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When Should I Consider a Collaborative Divorce?

In a collaborative divorce, the couple commits to trying to work things out themselves, outside of the courtroom. Typically, each party will have a lawyer, and oftentimes a financial and mental health neutral are also part of the process.

A financial neutral is involved because there are many financial decisions that will need to be made during the process and it is helpful to both parties to have a financial neutral present to go over all of the numbers and to explain how each party will fare financially after the divorce. A mental health neutral can help if there are emotional issues that may be hindering communication between the parties.

The attorneys involved in a collaborative case sign an agreement stating that if the collaborative process is not successful, neither attorney will represent their client in court. This gives the attorney incentive to help resolve the case collaboratively, since there will be no litigation fee for the attorney if the process fails. This helps align the client’s and the attorney’s interests.

Almost any divorce can be handled collaboratively if both parties agree to the process. A collaborative divorce is much kinder and gentler than trying your case in court, and usually a lot less expensive. But, if it is not successful, then you have spent funds on the process and still have to face the expense and disruption of litigation. So, it is important to assess the likelihood of success before committing to the collaborative process.

One of the factors to consider is whether the parties trust each other to be honest about their finances. The collaborative process presumes a certain level of trust. Each party commits to be honest about their finances. If you do not trust the other party to abide by that commitment, then the process may not be for you. You may need to avail yourself of the tools of litigation, such as subpoenas to third parties to get financial information that is not supplied.

Another factor is expense. While the collaborative process is generally less expensive than trial, it is typically more expensive than resolving your case through mediation. Mediation is another way of resolving your case without having a judge decide your issues. It does not involve third party neutrals and is typically a quicker and less intensive process, usually lasting a day or less. The disadvantage of mediation is that there usually isn’t enough time to really flush out all of the issues to help insure that future problems don’t arise.

Yet a third factor is the experience of your attorneys and the team. If you decide you want to engage in the collaborative divorce process, you should choose an attorney who is collaboratively trained. Your spouse’s attorney also should be collaboratively trained. This is important because most attorneys have a litigation mindset. That mindset is an advantage in an adversary setting, but in the collaborative process, an attorney’s role is to help the client fashion a lifestyle after divorce that is as comfortable as possible and to help foster ongoing communication between the parties, especially if there are children involved. These are two very different approaches. Sometimes the advocacy skills of an attorney that can be so helpful in court can become obstacles in the collaborative process.