Collaborative Divorce: Another Alternative to Court

Collaborative divorce

Collaborative family law is another method to resolve a divorce that focuses on avoiding  court. It is kind of like a step between mediation and litigation: You and your spouse make a formal agreement not to take the divorce to trial, and the attorneys focus on utilizing cooperative instead of adversarial techniques to reach an agreement.

Like mediation, a collaborative divorce requires much higher levels of cooperation between you and your spouse. You will both retain separate, specialized collaborative law attorneys to advise you throughout the process; however, an agreement is signed stating they must withdraw from the case if it goes to trial. This stipulation encourages parties to reach a mutual agreement, because they will have to start the entire divorce process over if they end up going to litigation.

Instead of utilizing a neutral mediator to guide the negotiations, you agree to let the attorneys facilitate along with a cast of hired experts. These usually include a financial planner, mental health professionals, child specialists or any other relevant expert to lend their input toward agreeing on a fair settlement.

The idea is to create a team mentality toward settling the divorce, instead of both sides gunning for everything they can. The oppositional approach of litigation creates a scenario where the opposing party becomes the enemy, whereas collaborative divorce focuses on open communication, honest exchange of information and considerations of the best interests for everyone affected by the divorce.

Collaborative divorce attempts to remove the conflict and create a situation where a mutually acceptable settlement is reached, all the while taking into account the priorities of all family members. This creates a better situation later on down the road, particularly when children are involved and you must maintain a working relationship with your ex in the future.

While collaborative divorce can be beneficial for reaching a settlement outside of court, there is no guarantee you will avoid litigation. This could mean that despite all of the time and money spent on collaborative specialists, you will still have to go through litigation anyway. You will need to completely start the process over, including finding a new attorney.

Like any other process for resolving divorce, you must weigh what method will work best for your particular situation. Here is a short list of some advantages and disadvantages for collaborative divorce.

Pros of collaborative divorce

  • You and your spouse make the decisions for you and your family, not a judge, court commissioner or attorney.
  • Focuses on creative solutions to meet the interests of everyone in the family rather than what someone is “entitled to” under the law.
  • Addresses issues that the courts may not have the time or ability to address. For example, if unfaithfulness was an issue, the parties work with the coaches to move past trust issues.
  • Confidentiality agreements are executed with the coaches, child specialist and financial specialist. This way, you can feel comfortable expressing your concerns without fear that the statement will wind up in court.
  • No need to engage in discovery as there is a voluntary exchange of information.

Cons of collaborative divorce

  • Everything is out in the open, so if you have a desire to keep issues private, this is not the process for you.
  • It can be a costly process. The typical team includes a financial planner, three mental health professionals (two coaches and one child specialist) and two attorneys. With that said, it is still usually cheaper than a fully litigated trial and appeal.
  • The process moves at the pace of the slowest person. Everyone must move at his or her own pace when it comes to processing feelings and issues related to the divorce, so if one party is eager to “just get it done,” you cannot do that until the other person is ready.
  • This is about resolution and reaching agreements, so if you want to “win” or if the other side is expecting to “win,” then it is unlikely that the process will work.
  • It may not be appropriate in cases involving extreme domestic violence or extreme mental illness.
  • If either party decides to exit the process, then each must fire his or her attorney and start over with a new attorney.
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