Attorney Brad Tengler interviews Attorney Keith Morse , a family attorney who concentrates in Collaborative Divorce law. Keith explains how the Collaborative process encourages folks to cooperate as they are going through their divorce – and avoid excessive emotional and financial costs that often accompany divorce litigation.
February 26, 2013
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Brad: Good evening, folks. And welcome to Divorce Talk Radio. This is attorney Brad
Tengler here in the studio with attorney Keith Morris to talk about collaborative
divorce law. Welcome, Keith.
Keith: Thank you, Brad.
Brad: Before we begin speaking about collaborative law, could you give a little bit of
background about yourself?
Keith: Well, I’ve spent a number of years in the practice of law. It’s not quite 50 yet, but
working on it. And my experience has been, I started as a prosecutor, spent some
time as a judge, and spent some time, since then, in private practice, pretty much
exclusively. My emphasis for the last 20 years or so has been family law. And
most recently, I do a lot of work with alternative dispute resolution, which
collaborative law is an example of.
Brad: Great. Twenty years of family law.
Keith: At least.
Brad: That’s a lot of family law.
Keith: Maybe more. I’ve never sat down and totaled it up. I’m not sure I want to know.
Brad: This evening, we are talking about, specifically, what is called collaborative law.
Can you describe to the audience what that is in the context of a divorce?
Keith: Collaborative law is a process where the parties, with their attorneys and perhaps
other professionals, attempt to resolve whatever issues they have between them
without the intervention of court. We don’t take any case to court until we’ve
resolved all the issues. And the parties get to determine their own outcome. It is,
after all, their case. And not the case of the judge who might, ultimately, be called
upon to decide it.
But the theory of collaborative practice is that the parties can better deal with their
own issues because they’re always going to know substantially more about them
than any judge will ever know. It also allows for results to be reached which
would never be reached in a court process.
Brad: Sure. Now, when you say “without the intervention of court,” does that mean that
people can get divorced through the collaborative process without ever filing any
paperwork in court? What does that mean?
Keith: No. What it means is that we resolve all the issues before we file any paperwork.
And then, basically, we file the case and send it for [prove-up] in front of the
judge and then we tell the judge what our agreement has been and that will be the
extent of their connection with the court.
Brad: So, you mentioned, we resolve all the issues and we go through the process before
we’re ever in court. Could you describe for the audience, what that process is?
What those issues are prior to actually appearing in front of the judge to get the
Keith: Well, one of the things that kind of difficult to learn as an attorney is that in the
collaborative process, we let the clients tell us what they want. I spent a long time
telling clients what they were going to get and what I thought they should do. And
in the collaborative process, the first question we asked them is what result they
would like to see.
And one of the questions that we ask which is never asked in a litigation case is
“What would you like your relationship to be with your spouse after you’ve
Brad: I see you smiling as you say that.
Keith: Well, after all, let’s assume for the purpose of argument that the parties have
children. A divorce does not end a relationship in spite of the fact they might
think it does. It simply modifies it. It simply changes it. They are still going to
have a relationship with the mother or the father of their children. And would you
like that to be civil or would you like that to be contentious for the rest of the time
that you live because, so long as you have children together, you’re going to have
contact with each other.
Brad: Is that one of the goals of the collaborative process is to avoid some of the
contentiousness that litigation in divorce can cause between a mom and a dad?
Keith: Definitely. We think that mom and dad or the parties, if you want to call them
that, are in much better position to deal with their children’s issues, their issues,
the issues that ended the marriage, whatever they might be, than we can never
educate a judge enough to be able to deal with.
And court time being as precious as it is, we have a lot more time to address it, as
Brad: So, the parties begin. Let me rephrase that, because that’s probably a bad question.
How does a person begin the process of, say, a collaborative divorce? Unlike in
normal litigation where you hire a divorce attorney and you file paperwork with
the court. How does that begin the collaborative process?
Keith: A collaborative divorce ordinarily begins with two attorneys who have been
trained to handle collaborative cases representing two parties. It might be that one
party comes in to see one of the lawyers and he gives them a list of other lawyers
who are trained in that process. Or they might be a referral from a counselor or
something like that.
They come in from any number of things or any number of directions. But we
start by signing a document that both lawyers and the clients sign called a
Brad: So, just to clarify, in the collaborative process, both the husband and wife, both
the mom and the dad, they both have separate attorneys?
Keith: Yes, they do.
Brad: And why is that? Why can’t they just use one attorney?
Keith: First of all, we have some real ethical issues with representing two parties that are
suing each other. I come from a mediation background and mediation doesn’t
require, necessarily, that the parties have two attorneys or even any attorneys. But
the problem with a lawyer doing mediation with parties is that he can’t give legal
advice. So, the parties ask a legal question and in the course of mediation, you
can’t answer it.
In collaborative law, both parties have their own lawyers. And legal questions can
be readily asked and answered. And so, we all participate in the process together
through a series of meetings and that way, we resolve the case. And there are
some other aspects to it that are different, as well.
Brad: Sure. Going back to the attorney situation, let me give an example. Let’s say mom
and dad with three kids want to do a collaborative divorce. Dad has a really good
job; he’s making $150,000 a year. Mom is 36 with three children, ages 2, 5 and 7
and obviously, in a situation like that, probably does not have a decent income if
she’s a stay-at-home mom. How does the mother afford hiring separate counsel in
the collaborative process if the court doesn’t intervene and divide fees and things
Keith: Let’s back up a little bit. We start out with the marital estate. That’s all the
property that everybody owns, okay? That’s still a concept that’s valid in a
collaborative case or any kind of case. And in the collaborative process, things are
paid, debts are assigned, financial obligations are resolved by agreement. So, if
mom goes to another collaborative lawyer, when we sit down at the table, whether
it be the first time or the second, whatever it might be, one of the priorities is to
get her lawyer fees paid. We reach an agreement as to how her lawyers’ fees get
We’re not interested in running to court to get temporary orders awarding
someone fees, because we’re trying to avoid being contentious. So, I can’t afford
to pay my lawyer, okay. We’ll take the money out of the savings account and pay
your lawyer. That’s a typical conversation.
Brad: So, for instance, Mr. and Mrs. Smith might come to you. Mr. Smith is the guy
who called you. You sit down with both of them, you tell Mrs. Smith “Well, you
should get counsel.” Is that along those lines?
Keith: Yeah. And I will give her list of people who are trained in collaborative fees
[inaudible 10:45] and interests. We have a local practice group. We have a
brochure that has the names of the people who have been trained in the brochure
and I suggest she call one of those people.
Brad: She calls one of those people and then, the first thing that the parties usually do is
sit down and work out the fee arrangements. So, that’s not an issue later on?
Keith: As part of signing the participation agreement, we will discuss whatever issues
are urgent. And it would seem to me that fees would be an urgent issue. So, we
would deal with that, probably at our very first meeting while we’re signing the
Brad: In a situation like that where you’ve got a relatively young family with three kids,
what are the other urgent issues that would initially be discussed?
Keith: Well, if there are any children-related issues, we try to follow the guidelines that
the Supreme Court has set up for all divorce cases. We try to deal with children’s
issues as quickly as we possibly can. One of the features of the collaborative that
is different than the court process is that we also have other professionals trained
in the collaborative process who can help with some of this.
We have mental health people who can help the parties go through the process
and we call them “coaches.” We have mental health people who are trained
specifically to deal with children’s issues because we know kids don’t talk to their
parents about problems in the divorce. And those people are referred to as “child
specialists,” and we know who those people are and we can make them available
to the parties for consultation and connection with whatever issues might arise.
We also have financial specialists who are trained in helping people plan their
finances in the future. If they’re no longer going to married to each other,
sometimes, one party is not as financially astute as the other. And the financial
specialist is a neutral who can help either party. And of course, traditionally, the
lawyers had to do all those jobs.
Brad: Which we are not qualified for.
Keith: You know, we probably did pretty well according to our level of experience, I
suppose. But, for example, to use the mental health field, as an example, I used to
think I was pretty good at helping people through some of these things until I saw
somebody who was good. And they earn their money and they’re better than I am
by a lot.
And the financial specialists, likewise, because they deal with this every day. I
don’t deal with it every day. I don’t deal with financial problems every day. I don’t
plan people’s college expenses for their children, etc. Financial specialists do. So,
we can offer them a wider range of services than an ordinary divorce case does.
Brad: Sure. You talked about, usually things that are addressed first are children’s
issues. I’m just stepping back a little bit. Explain to the audience a little more.
When you say “children’s issues,” are you referring to child support? Are you
referring to parenting time for custodial and visiting parents? What, specifically,
encompasses children’s issues?
Keith: How that might come up, Brad, is we might say, “How are the kids doing?” And
mom says “Well, they’re struggling with this and they’re struggling with that. This
is hard on them.” Dad might agree with that or he might see something different.
And if it seems to us, from our conversation with the parents, that it would be
important for the children to see a child specialist, we give them a name of a child
specialist, and we say, “Look, we think it’s a priority to take these children and get
them to spend some time with a child specialist.”
Because we’re going to tell the parents to go see a coach anyway just to help them
understand the process and some of the emotional things they’re going to go
through in a divorce. And there’s no reason that children shouldn’t be afforded this
Typically, the issues regarding where the children live, the money issues, are
going to be resolved by us sitting around at the table and just saying, “How are we
going to do this,” and it gets done. Because that’s the mindset of the people who
want to do a divorce this way.
Brad: Sure. When you say “coaches for parents,” are these psychoanalysts, are they
trained therapists? Are they licensed clinical social workers, who are the coaches?
Keith: They could be licensed clinical social workers, they could be therapists.
Typically, they come from the area of mediation where they’ve done and trained
as mediators in family cases. We’ve got a couple here in town who do a lot of
coaching for us that are trained mediators. I don’t know if I should be mentioning
Brad: You can mention names.
Keith: Well, Norm Dasenbrook [SP] who does a ton of mediation and is a trained
therapist, does a lot of coaching. Eileen McCarten [SP] who you may know, runs
the parents and children together program and teaches joint parenting, does a lot
of coaching. They both have the credentials to do that. Eileen has also got the
credentials to be a child specialist, if necessary. We’re looking to train some more
mental health people, because we need more.
Brad: Are the coaches specifically trained for the collaborative divorce process? Or are
they simply professionals out in the community that deal with counseling?
Keith: The training is interdisciplinary. We’ve all been through the basic training. We
have to keep our credentials by attending advanced training. At the trainings, at
the basic training, one’s coming up next March, 22nd and 23rd out at Northern
Illinois. Lawyers can be trained, mental health people can be trained and financial
people can be trained. The training is the same for all.
The advanced training can be somewhat more specialized. But the basic training
is for everybody and yes, in order to be a coach and in order to be a financial
specialist, you have to have the basic training in collaborative.
Brad: The financial specialists that are used in the collaborative process–obviously,
they’re addressing money with the parties–but can you give more specifics about
what they do?
Keith: Well, let’s take the example where we have a stay at home mom, who, for one
reason or another, has no particular interest in finance. All of a sudden, she’s
going to be cast adrift and have to handle her own finances and she’s going to be
ending up with some money, maybe, money from her husband’s retirement or
she’s obviously going to have deal with child support. Figure out how to run a
budget for the household, which she may or may not have done.
That could be dad, it could be mom. But the idea is that a financial person could
sit down and help them with those things. Let’s say a joint goal of the parents is to
educate the children. Financial specialists can sit down and look at their
respective incomes, the marital estate, the assets, the liabilities and say, “I’ve got
some software that maybe can do us a projection that will help us plan for the
education of the children.”
We joke about the financial specialists have better software than the lawyers and
they do. It’s focused on different things. It’s focused on goals that typically, the
lawyers may or may not habitually be used to working with.
Brad: So, they might be able to sit down and come up with a game plan for college
tuition, even though the parties are divorcing and the kids are two, five and seven.
But some kind of game plan that both parties agree to and that can be entered into,
an order that will protect the children in the future?
Keith: Well, it may or may not become an order. But it certainly can be an agreement
between the parties based upon today’s financial situation projected out into the
future. And that’s an area where we don’t often deal in an ordinary divorce case.
We can’t leave the parties to do that themselves.
In addition, the financial person being a neutral, can meet with either party
separately. Maybe one party needs more work on an area. They can meet with
them separately, together. We can call the financial person in to a meeting with
the parties and the lawyers. We can call the coaches in to a meeting with the
parties and the lawyers.
Sometimes, maybe, I want to have a coach look over my shoulder and check my
technique to see if I’m saying something that might not be so smart to say if
tensions get a little high, which they can do, even in a collaborative case. So, we
have all this power, all these people available to us to help us get through the
Brad: You just mentioned how tensions can get high, even in the collaborative process.
Let’s say the parties disagree about a specific issue. Maintenance, [the amount of
the] maintenance. What happens, then, in the collaborative law process?
Keith: One of the features in the collaborative law process is that the participation
agreement that everybody signs at the beginning. Which includes, by the way, the
coaches and the financial people, provides that if an agreement cannot be reached,
then the lawyers must withdraw and the parties must seek new counsel. And they
can go litigate to their heart’s content, if that’s their wish.
That creates a great incentive to resolve things. Because everybody is on board
that the typical attitude is “I don’t want to have to start this over again.” So, it’s a
great enabler, as far as compromise is concerned. And if there’s no agreement, we
work on it. It’s like any other disagreement. We look at it from different aspects.
You maybe consider other things in connection with it. And ultimately, more
often than not, we’re able to work it out.
Brad: Are there some cases when a client or potential client comes to you and you think
“This is not meant for collaborative law?”
Keith: Oh, yes.
Brad: Okay. And what kinds of cases would you see?
Keith: As long as I’ve been doing this, it’s pretty easy to recognize the cases that are
going to be extremely contentious. Let’s say you have someone with serious trust
issues with the spouse. Sometimes, you can do that in the collaborative process,
sometimes you can’t. And there are no specific, I know of an 80-page law review
article written on determining what lawyers and/or clients are appropriate for the
collaborative process. But, as you might imagine, that talks about a lot of different
things that go into the decision, whether you recommend it or not.
And I won’t say I’ve never had a collaborative case go south on me, because I
have. But I’ve only had, like, 2 out of 20 or 25, something like that. So, the track
record is pretty good.
Brad: That is pretty good. So, generally speaking, when someone comes to you and you
think this case is ideal for the collaborative law process. Say, a maintenance issue.
Like the scenario that I gave with the 37-year-old mom who’s a stay at home mom
and a dad who makes $150,000. The parties are going to agree about the finances,
truthfully, have some kind of agreement about that, so, everyone’s taken care of.
Keith: You sound like a litigator when you talk about maintenance.
Brad: I am, Keith.
Keith: We would probably approach that slightly differently, and I’ve been a litigator for
a long time. And I’ve had to learn some different terms. But the idea is, support
for both parties.
Brad: Are there actually other terms used, other than maintenance?
Keith: We don’t ever talk about custody or we rarely do. We emphasize parenting time.
We may use the term “residential parent” because, as a practical matter, the kids
are going to probably spend more time in one household than the other. But we
recognize that the issue is, more often than not, the amount of time that each
parent gets to spend with his children, and not so much the issue of exactly where
they happen to sleep on any given night.
And we also allow the mental health people, the coaches, to have a big, a large
share of the participation and connection with children, as you would in
mediation. Sit down with the parents and talk to them about children-related
issues. And then, of course, obviously, it’s like any case. The lawyers have to
ultimately put it into some form that the court will accept. But we get a lot of help
from the coaches in that regard.
Brad: I’m fascinated by what you just said about not using the term “custody.” Is the
term “custody” used in agreed orders that are ultimately entered by the court?
Keith: If we are forced to use the term “custody,” we will. But we typically talk about
joint parenting or residential–if you want to use the word “custody.” But we can
just say the residential is mom and dad has parenting time, blah, blah, blah. And
custody just kind of gets peoples hackles up. It immediately gets the fight attitude,
it brings it to the forefront, which is what we’re trying to avoid. As a mediator, I
can tell you that the label that you call a final arrangement, with regard to the
children, is essentially irrelevant. It’s all about, can the parents deal with each
other or not.
And I do an awful lot of post-divorce mediation where the parties say they have
joint parenting arrangements, and I ask them how they communicate with each
other and they tell me they don’t. Pretty hard to jointly parent when you don’t
communicate. So, we spend a lot of time analyzing the ability of the parties to
deal with each other and talk about that a lot because it’s very important for the
Brad: Is the term “child support” used as well?
Keith: Oh, sure. Again, we’re not necessarily stuck with the guidelines like a judge might
order. We might do something creative with child support. We might do
something. I had a case one time where, in fact, it was with Judge Bruce. He and I
did the first collaborative case in Winnebago County.
Brad: Back when Judge Bruce was practicing?
Keith: Back when he was practicing. And my client agreed to some really unusual
alternative living arrangements, so that his daughter could graduate from high
school and stay in the school district. And that would never have been able to be
pushed in court. No judge could order such a thing.
Brad: Can I ask what those were?
Keith: He lived in his buddy’s basement for a year because he essentially was able to that
without having to spend a lot of money. And there wasn’t enough money to go
around and that kept the family in the house.
Brad: Kudos to both mom and the dad in that situation.
Brad: Any downsides to the collaborative law process as opposed to full-fledged
Keith: There are lawyers who criticize it because they suggest that, perhaps, there might
be some issues of entering into a contract with other clients and so forth. But we
don’t get a lot of complaints. The Legislature is kind of dealing with the
collaborative issue right now, because the Uniform Collaborative Law Act is in
the Illinois Legislature as we speak in the form of a bill, which we hope will be
And it spells out all the ethical and legal requirements of the collaborative
process. You might be interested to know that the collaborative process is
available in several European countries. Very much so in Canada. It’s in all 50
states. The Uniform Collaborative Law Act has been passed by a number of
states, and it is in the process of being passed by, or hopefully being passed by
others, including Illinois. We’ve worked through most of the bugs. The
downsides, I suppose, you could say a downside would be that if you can’t reach
an agreement, the parties have to go get their own lawyers. How are we doing?
Brad: We’re doing just fine.
Keith: And that could cause some additional expense, but in the advantage of the
collaborative process from an expense standpoint is that when I’m working on
your case as a collaborative client, I’m only working on your case. I’m not up at
the courthouse waiting for a judge or some other lawyer or whoever it might be.
So, we can keep the fees with what we think is reasonable. Compared to a big
litigation case where it can easily get out of hand.
There’s some suggestion that the parties can have difficulties with the issue of
having to go get other lawyers. We don’t do formal discovery in the collaborative
process. So, if somebody came along and wanted to completely defeat the process
and be entirely dishonest, and if he was a pathological liar or something like that,
it’s possible that there might be a hidden account or something like that, but that
can happen in a litigating case, too. So, I don’t find there to be that many
Brad: I noticed, previously, you mentioned a number of specialists outside of the
attorneys. The financial specialist, the parent coaches, the child specialist. Does
that seem, initially, like it would be quite expensive in comparison to the litigation
process? Is it?
Keith: Well, we delegate some of the things that lawyers have always done to some of
these other specialists. And frankly, their [hourly rates are substantially less than
Brad: That’s good to know.
Keith: So, if you make me do all the financial stuff, you’re going to pay my hourly rate
for the financial stuff. The financial expert might not change the same hourly rate
that a lawyer might. So, you can save some money that way.
The coaches, typically, are not charging the same hourly rate as lawyers, either.
So, their work is maybe economically more affordable. And one of the functions
that the coaches serve in a typical divorce case, one party wants it and the other
party may not have even been aware that it was going to happen. And the coach
helps them get through that process much better than a lawyer can.
Brad: And coaches are, as a rule, assigned in the collaborative law process, is that
correct? For both parties?
Keith: We request that the parties at least see a coach a couple of times. And if they
choose not to have one after that, then that’s their choice. But we think the process
works more smoothly when we’ve got other professionals involved. We
communicate with each other. We all sign releases so that we can communicate
among ourselves. And a coach might, very well make a suggestion that we stay
away from a certain area that a party is not ready to talk about or something like
that. It’s all very inclusive. The coaches let us know what’s going on and we let
them know what’s going on.
And sometimes, they spend more time with the coaches than they do with the
lawyers in these stages because they need to.
Brad: I generally approach my practice of divorce law, I try to be pretty collaborative,
although I’m not a collaborative attorney. But let me give you an example. Say it’s
a Wednesday afternoon. The case has been going pretty decently well. The parties
are both being reasonable. Me and the opposing counselor are both being
I get a call at 4:00 on a Wednesday afternoon. My client says to me “Hey, my
husband just threatened me with a knife or hit me,” or something like that. And
obviously, my instruction to that person is get an order of protection. Go into
court the next morning and protect yourself because we’re at a crisis stage. What
do you do in the collaborative law process if and when that happens?
Keith: Well, if we’re talking about domestic violence, I’m not sure I’d treat it much
differently than you do. But if I think that it’s something that can be helped by
suggesting that they spend some time with their coach, then I will do that. If it’s
something that I think can be solved by the four of us, meaning the parties and
their lawyers sitting down and having a conversation, I would do that. But I would
never compromise safety issues for that purpose.
If it’s a real safety issue, then you have to use the safety protocols that you would
always use. And if an order of protection is appropriate, that may very well be the
end of the collaborative process. But it’s like mediation. We’re not supposed to
mediate with people where there’s a domestic violence issue or a mental health
issue or a substance abuse issue. And we have to watch those same things in a
Brad: So, in an emergency situation like that, it simply might be the end of the
collaborative process because they need to have court intervention to protect
themselves? Is that right?
Keith: There is an exception in the participation agreement for emergencies. And, if
somehow, it turned out to be an emergency that could be resolved between
everybody and there was no safety issue, there’s nothing to say the parties couldn’t
come back to the collaborative process. But I find it hard to believe that within an
existing order of protection, that would work out.
Brad: Sure. Well, I think we’ve covered the specialists, the children’s issues. The
process. How long does it usually take with the collaborative law process with,
say, children? If the parties have children to wrap up and finish in court?
Keith: Well, as you might imagine, the more issues you have, the longer it takes. But,
again, it’s still a little more efficient, because we can meet when the parties and
the lawyers are available and we don’t have to worry about a judge’s schedule.
And we can address the issues as quickly as parties can do so.
Sometimes, reaching an agreement takes a while. Sometimes, you need several
meetings to resolve whatever issues there are. Financial issues can take some
time. But, it’s like asking somebody how long will a divorce take? And the answer
is always, how much are you fighting about and how long is it going to take to
My experience with collaborative is that we have fewer fights and quicker
resolutions. The idea of controversy is typically something that the parties don’t
want. So, you see the spirit of compromise a lot more generally in collaborative
cases and the parties come to the table with the idea of resolving their issues, and
that makes a big difference. If you earn less, maybe, if we have to put a timeframe
on it, frequently, substantially less, depending on the number of issues.
Brad: Have you noticed the kinds of parties in terms of the lengths of marriages? That
people come to you for the collaborative law process. Has it worked better when
there’s been a long-term relationship? Has it worked better when there’s been a
two or three-year relationship? Or is there no statistic based on your observation
that you can recognize?
Keith: I’m not so sure. I haven’t sat down and tested statistics, I can tell you that. Most of
the people who are attracted to this process have been married longer. There is a
personality type that is attracted to the process. And those people, quite frankly,
are easier to represent. They have the attitude of resolving disputes rather than
beating up on their former spouses if that’s the case.
But that can be a short-term marriage or a long-term marriage. Sometimes,
pregnancy is a concern. There are people, particularly people who have
substantial marital estates, frequently have no interest in going to a courthouse
and airing all their personal issues in public. And this process affords them an
opportunity to avoid that.
Brad: Well, Keith. I really appreciate your time this evening. Thank you for your
insight. I know that, just from talking to other attorneys in town, that the
collaborative law process is something that people are very interested in and it’s
certainly has decreased a lot of tensions in some divorces.
Keith: Well, we’re hoping to get the word out because it’s still in its infancy in Illinois.
I’ve been doing it for six or seven years. And it’s only been in Illinois for a little
more than 10 years. So, I believe that, once the general public is aware that it
exists, we’re going to see more and more of it, because, as you know, Brad, when
we go to the courthouse, we see that they’ve got plenty of work.
We don’t need to be bringing them any more unless we absolutely have to. And
most people, I’ve never seen the positive attitude at the end of the case, in the
litigating case that I have of being able to [inaudible 44:51] collaborative case.
A friend of mine in Chicago says they’re in the case [inaudible 45:01]
Brad: Well, thanks again, Keith. I appreciate your time.
Keith: You’re welcome.
Brad: Thanks for tuning to Divorce Talk Radio. Every Tuesday at 8:00 p.m. See you