Most marriages headed for divorce don't necessarily end on a good note. But that doesn't mean that the divorce process needs to be a scorched earth battle between soon-to-be exes. While there are many issues that need resolution and negotiations can quickly become adversarial and contentious, there are alternatives to fighting out the details of a divorce in court.
One such option is what's known as collaborative law. In the past twenty years, collaborative law has become an increasingly popular approach to working out family issues like divorces, but it might not be appropriate for every case. Here's what you need to know.
The Ins and Outs of Collaborative Law
Collaborative law is a voluntary process that involves both parties agreeing to settle the divorce out-of-court. Like mediation, the two sides are negotiating to try and find a solution amenable to all. Unlike mediation, however, there is no neutral facilitator and both sides must have their own independent legal counsel.
The collaborative law process requires spouses to attend a series of meetings with their lawyers and other experts as needed. The parties must agree to fully participate in the collaborative law process in good faith. Hopefully, these meetings will produce a settlement that satisfies both spouses, including property division, spousal support, and, if there are children involved, a parenting plan that will meet court approval.
The Pros and Cons of a Collaborative Divorce
As we noted above, collaborative law is not right for all divorcing couples. While a collaborative divorce has its advantages, it has some drawbacks as well.
Pros of collaborative law include:
- The collaborative law participation agreement requires the parties to be courteous and to act in good faith
- Both sides must disclose all pertinent facts, bypassing the potentially expensive discovery process
- Both sides must agree not to use mistakes made by the other party against them, encouraging open communication
- The emphasis on a mutually beneficial settlement allows the parties to find ways to work together that can be especially important if the couple has minor children and will need to continue communicating with one another long after the divorce is final
Cons of collaborative law include:
- If the parties are too belligerent, the process will never work
- Because the parties and their lawyers have agreed not to file anything in court while working towards an agreement, if the collaborative law process does not produce a settlement, the parties must hire new attorneys
- This could mean wasted time and money if the couple can't come to an agreement, and they will still need to engage in traditional court-based divorce proceedings
Collaborative law is often referred to as the team approach to divorce settlements. There is no opposing party. Instead, the soon to be ex-spouses, each represented by counsel, work together to come to a mutually agreeable divorce settlement. It is important to note that this approach of collaborative law may not be possible due to domestic violence, abuse, fear, intimidation, coercion, or other significant issues.
The Dollars and Cents of Collaborative Divorce
Unfortunately, there is no way to know if a collaborative divorce will save you money in the end. While the collaborative law process avoids court costs, filing fees, and other expenses of litigation, each party must still hire a lawyer and there's no telling how long the process will take. And, as we noted above, if it doesn't work, you may have to go to court with all new attorneys anyway. Then again, if both parties can maintain an open and civil discourse throughout the process, it's possible everything gets resolved far more quickly than it would in court, keeping overall costs down. Collaborative law attorneys must screen potential candidates and review the pros and cons of the collaborative law approach with their clients before the process begins. Contact an experienced divorce lawyer near you so you can make an informed decision about whether to go forward with a collaborative divorce.