There are many positive aspects of collaborative divorce. It is a client-centered, cooperative, and holistic process. You and your spouse have a safe space to can work out an agreement in a private setting, without the stress of going to court. In this article, Zonder Family Law examines seven key aspects of collaborative divorce so you can decide for yourself whether it’s the right option for you.
Fundamentals of Collaborative Divorce
• Collaborative divorce is a team effort. You and your spouse must share the goals of reaching an agreement.
• Each spouse retains his or her own lawyer. In addition, each spouse may retain a divorce coach to ensure that both legal and emotional issues related to the negotiation can be dealt with “in real time”.
• As a team, you and your spouse can also retain additional neutrals, such as a financial planner and child custody professional.
• If you and your spouse cannot come to an agreement, your lawyers must leave the case; in other words, the lawyer you retain in an out-of-court collaborative divorce cannot be the same lawyer who represents you in traditional court litigation.
• Both you and your spouse must agree to exchange financial and other information pertinent to the divorce without using formal legal devices called discovery.
• The team holds regular meetings during which you and your spouse identify issues and solutions. These meetings are confidential, meaning all information disclosed in the meetings cannot be used in court.
• You and your spouse must be respectful to each other, and, if applicable, put your children’s best interests first.
Expense of Collaborative Divorce
There isn’t a fixed cost for collaborative divorce. The total bill depends on many factors, including each attorney’s hourly rate, the number and complexity of issues, the cooperation of the spouses, and the number and fee rates of any consulting neutrals. Each team meeting is a significant expense. It can be made less expensive by only including the necessary team members. Yet in the long run, there can be substantial cost savings with a collaborative divorce. During court litigation, attorneys generally conduct “discovery.” Discovery consists of formal legal investigation procedures, such as depositions and subpoenaing of documents. When spouses agree to exchange information freely, the cost of discovery is eliminated. Further, by communicating directly with each other, spouses save money because their lawyers do not need to draft and exchange correspondence. Moreover, there is no formal process whereby motions are filed and witnesses are marched into court for a formal hearing.
Timing of Collaborative Divorce
When spouses cooperate and matters progress smoothly, there are generally fewer total meetings. The meeting times are shorter, and an agreement is reached sooner. In addition, because the spouses and the team sets the meeting times and locations, there’s no wait for court dates to open on the judge’s calendar; and there’s also no wait time in court for litigating lawyers – which adds up to more legal fees. Additionally, by setting their own schedule, spouses can avoid or minimize missing work and other important events.
Emotional Side of Collaborative Divorce
Collaborative divorce may actually be a reasonable option for spouses who are very angry at each other or hold feelings of resentment and hurt. If the couple were to choose traditional court, the litigation process can often fuel these emotions and turn small disputes into full blown expensive wars. Although each case must be assessed individually, generally, with the help of divorce coaches, spouses can move through the collaborative divorce process effectively. Divorce coaches, who are mental health professionals, guide the spouses’ communications and teach communication techniques for following up on the agreement reached (e.g. a child custody arrangement). Divorce coaches are not therapists in the traditional sense; instead, they serve in a limited role with the purpose of getting their client through the divorce and to a workable agreement which is the “finish line”. Divorce coaches help identify the real issues, provide resources, help with triggers, and help clients put their thoughts into words that can be heard by the other spouse.
Legal Rights Aspect of Collaborative Divorce
Each spouse’s attorney represents his or her interests alone. A collaborative divorce attorney is unique, however, in that he or she focuses on listening and participating in settlement without positioning. The collaborative divorce attorney delivers legal information, suggests options and assists with brainstorming, drafts and reviews legal documents and spends time preparing in advance of meetings. The collaborative divorce lawyer honors his/her client’s decision to have a voice in the settlement rather than advocates for hard line positions as would be done in court.
Withdrawal Provision of Collaborative Divorce
Collaborative divorce lawyers agree to withdraw from representation if the spouses decide to litigate. This provision ensures that collaborative divorce lawyers focus completely on settlement, and do not use confidential information learned in team meetings to take advantage of the other side in court. To be effective, the honest, cooperative environment of collaborative divorce must be screened off from the adversarial environment of litigation.
Consequences of Abusing Collaborative Divorce
If one spouse is dishonest or withholds relevant information, that spouse’s lawyer must withdraw from representation. Collaborative divorce lawyers must uphold their reputations as honest and forthright, or they will not be invited to join future collaborative divorce teams in the future. Collaborative divorce lawyers have very strong incentives to abide by the collaborative divorce agreement, which includes an honesty clause. This is a very different environment than that of litigation, where lawyers are encouraged to “hide the ball” and use information for a tactical advantage over the other side.
While collaborative divorce may be ideal for some families, it’s not the only choice. At Zonder Family Law we are Ventura County, Calfiornia Family Law Specialists – specializing in not only collaborative divorce, but also mediation and court divorce, child support, paternity, child custody, spousal support, and property division. Learn more about what options you have.
* Kate Langmore is a contributing writer