WHY COLLABORATIVE DIVORCE?
Collaborative Divorce (CD) is best understood contrasted with traditional, adversarial divorce. Litigation is far more common, and court may be the right venue for many contentious divorces. If it’s right for you, but not your spouse, it is not an option: you both need to be ready, willing and able to cooperate to find a peaceful path forward.
Advantages over traditional divorce include more autonomy, privacy, and compassion. If you are concerned about co-creating a better ending to your marriage, and a more peaceful future, and helping healing start sooner is a shared vision, think collaborative.
Whether you choose litigated divorce or CD, you surrender some control to an attorney. A judge is the ultimate litigation decision-maker regarding everything you cannot agree to, including where the kids live, child support, visitation, maintenance (aka “alimony”), who gets what, etc.
A successful CD is not filed in court until everything has been agreed to, including a stipulated decree of dissolution, with agreed property division, maintenance (aka alimony), child support, and parenting plan.
Tabloids are full of sordid details about celebrity divorce, because case files are public records: anyone can access and print those files. Divorce files, accusations and financial affairs will be forever available for review by anyone curious enough to look.
CD offers a privacy sanctuary: nothing is filed with the court until everything has been agreed. A completed CD court file review may yield 20-40 pages of stipulated agreements, signed off by a judge, with all else confidentially protected by your attorney.
The judicial system certainly has compassion, as family law always tries to put the “best interest of the children” front and center. Courts are designed to resolve disputes based on the issues presented: Was a contract broken? Who was at fault? Who is truthful, or not? Courts have the power to determine the consequences for “wrongdoers”. There may be a litigation “winner” and “loser”, or maybe two “losers”.
CD is designed to focus on how to best satisfy your changing family’s core interests. Some recurrent CD interests are autonomy, privacy, healing, individual and family emotional health, safety, security, respect, dignity and integrity. Interests are not negotiable. They cannot be negotiated based on right or wrong, good or bad, or punishing wrongdoers. CD may be the best way to acknowledge and honor your family’s interests and core values.
Litigation is never fun. A divorce brawl, with adversarial attorneys each looking to make their client “winner” and the adversary “loser” is not a life-affirming choice. (I speak from experience: I’ve been a trial attorney in federal and state courts for more than 35 years.) And sometimes it's the right choice. Tension, stress, anxiety and fear inevitably increase when you fight about sensitive issues like custody, competence and maintenance.
Agony, suffering, and life force depletion still happen during a CD case, but often during the process the initial emotional trauma begins to dissipate as cooperation and progress occur. CD attorneys are trained with interest-based negotiation skills to “move to the heat” of emotions. Professional counselors who are trained as CD coaches may be enlisted to calm volatility. Litigation offers nothing similar, no salve for divorce wounds.
More Holistic Process
Litigation can be a lot like going to the doctor to get a pill or a shot to fix what ails you. Divorce attorneys check your agenda and tell you what you need to do to “win”. They know what they need to do: win and to maximize recovery. Court orders must be complied with, like them or not.
The autonomy and privacy of CD makes the process more holistic. I’ve always practiced holistic law, heavily reliant on full client participation in their success (and healing). “The more you help me to help you, the better. We are in this together.” No one will make you do anything against your will. In CD, both spouses "win" with every agreement reached.
Less Attorney Fees
Like sports team reflect the temperament of their coach, divorce attorneys reflect the will of their client, and the client pays for that mirrored performance. “Proving” vindictive or punitive strategies (e.g., “make her pay” and “never give an inch”) are expensive and create challenges which may not be tolerated without a fight. (“Damn the torpedoes: full speed ahead!”) After multiple hearings and trial, after significant expenditure of human and financial capital, a judge will decide your issues. Your pain and hurt will not be resolved (and will likely be exacerbated) by any court ruling, while your court file and fees get larger.
As trained peacemakers, collaborative professionals seek ways to deescalate conflict from day one, and to reach closure as quickly as the parties are able, options inherently more economical in terms of money, time and stress.
Less Expert Witness Fees
With guidance from their attorneys about why an expert could be useful, which CD trained expert may be helpful and why, clients may mutually agree on one expert per relevant issue to act as a neutral CD professional team member. One financial expert could be tasked to do a fair and impartial review of assets to help both clients make informed decisions regarding equitable division. Guided by their professional team’s help, the clients - not the experts, not a judge, not an attorney – decide for themselves what is fair. Experts continue to be available to answer questions and explain different options, to educate and inform the spouses and attorneys. Their job is not to persuade. The cost of one collaborative expert should typically be far less than half of a comparable pair of competing experts’ costs in a litigated case.
You probably know people who have been trapped in divorce battles lasting more than a year. Regardless how fiercely the case was contested, most divorce cases settle, often at the proverbial “court house steps”, often after a brutal, expensive, eleventh hour, court ordered settlement conference mediation shortly before the scheduled trial, and nobody leaves happy. Such results are often the result of fatigue, resignation and fear. (Ponder whether this typical scenario represents success or failure.)
CD cases begin with intent to reach a global agreement by negotiating and cooperating on everything and taking as long as they take. That might be two or five months or longer: every case is as unique as every couple. Less time equals less money.
Even though all contested cases need to be prepared as though they are going to trial, less than 5% of filed divorce cases go to trial. If there is a trial, a judge decides all unresolved issues. There is a high likelihood neither spouse will like judicial resolution of their issues. In many instances, after the case was done nobody “won”.
The objective of every CD case is to reach a “durable agreement”, one that will not need to be taken back to court for reconsideration or modification (additional pricey, contested processes). Durability is critical if you have kids: even though you will no longer be husband and wife, you will still be part of the family you created together. You will always be Mom and Dad.
Less Family Disruption
The “best interest of the children” is a guiding judicial principle in family law. If parent competency challenges are battled out in court, the family dynamic is jolted and ripped even further than in an “ordinary” divorce case. (If you feel your spouse is not a competent parent because of violence, addiction or mental health issues, you most likely will be better served in court.) The same “best interest” standard is an essential CD consideration to maturely rearrange the changing family structure in ways that work for all family members.
More Peaceful Future
There are different degrees of animosity in traditional divorces. In a hard-fought, hotly contested case permanent scarring and damage can happen to all involved, parents and kids. What “gain” is worth that cost if there is any way to avoid it?
A durable agreement helps both parents and their kids peacefully coexist this year and next, and over a lifetime of performances, birthdays, graduations, weddings, births, funerals, etc. When helping healing start sooner is a shared vision, CD may be right for you.
As asked under “Less Time”, above, consider whether traditional divorce cases fail when they settle on the court house steps, after having contentiously prepared for a trial that never happened? Could a “better” result have happened quicker in CD, for less money, with less trauma? Might an earlier, recurring, conciliatory approach have been worth a try?