While researching your divorce options, chances are you will come across, if you have not already, the collaborative divorce model. As a model, it is relatively new, dating from the mid-1990s from the Midwest, when a group of family court attorneys and experts committed to working with each other, collaborating, for a divorcing family, rather than against each other. Pockets of collaborative lawyers popped up across the county touting a new option for families that were facing the throes of divorce court and the prospect of paying a lot of money on lawyers and trials, money they did not have, while their homes fell into foreclosure and the economy crumbled. At least in a collaborative divorce, the theory was, these families would spend less, avoid court and divorce in a more amicable, and less costly, manner.
As a concept, however, divorce collaboration is nothing new. On some level, all divorce lawyers must collaborate with each other to arrange parenting plans, appraise and divide property, etc. As mediation became more popular, for decades, collaboration became the divorce court’s expectation, if not the state’s law. In most states now, mediation and collaboration are either encouraged or mandated, and in many of those states by laws that are just as commonplace, the norm, as the waiting period to get divorced.
Considering that collaboration is expected regardless, why would one, possibly you, go further and use a collaborative divorce model instead?
On the upside,
-the process is generally confidential, whereas the court process requires the court to keep a public record and conduct hearings and trials in open court, except in limited circumstances, usually involving child abuse, in which the judge allows for sealing a file or closing the courtroom doors.
-you can choose your and our spouse’s attorneys, knowing that both are committed to the collaborative divorce model.
-you and your spouse enter into a contract to consult, together, with financial experts, mental healthcare experts and parenting experts to supplement the services your lawyers provide and generally share those costs.
-you spend less time at the courthouse waiting for your case to be called and observing scheduling conferences and temporary hearings that seem to have very little to do with the ultimate outcome of your case.
-because the process is voluntary, it is more likely you and your spouse are “on the same page” with your desired outcome and, thus, are more likely to honor it post-divorce.
On the downside,
-if the process does not work, i.e. you and your spouse cannot reach an agreement, most collaborative divorce contracts require that you hire new attorneys for a court process – that is, you end up paying more for lawyers when one party does not agree to settle.
-you must trust your spouse to fully disclose her assets and debts, and to communicate in an open and honest manner about all issues in your case, which is highly unusual for spouse who are divorcing in the first place.
-you cannot avoid the courtroom altogether; rather, at least one of you must attend a hearing to submit your settlement agreement to the divorce court and to obtain your judge’s approval as to parenting matters, over which the judge maintains authority despite your agreement to collaborate and settle without the judge’s involvement.
-in cases of domestic violence, your judge may not allow, or accept an agreement from, the collaborative divorce process.
-oftentimes, there are legitimate differences of opinion for things like business valuations, and, thus, having a retained expert for each of you is not a bad thing but, rather, more akin to getting a second opinion from a doctor or a critical eye to disclose honest, but for you potentially costly, mistakes in one expert’s opinion – what’s worse, if you disagree with your mutual expert, you must breach the collaborative divorce contract and start the process a new in court.
Thus, the costs are not necessarily, if ever, cheaper for a collaborative divorce, and the loss of independent analysis could prove costly to you.
Nevertheless, the collaborative concept is generally a good one, and any attorney who is worth working on your divorce should tell you likewise – our job is to keep the process less stressful for you, whether we are working as a team of attorneys or sharing information despite our differences from opposite sides of the courtroom.
All of this goes to say, collaboration in the divorce process should be your expectation, even if you do not choose the collaborative divorce model. Your judge will expect it, and so should you.