Call it the Calvert County Canine Custody Case.

As they headed toward divorce, Gayle and Craig Myers had only one bone of contention: Who would have the right to keep Lucky, their 16-pound gray-black Lhasa apso.

Under Maryland law, family pets — unlike, say, children — are treated as jointly owned marital property and sold if the divorcing couple cannot agree on who gets to keep them. The parties then split the proceeds of the sale.

But the standard resolution did not seem right to retired Prince George’s County Circuit Judge Graydon S. McKee III.

The judge, presiding over the limited-divorce proceeding by special assignment, decided on his own last month that Gayle and Craig, who have no children, would split custody of Lucky. The dog will alternate spending six months with each party; Gayle’s turn began on July 1.

McKee rendered his decision after hearing testimony from Gayle, who lives in Alexandria, and Craig, who resides in Dunkirk, Md.

“It was very clear that both of them love this dog equally,” McKee said. “The only fair thing to do was to give each one an equal chance to share in the love of the dog.”

Had either side objected to his unusual resolution, McKee said, he would have applied the law and might have ordered the dog put in the care of a trustee, sold and the proceeds divided.

The judge, 72, said he has owned dogs but that his affection for them did not enter into his decision.

“I really applied good old common sense that my grandmother taught me when I was a little kid,” said McKee, who retired in 2007 as chief judge of the Seventh Judicial Circuit, which includes Calvert County. “Treat other people the way you would want to be treated if you were in that situation.”

McKee’s resolution drew praise from Peter Petersan, litigation director of the Humane Society of the United States. Ordering a sale of the dog “clearly would not have been a just result in this situation” when you have two loving owners, Petersan said. “The judge thought of everyone involved, including the dog, which is fantastic.”

Animal-law attorney Jan Berlage said McKee recognized that dogs and other pets are “family members” and not mere property.

“The judge seems to be taking into account that the common law is changing,” said Berlage, who chairs the Maryland State Bar Association’s Animal Law Section. “Pets have a different role in our lives than farm animals that are fungible and can be replaced.”

Berlage, who said he was speaking for himself and not the section, is with Gohn, Hankey & Stichel LLP in Baltimore.

Attorneys for Gayle hailed what they characterized as McKee’s humane compromise in not requiring the divorcing couple to part with their beloved pet.

“This judge understood the role of pets, and particularly dogs, in the fabric of the American family,” said attorney James S. Maxwell. “The judge appropriately elevated the status of a dog to a member of a family.”

But Maxwell added that only a similar ruling by Maryland’s top court or a change in Maryland law will ensure that McKee’s decision to treat dogs as more than marital property takes root in Maryland.

“Until we have an appellate ruling or legislative change, it’s just one judge’s opinion, one judge’s attempt to do the right thing,” said Maxwell, of Maxwell & Barke LLC in Rockville.

Craig’s attorney, Mark W. Carmean, said McKee’s ruling made for “a rather unique case, and certainly one I’ve never had before.”

Carmean voiced doubt that the judge’s order marks the start of a trend toward pet-custody rulings.

“We have a court system that deals with a lot of child-custody cases,” said Carmean, of Lamson, LeBlanc & Carmean LLC in Prince Frederick.

Treating pets in a similar fashion “would take up a lot of judicial time and energy,” he added. “I will leave it to family-law scholars to determine if you can have a visitation schedule for an animal.”

Prior to McKee’s order, Gayle’s lead attorney had offered two alternatives to selling Lucky and splitting the proceeds. The first was a coin toss. Under the second, Gayle and Craig would write on separate sheets of paper the amount they would be willing to pay for Lucky, with the high bid winning custody, said the attorney, Brian M. Barke, Maxwell’s law partner.

“Our client just could not bring herself to have a trustee take her dog and sell her dog,” Barke said.

He added that McKee’s solution was unconventional but correct.

“I don’t think what he did is entirely legal,” Barke said. “He did the right thing.”

Kristin and Rob McCollum are sitting outside at the Highland Park Village Starbucks, which my wife describes as “magnificent for people watching.” They’re chatting and laughing with me about how they met—at an improvisational comedy workshop.

“I’m kind of confused,” I venture, attempting to turn serious and failing miserably. “Why did you two get divorced?”

I’m not sure what’s more ironic—that we’re sitting in the heart of the Park Cities, home to some of the most mythically bitter divorces in the Western Hemisphere, or that Rob just told me that now that he and Kristin have split, they’re better friends.

What at first seems ironic, though, is actually a growing phenomenon: The process of legally ending marriages in a non-confrontational, openly communicative way has ballooned both nationwide and locally since 2001, when Texas became the first state in the union to adopt a so-called collaborative law statute.

This process is formally called a collaborative divorce. Because all such divorces are handled in private, there’s no court record of how many marital splits have been engineered by the collaborative process. There is, however, one telling statistic: In 2001, just a handful of people belonged to the Collaborative Law Institute of Texas, a Dallas-based nonprofit that helps educate the public and professionals about collaborative divorce. Today more than 500 Texans do. In comparison, the Texas institute’s global counterpart—the International Academy of Collaborative Professionals—had 3,000 members in 2007.

Still, there seems to be an inherent contradiction here. What is Texas—the land of concealed handguns and redundant mock-Brazilian meat parades—doing leading the way in something as touchy-feely as ending marriages peacefully? And how can old Texas legal dogs—who like their rib-eye bloody and their opposing counsel bloodier—learn to roll over and play nice, and to encourage combative spouses to do the same?

Avenging Angel Redeemed

When it came to being a junkyard dog, family law attorney Janet P. Brumley says, she used to get down and dirty with the best of them. In her book, Divorce Without Disaster, she admits to having had the instinct to protect others all the way back to when she was a child at her school’s playground. Back then, Brumley was something akin to an avenging angel.

But in 2001, she came to the realization that all of her avenging might have actually been doing more harm to her clients than good.

“If someone walks into my office, they want to hurt back, and they think it will benefit them,” she says. “They think they’ll feel better if 845 people know he cheated on her. But they don’t. In litigation, we follow all their worst instincts. In collaborative law, we look at the goals.”

Texas courts offer three options for couples wishing to split: They can litigate. They can mediate (where a lawyer serves as a go-between and the couple never directly communicates, except through lawyers). Or they can choose collaborative law.

Collaborative law involves lawyers chosen by each side, at least one neutral financial consultant, and one disinterested counselor or mental-health professional. Family law attorney Carla Calabrese says it’s important to have these neutral parties involved. Adding people to the process who are working on behalf of both clients equally can help temper the distrust that’s present in all divorce proceedings—collaborative or not.

“Most of my cases involve affairs. When you involve an affair, people start distrusting quickly,” Calabrese says. “In a collaborative case, we’re not fueling the fire.”

Each hired hand helps guide the process to a structured conclusion. In this option everyone talks, everyone works in one direction, everyone plays nice. At each “team meeting,” each member is supposed to have within eyesight a list of “Expectations of Conduct” to which all participants must adhere. This list includes refraining from discussing the past and only focusing on fixing problems, not the blame.

And here, within the group dynamic, something happens. The outrage that one spouse carries toward the other, for whatever misbehavior they committed, is blunted by the structure of the group and what it’s trying to do in bringing about a divorce with the least amount of damage possible.

“Whenever we had our team meetings, it felt like we had people doing all the work for us,” says Kristin McCollum, 40. Adds Rob, 38: “I never had to think about whether we were getting screwed.”
In litigated divorces, lawyers aggressively fight for their own clients and, if need be, depose schoolteachers, babysitters, and on and on. In collaborative divorces, lawyers remain advocates for their clients while also sticking to the overall goals established in group discussions. Those goals are set early by the spouses, with the guidance of the group. Another contrast is that both sides must share all the information they have with the group.

It’s common for lawyers from different firms to team up to form a collaborative practice group. A couple that chooses to hire attorneys that are part of such an alliance may start a step ahead, Calabrese says. They won’t have to waste time arguing about the process; the lawyers will have already established a standard procedure.

“You get on the same page in terms of the process, so that you can roll up your sleeves and work on the problems for the couple,” she says.
And there’s one more advantage, as Flower Mound attorney Phillip M. Herr learned while taking part in a mock collaborative divorce workshop in Brumley’s office: lawyers must listen more and speak less like lawyers and more like, well, old softies.

Recently, Herr played the role of an advocate for the male half of a splitting household and, in the process, stumbled over several verbal land mines during the mock proceedings. He used the phrase “custody” when he should have used “living arrangements,” for example. Rather than mentioning “child support,” Herr should have said “budget” instead. He also referred to his hypothetical client by his title (“Doctor”), instead of by his first name.

The idea, as Brumley explains, is to blunt the edge of some of the legal terms that attorneys lob freely in courthouses without regard to their clients’ feelings.

“There probably are lawyers who aren’t cut out for collaborative law,” says Herr, 37. “I’ve heard some lawyers say collaborative law is for the lawyers who are tired of going to the courthouse and litigating.”

He adds that when it comes to divorce, one flavor does not fit all.

Dallas lawyer Mike McCurley—who handles divorce cases in litigation, mediation and collaboration—concurs. “It’s like going to a carpenter who only has a hammer, and they’re going to put you into a process that might not be right,” says McCurley, who practices at Dallas-based McCurley Orsinger McCurley Nelson & Downing.

As McCurley speaks, something occurs to me: If at least one spouse is mad enough to end the couple’s marriage, how can there be a chance that the divorce will involve everyone politely sitting down and chatting?

For one thing, he replies, it’s people who want privacy and can work together with a degree of control who mainly seem to opt for collaborative divorce. (Such couples are often highly educated and own or run businesses.)

A major selling point to them is the cooperative structure that collaborative law offers. The scheduled meetings also allow decision-makers to keep their eyes on the ball, versus being hung up in court for days at a time.

And, the dirty laundry stays out of the courthouse.

“You let them know they’re secure. They both have, in Texas, a lawyer of their choosing to protect their rights and from anything bad happening,” McCurley says. “That’s a change in the communication paradigm from the traditional divorce process.”

What’s more, some lawyers say, it’s less likely that a divorce will become a nasty, drawn-out process in collaborative law, compared to what could happen in litigation.

Still, that doesn’t mean it’s easy with everyone sitting down.

A study by the Phoenix-based International Academy of Collaborative Professionals surveyed lawyers and other professionals involved in 107 collaborative Texas divorces and found the divorces to be “difficult” to “very difficult” 39 percent of the time.

And some cases have no hope of ever being resolved anywhere but a courthouse.

“There are cases that are required to go to court, because they don’t fit the collaborative process,” Herr says. “There’s so much animosity, they need some way to vent their frustration. Collaborative law isn’t a panacea, but it’s good to have a venue to work these things out privately, rather than airing out their laundry in public.”

Considering the Children

Allow me, please, to take a quick personal detour. I can’t say I remember much about my parents’ divorce, which occurred in the mid-1970s, when divorce really seemed to catch on. At that point collaborative divorce was about 15 years off in Ohio, where we lived.

The split-up was messy, though, like some kind of twisted country song. I was 9, and I thought I was to blame. A sheriff’s deputy, complete with a pistol in his holster—I can still see him—showed up at the house and delivered the court papers. I wondered if he was going to arrest or shoot Dad, who fought the divorce.

A few weeks later my sister, Cherie, and I were called into a judge’s chambers. I hadn’t ever seen a courtroom before, let alone the inside of a judge’s office. I recall he wore his black robe when he asked my 11-year-old sister: “Who would you like to live with, your mother or your father?”

“What kind of choice is that?” I wondered to myself, panicking. “Right here, right now, we must both decide who we love more?”

Cherie chose Mom. I stuck with Cherie. My brother Steve, who was 18, avoided the chambers because he was legally an adult.

Within a year we’d moved on to a new home, new friends, and a new school. I was called in to meet the guidance counselor, a courtesy my grade school extended to all its new arrivals. But I had no idea that this policy existed; I just knew I’d been called into a stranger’s office again. Did they know my parents divorced?

Shortly after the counselor introduced herself, I started bawling hysterically and couldn’t stop. The poor counselor could only look on and hand me Kleenex after Kleenex, and wonder what had happened.

Protecting the kids: that’s the big one that often sells divorcing couples on the collaborative process.

In the case of Rob and Kristin, their daughters Lily and Manon were ages 4 and 6 at the time of the divorce a few years ago.

Kristin had decided that marriage didn’t suit her. But she didn’t want a litigious, messy divorce. She talked about it with a friend of hers, who mentioned the collaborative option.

Rob admits he was surprised by Kristin’s request for a divorce, but he wouldn’t stand in her way. They just wanted a quick split that would be best for their children and for each other.

Though divorced, they attend church together with their daughters every Sunday. (Kristin still lives with the girls in the family home in Dallas’ Old Lake Highlands neighborhood, while Rob is renting in Lakewood.)

The couple shares custody of Lily and Manon every other week, but Kristin still gets to see the girls every morning, as Rob prepares for his relatively new job as a host of Good Morning Texas on WFAA-TV (Channel 8). The children are now 6 and 8 years old and feel fine about things, both Kristin and Rob say.

Because of their willingness to talk, Rob and Kristin have become sort of the Dallas poster children for collaborative divorce. For example, they’ve spoken to family court lawyers at the Belo Mansion about their experience.

Even so, the notion of a relatively baggage-free divorce truly puzzles me—perhaps because of my own baggage. So I continue to pelt them with uncomfortable questions: Isn’t it awkward when you change custody?

“Sure, I miss them sometime,” Kristin concedes. “But now, with Rob’s new schedule, I get to see them every day.”

As part of the collaborative process, the couple worked out an entire parenting plan, dealing with everything from college to piercings to tattoos.
And, if an unexpected issue crops up, Rob and Kristin and their teams have agreed to meet to work it out.

Though one family has ended, you might say, a new one has been formed in a kinder, gentler way than traditional divorce. If this sounds different from a judge dividing everything in half—or calling the kids into his chambers—it is.

Religious Jews, like Catholics, face a unique problem when divorcing: a civil divorce alone does not release them to remarry. The parties require a release by a properly constituted religious body before they are free to enter into another marital relationship. It has been the conventional wisdom in the past that these are matters of no concern to the civil courts; that the doctrine of church-state separation forbids intervention in these areas that are essentially of a religious nature.

A Jewish divorce is called a “get.” It can be applied for during the pendency of a civil divorce or after a civil divorce has been granted. It is a simple document , consisting of twelve lines, that must contain the signatures of two witnesses, and attest to the termination of the marriage. It states that the scribe who wrote the document has been authorized to prepare the document by the husband. It is delivered to the wife by the husband or his agent in front of a Rabbinic Council called a Beth Din. It must be voluntarily delivered by the husband and voluntarily accepted by the wife. Until it is executed and delivered to the woman she is not free to remarry. If she does not receive a “get” and if she were to remarry, her children would be considered illegitimate, mamzerim, whose marriage to other Jews is prohibited. She could not get an Orthodox or Conservative rabbi to perform the ceremony if she did wish to remarry. If she were to remarry somehow, under Jewish law the second marriage would be considered void, and the couple’s sexual relations an act of adultery. If she were to later obtain a “get,” she and her second husband still could not legally marry. Only her husband can authorize a scribe to write the divorce and authorize the two witnesses to sign the document. He, or his agent, must deliver it to the woman. If he refuses, she may find herself an “aguna,” permanently unable to remarry.

Collaborative Law offers an opportunity for a couple to deal privately and respectfully with the subject of a religious divorce. Because Collaborative Law requires that the parties explore and respect each other’s goals, values and interests, it provides the perfect forum for dealing with an issue that would be ignored in the litigation model. Religious Jews facing divorce will find the Collaborative process hospitable to this and other issues that are unique to their faith and lifestyle.

1. Physical abuse in a relationship is not something an abused partner has to live with.
2. Emotional abuse (which, by the way, often turns into physical abuse) is another relationship stressor.
3. Alcohol or drug abuse by one or both of the partners is not something that leads to a good marriage.
4. If one or both partners are cheating on the other, marriages rarely work.
5. If there is a partner who recognizes that he or she is gay or lesbian, that can lead to the end of a marriage.

This list comes from a recent article by preeminent divorce attorney, Lynne Gold-Bikin.

Financial professionals are trained in the Collaborative Law process and join the Collaborative team as neutrals – they will not be on your side or your spouse’s side. Their role is to help you understand enough about your finances to make informed decisions.

The neutral Collaborative financial professional can help you and your spouse:

• Gather and organize required financial information
• Verify information about your estate
• Develop realistic financial goals for the future
• Become educated about financial matters related to the divorce
• Prepare future household cash-flow plans and projections
• Prepare plans to meet current and future expenses for children
• Develop settlement options and analyze the pros and cons of different ways to resolve the financial aspects of your case
• Provide specialized tax calculations and analysis
• Identify separate-property or other financial claims
• Help with placing values on businesses, real property or other assets of the marital estate

Still in denial about the divorce;
So angry at the other spouse that a four-way meeting would be unproductive;
Unable to adhere to guidelines for collaborative communications (e.g., constantly interrupting or engaging in namecalling);
Afraid of the other spouse because of his/her abusive or domineering behavior; and/or
Unwilling to share all necessary information.

By focusing on problem-solving—instead of blame and grievances—there’s an opportunity to strive for respectful results. Full disclosure and open communications assure you cover all the issues in a timely manner. And since you settle out of court, there’s no wait for the multiple court dates necessary with conventional divorce.

Control
In collaborative, you and your spouse agree not to go to court. This gives you and your spouse control of the process and outcome versus litigation, where a judge makes the final decision.

Collaboration
Instead of the win-lose court setting, the entire collaborative team ensures that both spouses work with each other, not against each other, towards mutually beneficial solutions for critical issues.

Communication
One barrier in litigation is a lack of effective communication between spouses. In the collaborative process, spouses learn a framework for effectively communicating their concerns and goals.

Alex Crookes knew he was in for a divorce with a difference the minute he walked into a lawyer’s office with his ex-wife, Lynne Maclennan.

The couple instinctively sat at opposite sides of the table, until one of their lawyers, trained in the relatively new concept of collaborative family law, set a more comfortable tone for the talks.

“The first thing the lawyer said was, `Sit next to each other,’” says Crookes, 37.

So the Toronto couple, who’ve been together almost 15 years, share a three-storey house and two young children, plotted out their new future – and separate lives – over the course of two “very difficult” meetings.

“It was very nonconfrontational,” says Crookes, who is in the midst of moving into a new home this week, a couple of blocks from his 8-year-old son and 5-year-old daughter.

“The lawyers were there to make sure that nobody was screaming or throwing coffee cups at each other, but that seemed to be their primary role,” he says. “It was up to us to talk about what we were scared of, what we were worried about, what we wanted to achieve.”

Maclennan and Crookes once questioned whether the cost, about $6,000 each, was worth it.

“We were laughing because we went to both meetings together, we drove in the same car, we had lunch together afterward. We said, `Do you think we really needed the lawyers?’” says Maclennan, 40.

“But really we did because (the collaborative process) forced us to move things along rather than languishing. There were some things that gave me a different perspective.”

Collaborative law was first introduced in Minneapolis in 1990s and made its way to Canada a decade later as a much-needed alternative to ugly court battles that could cost a fortune and leave the couple, and their kids, scarred for life.

Since then Toronto has become a “hotbed” for collaborative settlements, divorce experts say, and it’s growing in popularity right across Canada. In 2000, just 75 Canadian lawyers were trained in collaborative practice. Today they number more than 2,800.

Collaborative practice puts the separated couple in the driver’s seat, or, more appropriately, seats. While their lawyers are always in the room to offer advice or give guidance, the couple sort out for themselves how they want their life to look post-divorce, where the kids will live and how much of the time, what the primary breadwinner will pay in support.

Nearby are also financial and family counselling experts who can help clear away unexpected hurdles and get the two sides back on track if things start going off the rails, without the “bottomless pit” of $300 to $600 per hour lawyer fees needed to mount a court challenge.

Thanks to the growth in collaborative practice, as well as mediation and then arbitration as last resorts if an agreement can’t be reached, just 2 to 3 per cent of all divorces now end up in court, divorce experts say.

“I think as divorce rates increased and lawyers became better educated in family law, they learned about the pain and the suffering, and that slogging it out in a courtroom is a very hard way to make a living,” says Philip Epstein, who is trained as a collaborative lawyer but prefers mediation. “To be in a profession where it’s all about winning and losing is just too painful for all concerned.”

Family law lawyer Sheila Kirsh, one of the founding members of Collaborative Practice Toronto, an umbrella group for some 81 lawyers, 17 family counsellors and 15 financial experts, did litigation for 20 years until one final court battle made her think differently.

“At the end of the day, I won, but I wasn’t feeling very satisfied with what had happened. I thought there had to be a better way than going through three years of litigation, a way to have families remain intact – yes, they’re going to have separate households – with both still willing to go to their children’s weddings.”

Divorce lawyers have had to become especially “creative” since last fall because of tanking stock prices, pension plans and house values that made it almost impossible for experts to come up with net worth calculations and determine support and the split of assets. The ongoing uncertainty has forced many lawyers to look at more open-ended agreements that can be revisited in a few months, or years, when the economy rebounds. Collaborative law lends itself especially well to that, says family law lawyer Judith Huddart.

Epstein spent decades battling it out in court, but now settles 98 per cent of his cases through mediation. Few go the next step, arbitration, in which an independent person looks at both sides of the case and makes a binding judgment.

Epstein is also trained in collaborative law, but believes it works best for couples who “are not overwrought or not overly emotional about their divorce and can treat each other as equals.

“I believe that the system works better if the lawyer has reasonable control over the process (mediation.) Collaborative law believes the client should be in control. One of the advantages of a lawyer is that I’m objective about the outcome.”

Everyone agrees the key is staying out of court.

“What’s ruinous for people is if they settle too late. Even if they settle in the middle of a trial, they’ve spent all the money,” says Epstein.

Just last week, he helped settle “one of the most difficult (divorces) I’ve ever seen.” Lawyers had already amassed “a room full” of documents, anticipating a court case.

He warned the couple repeatedly that litigation would take about 10 days and cost them at least $100,000 each. And he stressed the outcome could be highly unpredictable, depending on how the judge applied divorce case law and “spousal support guidelines” that give ranges for how much support should be paid, depending on income and length of the marriage.

In mediation, he stressed, you get to choose your own “judge.” In court, one is assigned to you.

At the end of that reality check, Epstein gave the couple a day to try reaching a settlement through mediation. They had a deal by 7 o’clock that night, at a cost of about $7,500 each.

“It’s a bottomless pit if you start preparing for a trial,” says Epstein, which is why he recently wrote a paper for judges, urging them to talk money at every pre-trial conference – “they’re shy about that” – so that couples are well aware how much they are paying their lawyer per hour, how long the case might take and the risk of having to pay court costs if they lose.

“The right time (to settle) is when the parties are emotionally ready to actually want to do business. The problem with matrimonial law is that it’s sometimes about vengeance or hurt or the inability to let go. Those are poor candidates for early mediation (or collaboration.)”

Maclennan cautions that collaboration isn’t a cakewalk – and since neither had had an affair or held on to some seething hatred, their separation was less complicated than many. But still, she and Crookes “had to put personal differences and desires aside to a large extent” and work hard toward their common goal of “putting the kids’ well-being first.”

“In order to do this we had to respect each other and learn to communicate better. It has been hard but, in the end, it’s definitely worth it.”