Collaborative Divorce 101

Why This Marital Split Pays Off

Collaborative Divorce 101
June 2, 2014

Collaborative divorce is a relatively new alternative to traditional divorce court proceedings. It is for those who are in general agreement on some issues, but have enough significant differences that they cannot negotiate a final agreement by themselves. You must believe that a settlement can be reached without the need for an adversarial legal process – and the added cost that the ensuing rancor produces.

Note that this arrangement is different from mediation, where there is a neutral third party producing decisions. You retain control in collaborative divorce, instead of making your case and hoping for the best outcome.

You and your soon-to-be-ex-spouse each retain attorneys that are trained in the collaborative process, and the four of you sign an agreement outlining the negotiation terms. The agreement will outline the collaborative nature of the negotiations, how information is to be shared, when meetings will take place, how other experts may be introduced (such as a CPA, professional appraiser, or child custody expert), and under what circumstances the collaborative effort might end, among other things.

Assuming an agreement is reached, the result is normally a straightforward, uncontested divorce. Divorce papers are created and filed, requiring only a judge's approval.

If the effort does fail, you will each need new lawyers for traditional divorce proceedings. Collaborative attorneys do not handle adversarial divorce cases; the initial agreement should verify that.

Collaborative divorce has a number of advantages, such as:

  • Short-Term Stability – The agreement sets ground rules and expectations, presumably making for a more stable and civil process.

  • Lower Expense – While it is not cheap, generally a collaborative divorce will cost considerably less than litigation.

  • Less Painful Process – A successful collaborative divorce is less stressful for all involved. It is far less traumatic on children, furnishing a valuable life lesson on how to handle conflicts effectively. What’s more, it will be easier for you and your wife to be civil to one another in the years that follow, making graduations, weddings and other family functions more pleasant for all concerned.

  • More Control – Instead of having a judge or mediator be the final arbiter, you have greater control over the outcome.

  • Quicker – Instead of waiting for divorce court openings, meetings proceed on your schedules. However, since there are no deadlines as with a court, this could backfire if any of the parties are irresponsible and choose to delay the process.

  • Simplicity – A successful negotiation produces simple, easily executed divorce papers.

However, as with any process, there are potential downsides.

  • Finding The Right Lawyer – Not only do you both need to find lawyers trained in collaborative law, you need to find ones with whom you feel comfortable working. If you have to replace counsel part way through, it tends to reset the entire process.

  • Failure – It may not work, and then you are stuck with collaborative expenses plus adversarial expenses. Go into it ready to negotiate and make sure that your soon-to-be-ex feels the same way.

  • Irresponsibility – Hiding information, not showing up for meetings, drug/alcohol use, or similar behavior from either party will torpedo the proceedings.

  • Payment – If you still have joint assets at this point, make sure you can agree on how the attorneys are paid. If you cannot do that up front, do not bother with a collaborative process – you are not ready for it.

Collaborative divorce is not appropriate for cases where criminal activity, abuse or domestic violence is involved.

In short, collaborative divorce is a way to reach a divorce agreement in a reasonable and civil way – but both parties must be committed to this process. If one is and the other is not, the process will likely fail, and you would have been better off with a more traditional adversarial approach.

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