One of the things people fear most about divorce is lawyers. Many people think that hiring a lawyer means a big court battle and a lot of legal fees. But there is another way to go through the divorce process without going to war. And that way is collaborative divorce.
Collaborative practice is divorce without court. In a collaborative divorce, the couple and their attorneys agree that they will not go to court and will not threaten to go to court. Instead, the parties and lawyers will meet and work through all issues in a divorce. They may also bring in a financial professional and a mental health professional to help with the financial and emotional aspects of divorce.
Each party is represented by a separate lawyer. The parties and their lawyers sign a collaborative representation agreement. The parties exchange financial and other information, but that is where the process differs from traditional divorce litigation. Instead of going to court, the parties and lawyers participate in negotiations and meetings designed to work out the issues they would otherwise have to bring to court. There are no depositions, discovery motions or hearings during this process. Instead, the parties and their lawyers meet in an informal settling and the process is kept confidential. The parties are encouraged, but not forced, to settle. If the parties cannot agree to some or all of the issues, their lawyers will withdraw and the parties can retain lawyers to represent them in further proceedings.
Collaborative law provides a method for divorcing couples to do the following:
- Work together to settle issues, instead of going to court and harming their children.
- Maintain privacy and confidentiality by not filing pleadings in court that become part of a public record.
- Maintain control over decision making and not hand over decisions about your financial affairs or children to a judge.
- Create an effective co-parenting relationship.
- Create a settlement that benefits the entire family.
- Keep control of the process, control its cost and have control over all of the agreements.
Collaborative divorce is different from mediation. In mediation, the parties meet with one mediator, who is a neutral party who works with the parties on solving their disputes. The parties generally do not hire lawyers, but may consult with attorneys outside of the mediation sessions. The mediator cannot give legal advice to either party. The mediator cannot appear in court on behalf of either or both of the parties. In the collaborative divorce proceeding, each party is fully and individually represented by their own lawyer who can give them legal advice. Parties can feel secure that their lawyer is protecting their interests and that their communications with their lawyer are confidential.
When it comes to divorce, cost is a very important and concerning factor. In a traditional divorce, attorneys fees can increase dramatically with each court appearance. The parties have no control over the time their lawyers spend waiting in court to be heard. Attorneys fees and costs also increase when lawyers write letters back and forth and during the discovery process, which can be extensive and may not be particularly needed by the clients. Collaborative divorce eliminates those costs because there is no court time and financial documents are exchanged voluntarily. As a result, parties generally spend about one-third of the amount of fees they would have spent in a traditional litigated divorce.
Collaborative divorce does not work for everybody. Before you and your spouse decide to invest in the process, keeping in mind that you will have to hire new lawyers if the process does not work, talk to a lawyer with experience in collaborative divorce law.
Many lawyers believe collaborative divorce is simply mediation. This is not true as collaborative lawyers receive training in how to work within the process and how to resolve disputes. Collaborative training can make the difference between a successful collaborative divorce and one that is not. It is important to find out if your lawyer has received training in how to handle a collaborative divorce case.
An integral part of the collaborative divorce process is that no one can use the threat of going to court to force a settlement. The goal is to create a safe and confidential environment to discuss issues and concerns and to work together to reach a settlement. Threats of going to court undermine that process and are not permitted in the collaborative process.
Trust is another integral part of the collaborative process. The parties may reach temporary agreements about timesharing, support, etc. Those agreements must be followed unless the parties agree otherwise. Ignoring or breaking an agreement in a collaborative divorce is grounds for ending the collaborative process.
Collaborative divorce offers an alternative to going to court, but this doesn’t mean the process will be easy or enjoyable. It can be difficult and it can take more time than you want, especially if your expectations about the process are not reasonable. Discuss with your lawyer proposed timeframes for completing the process.
Collaborative divorce is an alternative to a drawn out court battle. The process might result in an easier transition for the parties and their children. But collaborative divorce is not for everyone. It is important to discuss your case in detail with a trained collaborative divorce professional before you decide that it is right for you.
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