropped 2.5% during 2006. I still have no explanation for this.
Upon raising objection, Tesler immediately brought up the pre-nup as something that could be problematic, saying that it was signed just before the wedding. I later found out that the law regarding such timing was not on the books until the year following our marriage and there was nothing remotely wrong with the way the pre-nup was signed. It was re-enforced by a second signature a month after the marriage when my wife and I had transmuted some of our separate property into community property. The threat of challenging the pre-nup had never been raised by my wife before and my wife had declared she was “not after my money” before leaving. (PG S6) But threat was used from that point on to force a settlement, and in violation of the basic guidelines given to us at the start of the CL “process”. Cost of the second meeting: approximately $2,000 for two hours plus commuting.
Third meeting was held on Sept 1, 2006 to go over the income/expense figures. At the start of the meeting the lawyers sat quietly while we disagreed on the premise for my wife’s figures, me standing by my computer printout of marital spending and my wife using her new expense disclosure. Given expenses like her returning to school and other items that seemed to be unrelated to our marriage standard of living, to me it felt that she had been advised to put anything she wanted on this list, and during a break when we were alone, I asked her regarding the total number “What is this?” to which she replied that it “is only a number, not the final number” indicating that she also did not believe the expenses were all justified, but rather a negotiating position (PG S6). I should mention that I felt great relief at the conclusion of the previous meeting when we agreed as a group to approach spousal support from a “need-based” view versus an “entitlement-based” view as recommended by Seltzer, which I interpreted to mean what my wife needed based on the past versus what she could get in court – the threat of the loophole. Never during the discussion however were we given insight that “need” might mean whatever my wife could craft for her brand new life, including expenditures that were extraordinary. This is where good-faith and reasoned arguments broke down in the negotiation as well (PG S6).
The meeting was stalled and the experts(lawyers) decided that we couldn’t reach a solution. There seemed to be a lack of advice from either lawyer about what a court might approve as the marital standard, which admittedly depends on the judge. But no norms were offered, and that may have tied into the strategy of “need based” versus “entitlement based” support that we had decided to pursue, but was not really clearly defined. The problem I believe Tesler likely caused with what I guessed was strategic advice about temporary support to wife may have caused my wife to assume an agressive position when filling out expenses - more as a wish list - but it still fell outside the reasoned approach, (PG 4.01, PG 7.01) which I feel should have been better enforced/suggested by the lawyers sitting passively. It was decided that the only step we could take would be to try to discuss each expense item individually to see if there were ways to compromise or find errors.
This approach upset my wife greatly, where she felt belittled by being challenged on any item and not inclined to explain anything to me, disbelieving that I would argue with a need she felt she had for her future. I believe this fell outside of her expectations of my paying whatever she asked. (I should reiterate that there is no way for me know whether my wife asked for large amounts from advice she directly received, or from her own motivations based on advice about having the upper hand in court.) At the conclusion of the meeting, we made an offer for support that was at the high end of the amount I had been willing to pay and greater than the marital spending significantly. It was met with the remark, “this is not even close!”. Going against my better judgment, my lawyer and I left the room and then came back with an offer some 30% higher immediately. This was taken under consideration and the meeting ended. I should mention here also that whenever I brought up community property as being a settled issue, Tesler objected and said in effect that nothing is settled until it is all settled. As such we could not nail down any terms for the settlement and move on to focus on issues that were contentious (of which there really was only one – support).
After no response for 5 days, I decided I was not comfortable with the offer since I was negotiating with myself to develop it. Instead, following the idea of good-faith negotiations required in the Collaborative Law Divorce guidelines (PG 6.01), I pulled the offer and asked for a counter proposal by my wife to see what she would find acceptable. I should mention that somewhere around this time, I was told not to communicate with my wife at all. This was done through a message passed from Tesler to my lawyer to me, Tesler saying it was what my wife wanted, and that we could only talk in four-way meetings with lawyers present. However, my suspicion was that she was advised to do so by Tesler to avoid “accidentally” being truthful about certain aspects of the discussion or to make substantive progress without complete control of the lawyers. Later, my wife did talk to me for a short period until it was cut off suddenly again, which demonstrated that it was not necessarily her directive to her lawyer to tell me not to contact her, and she freely contacted me whenever she wanted something. By ceding power completely to her attorney, we were now in for a ride that we could no longer control and my negotiations were with Tesler not my wife. When I wrote an email to the group of four (wife, myself, and two attorneys), I was reprimanded by Tesler saying that it was improper in a collaboration for me to communicate on my own! (Email: Tesler of 9/6/06) There was nothing in the guidelines saying this, and one would expect that direct communication would aid in any real collaboration. Tesler never emailed me directly after that, with the exception of her paralegal scheduling meetings. All important emails were addressed to my wife, my lawyer and not me.
The Collaborative Law Divorce special lexicon started coming into full force during September when any request of for a simple counter proposal from my wife was returned with catch phrases like “that would be positional” or that negotiating is “not collaborative” from Tesler. I left town for a family emergency and returned in about a week and a half. The process however, stalled the entire month, and there were no significant emails or communications about it during my absence.
I should mention that despite the fairly obvious violations to the collaborative guidelines given to us(PG 4.01, PG 6.01), and the unwillingness of Teslser to negotiate in any organized or productive way, my lawyer Seltzer just quietly stood by and stuck to a collaborative model that was exceedingly tame in comparison to the tactics of Tesler. As such, he appeared to me to offer no help whatsoever during the case, only suggesting repeatedly that I give in to the wife’s demands to avoid court. His advice on what the other side might accept, or whether my wife would quit the process was consistently wrong as well. In retrospect, it seemed that if Tesler was so flagrantly violating the process and not collaborating(PG 6.01, PG 1.01), he should have decided to change along with her or drop out of the case (which does not violate the contract, but just requires me to retain a different collaborative attorney). I thought many times about asking him to step down and felt often like I was struggling with both him and Tesler. Additionally, only six weeks into the case, Seltzer wrote me an email (9/12/2006 email ) suggesting that we state to the other side that we are not operating collaboratively, but now into “positional bargaining”. The subtleties of positional bargaining vs. negotiation were not explained. I did not understand the purpose in this and did not approve of it (the subject came up again in December), but is appears as if it may have been to protect the lawyers from claims of their deviating from the Collaborative Law Divorce process for the reasons stated above, since they signed the same contracts we did.
The process stalled in October as well, with Tesler and Seltzer suggesting a “meta-mediator” to help my wife and me talk about her expenses and support, which we were told after the September 1 meeting were topics that were now off limits to my wife. I suggested that we use a lawyer recommended to me that exclusively does mediation and private judging and who had been in the California State Bar for 50 years. He was immediately rejected by Tesler as being “not collaborative”, however she had never met him (he had done collaborative cases in the past, but actually told me that he no longer does them because he believed the process to not work. He also informed me he had never met Tesler.). The two attorneys recommended for the job by Tesler and Seltzer were both on the Collaborative Law Group list of attorneys along with Tesler and Seltzer. An internet search on both of them turned up a horror story about one of them, David Weinberg, on a site narcissist-abuse.com (Google David Weinberg...). Costs were represented as only several thousand dollars for the mediator to come in (although we didn’t know what he would do), but Tesler, in giving the estimate, did not mention that she and Seltzer would be sitting there quietly earning $800/hr jointly as we muddled through with the new party. The real costs were estimated by me to be about $6,000.
My wife and I rejected the idea of the mediator and I repeatedly asked for a private judge to come in and arbitrate the single issue of contention: spousal support. Seltzer said if we brought in a private judge, he would have to step down since it is not collaborative. However in Tesler’s Handbook for Clients,(which had her name on it, but was (c) 2001 American Bar Assoc. at bottom) section 12 stated explicitly, “Q. ‘What if my spouse and I can reach agreement on almost everything, but there is one point on which we are stuck? Would we have to lose our collaborative lawyers and go to court?’ A. ‘In that situation it is possible, if everyone agrees (both lawyers and both clients), to submit just that one issue for decision by an arbitrator or private judge. We do this with important limitations and safeguards built in, so that the integrity of the Collaborative Law process is not undermined. Everyone must agree that the good faith atmosphere of the Collaborative Law process would not be damaged by submitting the issue for third-party decision, and everyone must agree on the issue and on who will be the decision-maker.’”. When I raised this with my attorney, he refused to answer my email and Tesler had no comment. In my speculation, Tesler was concerned that such a judge would reset the expectations back to the marital standard and defuse the divorce. Note also how the lawyer’s have to agree such that they maintain complete control over the “process” even if husband and wife want a private judge. And Collaborative Law Divorce is often marketed by saying the spouses have complete control over the process!
October 31, 2006: I wrote a letter suggesting that if my wife cannot make a counter proposal, I would consider the process as not working and leave, and also saying that there were other means for resolving our conflict through a negotiated settlement with other attorneys or a private judge. (I ran a draft of this letter by Seltzer and got the feeling that he had shared its content with Tesler before I sent the letter out, because he asked me not to send it because of substantive discussions with Tesler he was having, but then produced no result.) My wife called me immediately in fear that I would quit and asked me to settle. Following that we had several phone conversations that were calm and productive, where we were both sincerely trying to resolve the issues and understand each others’ points of view. On Nov 7, I ask my wife to meet me for coffee to try to resolve our differences. She was not sure, and the next day an email arrived from Tesler saying wife would provide a counter proposal later. The coffee meeting never took place, wife never called me. My guess was that Tesler squelched the meeting, fearing a loss of control over my wife.
November passes and I warn that if year comes to an end before settling, it would affect the payment schedule of support due to IRS re-capture rules (we were planning payments spread over 3 years in roughly equal amounts). On Dec 8, the “counter proposal” arrived via U.S. Mail. It is not a proposal for a settlement, but just a re-working of wife’s expenses, and the total was higher than the original disclosure from August. Reluctantly, I agree to meet to discuss since it was the only way I could communicate with my wife. The meeting could not be scheduled until Dec 20.
On Dec 12, I sent the group a 1-page table that summarized the entire settlement (community property and support and summary of terms) to the group, asking wife to fill out a column left blank for her, so that we could see our offers side-by-side and determine how far apart we were and possibly agree to freeze some of the items to isolate only our differences. This was ignored until the day before the meeting and I then canceled my attendance at the meeting, saying that I still had not received a simple counter proposal. The morning of the meeting my lawyer called to say that Tesler was supplying my wife’s income to complete the counter proposal (not really), so I agree to attend, even though the table was not filled out and the settlement status was murky.
Dec 20, 2006 meeting is a bizarre display of disorganization and confusion, taking me two hours to simply fill out the table I had sent on Dec 12. Lawyers were confusing before-tax and after-tax numbers, making it difficult to actually understand where we were. Finally, with the meeting time coming to an end, I explained where we stood and how far apart we were – X dollars/month on income and Y dollars/month on expenses. While income was based on previous 5 years, wife insisted she can only make so much now – the deflated figure in her original disclosure, which included paystubs from only the few months immediately following separation, where her income was indeed very low.(Her W-2 for the year, disclosed after settlement, showed a greater income for the year (PG 7.01)) I offer to meet wife halfway on difference of expenses. Tesler, sensing a settlement, immediately brought up the subject of my paying the entire amount of my wife’s attorney fees, which represented about 5% of the overall settlement amount at the time. I refused and the meeting broke down with crying and threats of court by my wife. I walked...
That evening, I sent an email to the group showing a summary of where we stood and exactly how far apart we were on the income/support amounts, suggesting that going to court over such a small amount (about 8% of settlement total) would be ill-advised. My wife then emailed me in the morning saying that she will accept Z dollars/month support and it is a final offer. The number looked like my last proposal, so I accepted immediately, but I was concerned about my wife considering the before-tax, after-tax issues with her offer since the lawyers contributed to confusion over that area. In any case, we adjourned for Christmas break and my wife and I were relieved that we had come to an agreement. She even called to say Happy Holidays.
Jan 4, 2007: I sent out spreadsheet of entire settlement and terms intending to use this as an outline for the actual settlement agreement. On Jan 10, Tesler writes email to say my wife was confused about her offer (made directly to me Dec 21) and that her numbers were after-tax numbers while mine were before-tax. This is precisely the issue that the attorneys should keep clear and they were both copied on all mails regarding this accepted offer. Tesler sent out mail on Jan 15 demanding 100% of wifes attorney fees and trying to get me to pay support in 2007 and characterize it as 2006 payment when that year had passed, which would be fraudulent for tax purposes.(LINK to 1/15/07 mail, IRS Code Pub 17, Chap 18 ) Fees quoted were 50% higher than actual fees which I calculated from wife’s disclosure. On Jan 21, we wrote to ask if there are any more changes. Seltzer complains he is more than a secretary, but just forwards mail back and forth between myself and Tesler! On Jan 23, Teslser writes back and demands settlement with no changes, even numerical corrections (against guidelines of CL ( PG section 4.01), at this point. Issues third ultimatum in three months to finish - by Jan 31 this time. On Jan 22, Seltzer informs me that if I feel that the process is not collaborative, we can “just talk terms”, i.e. negotiate as provided for in the collaborative guidelines, but we have to tell Tesler that it is “not collaborative” (my speculation is to protect him somehow?).
A response is sent back to Tesler on Jan 25 offering non-taxable support figure and reimbursement for half of wife’s planned education costs. No attorney’s fees offered. No response came before the Jan 31 deadline stated by wife. I discovered then that my wife had consulted two new litigating attorneys. While this deviates from the “process” it is not a direct court action, which would void the collaborative contract, and I had consulted a litigating attorney as well several times for perspective. I speculate however that the picture painted by the new attorneys was not that flattering 7 months after separation and after generous settlement offers, since wife appeared to not contact them any more. But it is significant in that it comes up later as a threat of court action in an email from Tesler (May 10, Email, Tesler) , once again violating that basic rule of collaborative divorce( PG 6.01). Since so much time had elapsed and Tesler was draining my wife’s finances for her fees, wife had said several times that she was “out of money” (dating back to November). I offered to split up more of our joint account to solve this problem, but there was no response by my wife. I speculate she was advised not to accept money from our community in some attempt to make it look like I was starving her into settling. She had other sources of private funds to use during this period.
On Feb 15, three weeks later, Seltzer received an email saying wife is “having trouble deciding” what to do because of attorney’s fees. Tesler responded on Feb 21, saying that my wife’s attorney’s fees are actually lower(by 40%!) than quoted - that it was a “clerical error”, and that they have to be paid to settle “today”. No supporting invoices were provided for the attorney fees. A long email rant states that my wife is living in a “flea infested” apartment and that her finances are dwindling with each passing day. (I had offered twice previously to wife that we split up more of our joint account to meet her financial needs.) I accepted the current balance for her attorney’s fees, but stated that no more will be paid after that point in time. We were given the go ahead to draft the Marital Settlement Agreement (MSA) finally! A draft of MSA was delivered to wife and Tesler on March 8. I felt compelled to have it reviewed by several other family lawyers before sending it to wife, due to my questions about Seltzer’s competency, hence some of the delay in getting it out. A week later, we asked status and Tesler wrote back that she was “just packing” for a trip to England when the MSA arrived and no progress could be made until she returned after end of March! Trip was probably for another collaborative speaking engagement, and there were emails following her departure, but apparently no time for her to review the agreement. I took a 2 week vacation to escape and unwind.
Tesler returned somewhere around April 5, but no response arrived all month until, on April 30, the day before I was leaving again for a family event, Seltzer received via U.S. Mail, a hard copy of the MSA that was signed, notarized and every page initialed by wife. No explanations in cover letter, but Seltzer quickly determines that it had been edited significantly from the draft we sent. No redline copy supplied. So Tesler had my wife sign and notarize a document that was not even reviewed by me, seemingly to try to pressure me and I speculate to consume more fees from wife. I demanded a redline copy and an incomplete one was sent several days later such that it had to be compared to original version to really find all the modifications. Teslser’s changes attempted to deviate from Calif. statutes about support ending upon death and about what co-habitation means (for support reduction as per terms we agreed to). While such statutes needn’t be strictly followed in a private settlement agreement, the changes went against Tesler’s own objections for making any more changes – even corrections to numbers – back in January. The edited MSA broadened requirements for education reimbursement. Various other changes were acceptable, but the written modifications were really significant changes to terms already agreed upon. Good faith be damned.
On May 9, 2007 we sent a response rejecting most of the changes as violations of statutes (and never agreed to) and compromise on one term. Tesler informs us that she is leaving on May 12 for Australia for yet another speaking engagement and issues new ultimatum to finish before that date! On May 10, Tesler sent a 5-page email with numerous threats of court (Email of May 10, 2007), stating that wife’s litigating attorneys advised her that a judge would “punish” me for not paying any support for almost a year. Consulting other attorneys secretly about litigation was against the principles and guidelines we signed (PG 5.03), and while my wife and I may have consulted such attorneys, the results of those consultations were not fair game for a collaborative negotiation ( PG 1.01, PG 6.02 )Email accuses me of cheating on tax issues and income reporting for 2006. Restates ultimatum to finish by May 11.
Next day, in a curious change of tone on May 10, Tesler writes to apologize for accusing me of cheating on tax issues, and states that “No implication of dishonesty was intended. So far as I can see, [Husband’s] representations have been scrupulously honest.” Tesler says she “hopes to hear back” from wife shortly. Only 1 more day to go before her trip. Seltzer starts to tell me in several ways that “[Tesler] is done” and implies that they will sign our restored version of the MSA. As far as I know, my wife never called back Tesler before her trip. Tesler signed signature page on May 11 and sent an electronic copy to wife recommending that she print and sign. Contract completed. In an attempt to verify that what Tesler signed, and what she asked my wife to sign, was exactly the draft we sent last, I asked my wife to email me the electronic copy sent to her for signature so that I could do an electronic comparison. She refused, saying I would get the hard copy in the mail. This demonstrated the level of fear instilled in my wife to contact me under any circumstances or doing anything however trivial without Tesler's approval, I believe by Tesler herself. She was afraid to send me a copy of the document she just printed/signed and sent me!
Due to requirements for court documents, all documents were not signed until June 7, after Tesler’s return. During the time she was away, I sent first two checks under MSA to wife but she would not cash them until after all court docs were completed, even though I had signed them already. Speculation was that Tesler told her not to cash checks. The final MSA signed had one word corrected by Tesler, but did not appear to be fully proof-read by her. I sent support check on June 8 (waiting to get docs back) and documents were filed with the court on June 8, exactly one year minus 3 days after the wife informed me she was moving out…
The judgment document was returned by the court clerk due to a missing date of separation which ironically, I had informed Seltzer was missing prior to filing. He claimed that the clerks always change their methods and had no way of knowing it would be a problem. But it required a separate declaration be filed at cost to me and a delay of another two weeks. His experience in court apparently did not pay off.
The final judgment was entered into the court on July 5, 2007. The filed documents were received by Seltzer’s office on July 9. I did not get a copy until two weeks later, when I picked them up at Seltzer’s office. The copy sent to me mysteriously disappeared in the mail, just like the last court document sent by U.S. mail from Seltzer and he could not explain why. The invoices always arrived perfectly on time.
Some statistics about the case:
DISCLAIMERS about this story may be found in the Introduction to this site...
Followup: Request for fees be reduced
After the divorce was finalized, I wrote Eugene Seltzer a letter asking that he refund a portion of my fees. For the most part, as explained above, I felt that he acted more as a secretary than an attorney and did not stick up for the principles and guidelines we all agreed to, let alone any of my principles about matters in the case. At $350/hr, it is a bit painful to have your attorney act simply as a mail forwarding service. I raised one specific complaint about how Tesler failed to ever include me on an email CC: list after I addressed the group of four directly in an email early on. This raised my costs significantly and caused delays since every communication from the other side had to be forwarded by Seltzer to me. So, in our collaborative setting, every email from my wife or her attorney was addressed to everyone except me! (Group of four, minus one..)
Seltzer's return letter demonstrates the loose nature and lack of control over any aspect of a collaborative divorce. He states: "a key feature of the collaborative process we discussed was the absence of adversarial, position-based negotiation.." and "The attorneys advise their clients about their options and help steer them through the process, but are not hired as advocates for one side or the other." This typifies the dangers of collaborative. When I was looking for advocacy on principle or even the process itself, which we all agreed in writing to follow, he comes back saying it is not his job in collaborative. This glosses over the fact that Seltzer tried to make a declaration six weeks into the case that we were NOT collaborative anymore (which I refused) and then again several months later. Where does that leave the client? The case becomes some unknown quantity where the rules are made up for the convenience of the attorneys.
Seltzer claims he asked Tesler several times to copy me on emails but she and my wife refused. But he also says that "Issues between the parties are supposed to be discussed transparently in meetings where the interests, needs, and goals of the parties are the standards for deciding the outcome." The email issue was never discussed at a meeting and I have no record of Seltzer asking that I be included on emails. Further, if my wife heard the argument for why that would be better for me and the group, she may have agreed. So, Seltzer hides behind collaborative ideals when needed but does not necessarily follow such ideals in practice. And Tesler was so far from the ideals as to make the process unidentifiable.
Seltzer claims that he recommended that I consider leaving the process since I was unhappy, but that is not the case. He recommended that we state to the other side that we are no longer acting collaboratively (putting us in undefined territory), not leave altogether. And he never offered to step down rather than switch into some ill-defined process, a responsibility in his agreement with me.
Finally, Seltzer claimed that collaborative divorce "probably provided the best economic result for you, particularly given the cost of contested proceedings." Note that he compares to a court case, but not to any other form of negotiating a settlement. There is no comparison with which to make that statement.
All of these issues point out the lack of definition of what really happens or can happen in a collaborative setting. This is pointed out in the next sections about pitfalls and caveats, but it may be that there is simply not enough regulation of this new form of divorce to allow such problems to be avoided...
Upon getting back my file from Seltzer after requesting a fee reduction, it was perhaps more apparent how little was done for my dollars. See emails below. But most lawyer-lawyer confidential communications done contained little more than short restatements of my requests from Seltzer followed my substantially more elaborate responses from Tesler revealing her non-collaborative behavior during the case.
Control: Who has it?
In hearing the pitch of Collaborative Law (CL) Divorce, you often hear that finally, the spouses have control over the process (YouTube video of Today Show feature). That may be the case (when they are on the same page), but there is no control if the spouses disagree any more than in a traditional case. And many spouses getting divorced tend to disagree! What are the lawyers ethically required to do then?
I expect that Collaborative Law Divorce can provide a good means for divorce for some couples. My case could be analyzed to conclude that my ex-wife, who had great difficulty in dealing with the divorce, simply turned the reins over to her attorney, or was directed solely by the attorney. In that scenario, the "process" is ripe for abuse, especially under the control of an unscrupulous attorney. There seems to be no solution for this other than bailing out as early as possible... See below for some more examples of the seemingly contradictory aspects of CL Divorce in terms of who is really in control.
Several months after judgement for divoce was entered, I requested that my divorce attorney (Gene Seltzer) give my case file back to me, which he is required to do (Remember: you own your file! You paid for it.). Contained in that file were some of the confidential communications between Seltzer and Pauline Tesler - for counsel only - that occurred during the divorce. They help give some fascinating clues and insight into what was really happening at the time...
The file was incomplete as delivered and I had to request multiple times for Seltzer to extract missing emails from his computer, a process he demanded I pay for, but eventually did on his own after I supplied detailed instructions for filtering messages in his email program... -Author
The nebulous "process"
There is nothing more nebulous in Collaborative Law Divorce in my opinion than the almighty "process" which is lectured at the first meeting, documented in collaborative contracts signed by all parties, and then supposedly followed towards the path of a sane breakup. The process was indeed documented in both the Principles and Guidelines and Stipulation that we signed in our divorce. But those documents left a lot to the interpretation of the lawyers - in fact just about all of it as experience demonstrated.
When I prepared a letter expressing frustration to send to the group of four as explained in the story above, Seltzer notified Tesler of this and she wrote (my emphasis added):
(Email of Oct 20, 2006) Tesler writes Seltzer, “Please do not authorize [husband] to do that [to send letter]. … I find that it is always a mistake to put anything in writing of a substantive nature, and even more of a mistake in a difficult case, and an even bigger mistake to alter firm process agreements simply because a client wants to.”
Comments: Despite that Seltzer revealed my letter without my permission, Tesler worries that a communication from me will somehow be a mistake in a collaboration, and further, anything substantive in writing is bad! It was the lack of substance or quantitative response from wife/Tesler that inspired the letter in the first place. This shows a need for complete control so that the process can be strung out for as long as the attorneys (or dominant attorney) desire. Note how she uses the word “authorize” when appealing to Seltzer to discourage me. Guides do not authorize.
(Email of Oct 27, 2006) Tesler writes Seltzer, “For [husband] to take the reins unilaterally at this point, on paper no less, would to my mind be a serious step backward in our ability to do any effective process management. If you and I are not in charge of process—and we certainly wouldn’t be if [husband] does this—I see no good faith basis for continuing to waste [wife’s] money in a conflict resolution process that is not working, which is what my best professional judgment tells me we would be doing if we continued to let matters be guided by [husband], rather than by counsel.
We are the rulers of process; the clients own the substance.”
Comments: This last line says it all. The lawyers rule the process entirely given the flexibility implicit in the wording of the contracts and (at least in my case) the ability of the lawyers to control communication. There is a basic discrepancy between some pitches for CL divorce that describe the spouses working through problems with lawyers as guides, and this characteristic where the lawyers control exactly how everything should be done. Granted they should indeed know methods to best achieve collaboration and agreement, but these did not seem to be followed in my case. This response from Tesler was all about my communicating to the group in a letter, which is no different than my doing so in a 4-way meeting other than it not accruing as much attorney’s fees. Had I read the letter aloud in a meeting, it seemingly would have met the requirements of collaborative as dictated by Tesler. But it is my opinion that the content of the letter is what bothered her, because it said that the negotiation was not taking place, progress was not being made, and that there are several other forms of divorce we might want to consider (which would shut down the case and fees for Tesler/Seltzer). While a true guide might explain the ways that work best to make progress, there is nothing collaborative about shutting down communication and requiring the spouses to do what the lawyers want to do for process and nothing more/less. The process is more important than the clients in the way Tesler describes things. The letter by the way was sent, and my wife immediately responded by requesting we work harder to settle – actual progress – until our conversations were once again shut off abruptly by what I speculate was advice from Tesler. And there was never any agreement about the protocol Tesler introduced to inhibit my speaking to the group directly.
The "process" really never took definition in my case. Seltzer suggested we declare that we’re not proceeding collaboratively after only six weeks because I wanted a proposal for settlement from my wife. But he failed to specify exactly what we would be doing after that declaration, and how it might be advantageous over any other standard negotiation. While changing the process to suit the participants sounds reasonable since everyone is different, the process being “owned” by the attorneys is just code for "they run the show", potentially extracting the most financially in the process.
Process as madness
One great source of frustration in the case was the lack of any rational path towards settlement by, for example, checking off things that we agreed upon and moving to focus on what was left. In a rare moment of advocacy by my attorney, Seltzer forwards Tesler this question (from an email I sent him):
(Email of October 30, 2006) Seltzer to Tesler, “However, he [husband] has a legitimate question: how can we ever resolve a case if we don’t address deal terms at some point? He put some terms on the table for discussion and has heard only “No.” I have told him that you felt these proposals were ‘way off’ but can’t really quantify it for him because we enter into positional bargaining. But, is he really not entitled to some further response before we bring in a mediator?”
Tesler responds, “[Husband’s] response was to offer dollar amounts that did not correspond to what had been discussed, and which were not accompanied by any explanation of why they seemed to him to be reasonable for [wife’s] needs.”
Comments: Every proposal we made and every response was explained quite well, and for financial data, I presented very complete records of our spending as prepared from our computer accounting software. This response is a case of projection, where Tesler’s proposals rarely if ever were explained, and more in the genre of “Pay up”. Seltzer never responded to Tesler in defense of my rational approach or numbers after the above email as far as I know.
The real strategy revealed:
It becomes increasingly clear when reading the emails from Tesler to Seltzer that, unlike a true collaboration, there was a dominant strategy on the part of my wife/Tesler from the very start, and it doesn’t appear to deviate much from what might be expected in a traditional divorce or negotiated settlement. Given the so-called “loophole” for my case described in the story above, where my wife could conceivably be granted a huge monthly temporary support for a period of time before a permanent support hearing, the strategy in my opinion was essentially, “He’s screwed in court, so he’ll pay what we ask here to avoid that.” How this aligned with my wife’s moral values is difficult to say since the court scenario potentially subverts our pre-nup and embodies the idea of “going after” my assets, which she claimed she didn't want to do.
There is nothing unusual about pursuing such a strategy in a divorce, but what is different here is that it was all under the surface and disguised by a phony collaborative setting. If we sat in meetings and discussed the idea of challenging the pre-nup or seeking the full amount of guideline temporary support (i.e., what the Dissomaster computer program would calculate – essentially dividing all income in half for support) despite it being much greater than marital spending, then perhaps my wife and I could have had a better meeting of the minds about how that related to the marital standard, and what that meant both morally and for any relationship we might continue to have (as friends). But rather, Tesler appears to use the threat of court in every aspect of the negotiation but not explicitly, so as to not violate the guideline which prohibits such action in Collaborative Law Divorce.
(Email of September 11, 2006) Tesler writes Seltzer, “I don’t think [wife] has been adequately recognized for her choice to work from a budget, rather than simply to seek the automatic and much higher temporary monthly spousal support that would be hers on request from a court. [Husband] would almost certainly be paying in the vicinity of $xx/month to [wife], on her request, if she were not electing collaboration.”
(Email of October 30, 2006) Tesler writes Seltzer, “Personally, and quite candidly, if I had a client behaving as [husband] is with the guideline numbers what they are, I would be telling him he should say yes to a request that is roughly 1/3 of guideline, without further discussion. … [Wife] has not asked for [temporary] guideline or anything near to it, and it seems disrespectful for her and [husband] to be making the offers that he’s made. She is offended, to tell you the truth.”
Comment: Wife asked for about half guideline support, but we were living off of one tenth of our income during marriage since a large portion of income was specified as separate by the prenup and went directly to savings. So, Tesler feels it is disrespectful for me to expect my wife to live by the marital standard. My wife’s reported offense may or may not be accurate, but even if so, it was in my speculation because Tesler emphasized the large guideline temporary support figure, without perhaps explaining that the temporary support goes away as soon as the permanent support hearing takes place (which would most likely result in my numbers from marriage). So, Tesler talks more as if wife is entitled to the large support figure for whole period when alimony is paid. It is important to note that in our 2nd meeting, we agreed to approach the support issue from a “need-based” perspective versus an “entitlement-based” perspective! As such, the court scenario was supposedly being left behind to collaboratively focus on what my wife really needed to survive in the two and a half years after divorce. But the emails show that Tesler was not really following that agreement at all since court came up again and again. This strong advocacy for my wife theoretical entitlements in court go against the collaborative principles. And the imbalance between such strong advocacy on my wife's side coupled with no advocacy on my side by Seltzer was a formula for a very unpleasant divorce. Collaborative theories do not seem to deal with such possibilities in my view.
You might think that a collaborative setting involves reasoned discussion at all steps. But not so. As we finally prepared the settlement agreement, we drafted and sent a copy to Tesler. Her email below shows a response (my emphasis added):
(Email of April 17, 2007) Tesler writes Seltzer, “Gene, I have been working with [wife] to produce a slightly revised MSA that is entirely acceptable to her. There are no substantive changes to the terms they agreed to and you wrote up, but I have made what I hope can be seen as upgrades to certain of the procedural wrinkles and arabesques (characteristic [husband] work product) that did not fly well.”
Comment: Not only did Seltzer fail to inform me that they were making changes, Tesler failed to give any preview of what those changes might be, but rather, sent a signed hard copy document 2 weeks later that did have substantive changes to financial aspects of the contract and NO explanations.
In same email: “On balance we decided to send the document to you in hard copy signed and notarized by [wife], rather than in electronic draft format, so that [husband] will have the option of seeing on the one had a done deal – immediate end of lawyers’ fees for negotiations—end in sight, all he has to do is sign it.”
After making substantive changes to terms without even sending a redline copy, Tesler uses high-pressure sales tactics to influence me to sign an altered document out of fatigue, and further, emails from Tesler in January 2007 stated that absolutely no changes to terms should be allowed, even if they are corrections to previous numbers! (against Guidelines) I did not sign the version they sent.
Ethics violations or just bad lawyering?
Some of the behavior described above by the attorneys in the case may be considered unethical, or at least worthy of complaints, but the author is not an expert in that area, and some information, like emails between the attorneys, is not available. You be the judge... and please contribute your stories, opinions, and comments to the FORUMS on this site to help your fellow divorcing couples! Here are a few examples I think qualify:
(Email of December 21, 2007) Tesler writes Seltzer, "Hi, Gene. I do not know what [wife] will decide from a process point of view but will let you know as soon as I do. Meanwhile it would be important to have minutes of this last meeting that present an accurate summary of events and the adjustments and final numbers that were proposed by each, without [husband's] post-meeting unilateral away-from-table spin effort at defining the "delta" constituting the last word.” Then Seltzer writes back to Tesler saying, " Given [wife ’s] recent reply, further minutes may not be necessary. I will try to get to it when I can….Gene
Comment: After a contentious 4th meeting Tesler rightly requests meeting notes, which would be vital in any further discussion. Seltzer never wrote them up, probably because we had tentatively settled the key issue the next day. When the deal fell apart a few weeks later, there were no notes to document the meeting other than mine, which are labeled as "spin" by Tesler, i.e., accusing me of lying. The meeting was never written up, which is a requirement of our process.
(Email of December 20, 2006) Tesler writes Seltzer in preparation for meeting next day, "I have no basis for representing that an arbitrator or private judge would at that point be acceptable to her [wife]. There is nothing an arbitrator could do that they cannot do themselves and the amounts of money they are differing about are, for [husband], relatively insignificant but for her, very important. "
Comment: This shows that, as I speculate, Tesler calls all the shots and shoots down the idea of an arbitor or judge to settle the key (and only) issue of support with for what appears to be simple advocacy for wife on amount of money. It is my view that a private judge would not support wife's numbers and hence Tesler advises against. It is difficult to say whether wife would have gone along with private judging which I requested months earlier and is an option in the Collaborative documents if given the choice. Tesler also makes a judgment about how much the money means to each of us as well. And note that what we could do ourselves was limited, when Tesler declared after the September 1 meeting that all financial topics were unacceptable to wife for discussion (the only point needing to be settled was financial of course).
(Email of January 4, 2007) Tesler writes Seltzer, "As before, [husband] continues to send direct and annoying messages to [wife] via email. [Husband] seems not to understand State Bar rules regarding communicating directly with a party represented by counsel, though I know you have advised him not to do that. Just so you are aware, I've advised [wife] not to respond to any direct communications from [husband] other than to tell him that he should send divorce-related communications only through you. I've urged her to ignore any direct requests for information, agreement, etc. except as transmitted through counsel.”
Comment: Is this a court case or a collaboration??? Note that this is even after we had agreed on all the terms a month earlier. So apparently Tesler's contention is that the spouses may not communicate AT ALL during a collaboration unless they (the lawyers) are present (at $800/hr), and she provides a basis as if we're in the middle of a litigation. And my wife continued to contact me via email/phone whenever she wanted something. I believe the directive to not communicate occurred early on in the case since wife would not respond to any email about the case, however trivial as early as September 2006. I also believe this was the strategy used to take complete control of the case, increase expenses, and encourage suspicion and conflict, thereby prolonging the case. There is nothing in the Collaborative Law contracts we signed or literature given to us that has the protocol Tesler introduced - where we could not talk at all. In fact, we made the most progress each time we did NOT follow that protocol and talked (such as the agreement to settle in December), but such progress was quickly shut down by what I believe was a reminder by Tesler to wife not to communicate further with me.
Review of Pauline Tesler's book "Collaborative Divorce" and how it relates to this story.. Click Here
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