For many types of cases in the American court system, the inherently-contested nature of litigation is a natural fit – sometimes, people simply do have mutually exclusive positions, and need a cleanly decided winner. Some other areas of law, however, suffer for being forced into a competition.
Family law and divorce is an example. Even if you haven’t ever been involved in a divorce case before, you’re probably heard the stories: a relatively uncontested divorce turned into a heated battle over what should have been a minor issue, and when everything was finally done, everyone hated each other, and no one had any money left. You aren’t the only person who’s heard that one before.
Lawyers are perfectly aware of this problem, too, and in recent years, several alternatives to contested divorce have been developed. Mediation and document preparation services are common nowadays, and can help people with some of the more technical parts of a divorce without costing a lot of money. Sometimes, however, cases are simply too large or complex for anything less than the expertise of an attorney, even if clients do not wish to litigate a divorce. What then? One of the most recent approaches is the collaborative divorce process.
Collaborative divorce is a relatively new innovation in the family law field, combining many of the respective benefits of mediation and litigation into a single, unified process. Collaborative divorce is not a legal procedure, so individual groups offering collaborative divorce services can vary wildly in their approach. In general, though, there are some common elements that you should expect to see.
Overall, the process can be considered more akin to mediation than litigation—the point isn’t to “win,” it’s to determine how best to divide a limited set of resources in order to meet each spouse’s different needs and desires. Parties who agree to a collaborative divorce can expect to speak with a variety of specialists and experts to resolve their specific needs—so, a financial planner will work with the spouses to divide assets fairly, a child psychologist or therapist will help devise a visitation plan for any children, and so on. As in litigation, spouses will typically each be assisted by their own attorney, who is responsible for ensuring each spouse’s individual best interests are respected and addressed in any final plan or agreement. They attorneys also prepare the necessary legal paperwork to complete a divorce.
This may sound pretty incredible to you, and you might be wondering how you can sign up for a collaborative divorce of your own, or why they aren’t used in every possible divorce case. There are two reasons: price, and contentious parties.
Price is relatively straightforward—a collaborative divorce requires a good amount of the time and effort of a number of specialists and experts. The spouses are responsible for paying these experts. It’s unlikely that a collaborative divorce will cost as much as a heavily contested and litigated divorce, but paying several thousands of dollars on a collaborative divorce is not unheard of. For many people, this simply isn’t an option. A mediated divorce can be completed for much less, and, while it might not be the theoretically best possible divorce, it will generally serve its purpose at a much lower cost. Why pay ten thousand dollars when you can pay much less and receive something almost as good?
Secondly, not every divorce case is actually an appropriate fit for collaborative divorce. Many divorce cases are relatively uncontested; the emotions and arguments in an uncontested divorce case come from a combination of stress, sorrow, and regret. In these cases, no one in particular is to blame, and the best solution is to resolve everything as efficiently as possible, so parties can move on with their lives and begin to heal. Some cases, however, involve spouses who are bitterly fighting over one or more issues. There isn’t much room to collaborate if one spouse, say, stole half a million dollars from the other, and then ran off to Timbuktu to start a new life. Or, more generally, if one spouse simply isn’t interested in a peaceful resolution, and instead wants a protracted, scorched earth battle of a divorce, the collaborative process will not work.
It’s also important to note that collaborative divorces is relatively new. It’s not difficult for unscrupulous or unprepared attorneys to claim to practice collaborative divorce, trumpet the successes of the concept, but utterly fail to deliver the value they’ve promised. As I’ve said, not every case is an appropriate case for a collaborative divorce.
But, if you’re interested in a modern, holistic resolution for your divorce, if you anticipate little disagreement in the proceedings, and especially if you have sizable assets or a particularly complex estate to divide, a collaborative divorce can be a perfectly-tailored, efficient, and effective method for securing a divorce.