What is Collaborative Divorce?
"Discourage Litigation. Persuade your neighbors to
compromise whenever you can. Point out to them how the nominal
winner is often a real loser - in fees, expenses, and waste
of time. As a peacemaker the lawyer has a superior opportunity
of being a good man. There will still be business enough."
Abraham Lincoln, 1850
Collaborative divorce is a new and exciting development in family
Let's face it - divorce is seldom easy. Divorce requires us to
make life-altering decisions at a time when we are most emotionally
vulnerable. Often, the last thing we need is a "blood and guts"
court battle over who gets the silverware. Collaborative law is
designed specifically for couples who are looking for a calm, educational
and professional alternative to divorce litigation.
Collaborative divorce gives the parties an opportunity to settle
their divorce without the oversight of the court. Unlike litigation,
collaborative divorce allows the parties to negotiate in a structured,
but non-adversarial environment with skilled legal counsel actively
assisting them. Similar to litigation, the parties involved in a
collaborative divorce each hire their own attorney. However, the
attorneys involved in collaborative divorce are specifically trained
in collaborative law and have settlement - not trial - as their
primary objective. Settlement remains the main objective because
the lawyers' continued employment depends upon his or her ability
to facilitate an acceptable settlement proposal. Failure to reach
settlement results in the end of the collaborative divorce process,
and an end to the attorney's employment in your case.
Collaborative divorce differs significantly from traditional, litigated
divorce in other ways. One example is the use of expert witnesses.
In a litigated divorce, the spouses each hire their own experts:
psychologists, forensic accountants, business valuation experts
and/or appraisers. The hiring of these experts, while valuable to
each party's case, results in significant expenditures of marital
assets toward the resolution of the case. In a collaborative divorce
the spouses agree, with advice of counsel, on which experts to hire
in order to decide the disputed issues. More importantly, the costs
of hiring these experts are shared by the parties rather than duplicated.
This economy of scale reduces the overall costs of the divorce and
leaves more money in the family's pocketbook.
Collaborative divorce is most appropriate for those clients who
wish to have an active role in negotiating their own settlement
while receiving the advice of skilled legal professionals.
| How does collaborative divorce differ
Collaborative divorce is very different from mediation. In mediation,
the parties completely control the direction of the negotiations.
A mediator cannot give legal advice - he or she is limited to assisting
the parties in reaching their own agreement. If a mediated agreement
is reached, the parties must then hire attorneys to draft the legal
documents for presentation to the court. In collaborative divorce
the process is more structured. Skilled legal professionals assist
their clients in reaching a settlement of all legal issues. Collaborative
lawyers can and do offer legal advice and opinions to the parties
during the negotiation process. Unlike mediation, collaborative
lawyers can finish the job - that is, prepare the legal documents
and present them to the court.
| Benefits of Collaborative Divorce
- Non-adversarial, cooperative environment conducive to settlement
- Preserves the integrity of family relationships
- Team approach where the family is actively involved in the process
- Reduced costs
The single most important benefit of collaborative divorce is the
creation of a cooperative environment in which communication is
open and the direction of the divorce settlement is in the parties'
hands - not the courts. Because the parties are actively involved
in crafting and understanding their own settlement, the collaborative
law process prepares the parties to deal with future conflict by
agreement rather than litigation. Instead of confronting your spouse
as an adversary, you face your spouse as a team member with a common
goal: settling the underlying issues and reaching an agreement that
you can both live with after the divorce is final.
Collaborative divorce usually costs less than litigated divorce.
By hiring one type of expert by agreement and splitting the cost
(rather than doubling up on these expenses), more of the marital
estate is preserved. In collaborative divorce, all of the negotiation
is done before any papers are filed with the court and the parties
are able to control when, where and how often they meet to negotiate.
In a litigated divorce, the papers are filed first and the court
dictates the timeline for settlement - or trial.
Bottom line: If you are looking for a more cooperative environment
in which to work out the underlying issues of your divorce and retain
more control over the process and expenses, collaborative divorce
is something to seriously consider.
| Drawbacks of Collaborative Divorce
The most significant drawback to collaborative divorce is either
party's inability to communicate with their spouse. Frankly, if
you do not feel that you can sit down face-to-face with your spouse,
even with a skilled legal profession