My prior blog article explained the various options available to spouses considering divorce.
This blog article addresses the pros and cons of collaborative divorce as one of those options.
Settling on Your Own: First, spouses who try to settle on their own can save a lot of money in legal fees. However, they likely will not be aware of all the issues that need to be addressed.
Unless the couple then meets with a mediator or each confers with an independently chosen attorney to discuss their legal rights and obligations as a divorcing spouse under the laws of the state in which they reside, problems may arise in the future that could have been addressed in settlement negotiations and resolved in a comprehensive written and signed agreement, and that can result in legal fees down the road that could have been avoided by having consulted with an attorney at the outset.
The Cost of an Attorney: Many couples fear the cost of consulting with an attorney. However, most attorneys will consult with a prospective client on a flat-fee basis for that initial consultation and that can involve hundreds, not thousands, of dollars, a small price to pay to be educated and informed.
Will an Attorney Cause More Contention Between the Spouses? There are attorneys who know nothing more than litigate, litigate, litigate, but, in this day and age, many attorneys take a more holistic and long-range approach to divorce that involves a more amicable, civil, and respectful process that seeks to preserve the relationship between parents who are getting divorced and who will allow the couple to plan their future without the attorney insisting that they do it his or her way.
The Cost of the Process:
Mediation vs. Collaborative Divorce: Mediation often costs less than the collaborative divorce process, but in most cases, mediation involves the couple sitting down (either in person or virtually) with their chosen mediator without attorneys being present. Some spouses are less knowledgeable than their spouse about the couple’s finances, and some spouses are less sophisticated than their spouse and that can be a disadvantage to the less sophisticated and knowledgeable spouse. Also, there may be an emotional or power imbalance between the spouses whereby one has historically, to one degree or another, controlled the other. Although a good, experienced mediator can address that imbalance, such a situation does not support a balanced mediation.is a voluntary process that a couple can pursue.
The Coach: You may ask why you need a divorce coach in the collaborative divorce process as that does increase the cost of the process so that you are not only paying for your lawyer but also sharing the fees of the divorce coach. As everyone knows, divorce is a highly emotional process for almost all people. Oftentimes there are emotional issues that present themselves as barriers to reaching settlement. The divorce coach through education, training, and experience can spot when those emotional barriers are interfering with the process and can address them appropriately with one or both spouses. Note that a divorce coach does not perform marriage counseling nor individual or couples therapy in the collaborative divorce process, but rather is present to keep emotions under control, prevent one spouse from overpowering the other, and generally makes sure the process moves ahead as expeditiously and economically as possible so that emotional issues do not bog the process down and so that the couple doesn’t go down rabbit holes arguing about past problems that one or the other (or both) may wish to air in the process but which only result in increased costs and a delayed outcome (which a spouse who really doesn’t want to get divorced) may use as a tactic to hold things up (sometimes foolishly but optimistically thinking that eventually the other spouse will change their mind about divorce).
What do Mediation and Collaborative Divorce Have in Common?
First, both mediation and collaborative divorce are private processes that are not open to third parties or the public in general. Courts are open to the public, so anyone wishing to attend court proceedings involving a couple in divorce can sit in and listen and observe what is going on (such as parents, siblings, friends, neighbors, employers, etc.).
Second, both processes are confidential, meaning that nothing said or revealed in the process can be revealed to a judge if the process should prove to be unsuccessful and the couple ends up in court. This allows each spouse to avoid the fear that offering something by way of settlement in meetings with the other spouse cannot later be uses against them if the couple should end up in court. This promotes a free flow of offers and suggestions for settlement without concern of being too fair hurting one if the process fails.
Third, both processes promote self-determination, that is, you and your spouse make decisions for your future and the future of your children. In court, it is the judge who makes those decisions based on how the judge determines the facts presented in evidence in court and how that particular judge applies the applicable law. In other words, going to court involves a loss of control over the process. This is an important factor for some spouses who want to control their own destiny. While you do not necessarily “get your way” in these out-of-court processes, you have a lot more input and control over the outcome than you would in court.
Benefits of the Collaborative Divorce Process:
First, mediators (even a mediator who is a family law attorney) should not be giving legal advice to the couple or either spouse. That is why it is important to consult with an attorney, even if you intend to pursue settlement through mediation.
Second, mediation usually involves spouses sitting with a mediator without attorneys present to help and protect the client in the process. By contrast, collaborative divorce necessarily requires that one’s attorney be present at all meetings with the other spouse (and the other spouse’s collaboratively trained attorney). Thus, you are not alone with your spouse as you negotiate resolution of your marital issues (whether on your own or in mediation). In most collaborative divorce cases, a divorce coach (someone licensed in the mental health field such as a psychologist, social worker, or marriage and family therapist, for example) runs the meetings while the attorneys truly collaborate to try to reach a settlement that addresses the most important goals of each spouse. Collaborative divorce does not follow the win-lose model of litigation or even attorney negotiation. Rather, it follows a win-win model to achieve for each spouse what is most important to that spouse. For example, retaining the home may be a high priority for a parent with young children while the other spouse may have the goal of retaining a business or more of their retirement assets, so that each gets in the negotiation process what is most important to them. While the “marital estate” could be considered a pie to be divided between the spouses in divorce, there are many ways to divide that pie to meet the most important respective needs of each spouse.
The only possible detriment to the collaborative divorce process is that, if the process is unsuccessful and one of you files for divorce in court, neither collaborative attorney can represent their client in litigation after having represented that client in the collaborative divorce process. However, statistics show that most collaborative divorce cases are successful so this risk of losing your attorney and having to hire another one is a small risk to take to pursue a process that may be highly beneficially for you, your spouse, and your children and to maximize the chance that you will have a better working relationship and better communication with one another after divorce by having worked together to forge a settlement that meets both your needs and goals.
Summary: For those seeking a thoughtful, respectful, and amicable process to resolve their marital issues associated with divorce, and who want their attorney by their side at each step of the way through divorce negotiations, collaborative divorce certainly should be considered.