My husband and I both agree that we need a divorce and have no children. Would a collaborative divorce be right for us?
Criminal Defense Attorney
Collaborative divorce is when both parties agree that they will not go to court, or threaten to do so. The parties strive to reach a fair settlement through a series of four-way meetings between the two parties and their lawyers. There is usually an agreement signed that the lawyers will not litigate the case, thus giving incentive for both sides to strive for settlement. They also agree to full disclosure (not hiding assets) and that everyone will proceed in good faith.
If you and your husband want to do this without attorneys, an you are in CA, one of you files for divorce, the other party has 30 days to respond. You can agree to not respond, then have the filing party file for a default judgement. 6 months later your divorce will be final.
Another possibility is if you qualify for summary dissolution. You have to have been married less than 5 years, no children, and have very limited assets.
See: http://www.courts.ca.gov/1241.htm for all the requirements.
Family Law Attorney
Collaborative divorce is a process where both spouses and their attorneys commit themselves to resolving their divorce issues in a manner acceptable to both parties, without the threat of resorting to the court system or to any form of litigation. It relies on the commitment of the spouses and their attorneys to exercise honesty, cooperation, professionalism, and integrity in working toward the future well-being of the family. Informal discussions and conferences are attended by the spouses, their attorneys and frequently communications coaches who are mental health professionals. The idea is to maximize settlement options that benefit both parties and their children and to minimize or eliminate the economic, social and emotional consequences of going to court.
Collaborative divorces are, on the average, less expensive than traditional litigated divorces. The aim is to reach an agreement tailored to the specific needs of the family in ways that the court system often cannot. Without the adversary litigation procedure, the spouses usually will come out of their divorce with less damage and ill-will so that they can be better co-parents for their children. If their are no children the parties still come out with less emotional trauma and bitter feelings.
Collaborative divorce is not for everyone. Both parties have to be willing to approach the tasks with good will and an intention to do the right thing. It is usually not appropriate if there has been domestic violence.
You still have to file the paperwork to start a divorce and reach a judgment. But all the decisions are yours, rather than those of a judge who doesn't have the time to carefully consider every case and doesn't know you or your children. Courts favor collaborative divorce and more and more often they are giving special processing privileges for the paperwork generated in a collaborative case.
Make sure you contact a trained collaborative lawyer. Look them up at: collaborativepractice.com or in California: cpcal.com
Family Law Attorney
While collaborative divorces can be extremely good ideas in cases where both parties want a divorce, and want to keep things nice, there are some drawbacks. You should consider these when considering a collaborative divorce, to see if these apply to the collaborative proceedings in your own county.
First, many collaborative divorce groups require that the parties sign an agreement to proceed in a collaborative fashion. This agreement will often include provisions that, if the collaborative proceeding fails, the parties will have to fire their collaborative attorneys and start all over again with new attorneys; in addition, any discovery or exchange of documents performed during the collaborative proceeding cannot be used in court. That means all the work done by the collaborative attorneys is out the window. Many dissolutions start as collaborative proceedings, and end up in court anyways because the parties could not agree, after all. In those cases, the expense - and the time taken to complete the divorce process - is prohibitive, because most work has to be done twice.
Second, collaborative proceedings generally do not have much, if any, judicial oversight. They will often drag on - sometimes for years! - with little or no progress. Sometimes this waiting period is to allow the parties' emotions to become less intense; and sometimes, that works. There is nothing in the collaborative proceeding itself to push parties and counsel towards a final goal.
Third, the collaborative proceeding is based on the idea that these two divorcing parties can get along and work out their problems amicably. I submit to you that, in many cases, this is a faulty premise: if the parties could get along and work out their problems amicably, they might not need a divorce at all. Some collaborative groups require that the parties meet with a therapist for an assessment as to whether they are good candidates for the collaborative proceeding. Trust me - that is not a waste of money or time. Get the assessment, and listen to what the therapist says. Nothing derails a collaborative proceeding more than an angry party.
I suggest that you definitely explore the collaborative proceeding in your county, and ask questions about the items I identified above. But, also talk to some non-collaborative attorneys about whether they settle most of their cases, and whether your case is one that would be ripe for settlement. Many attorneys settle most of their cases but do it in such a way that there is a record created; that the rights of both parties are well protected; that one attorney can see you through from start to finish; that items obtained in discovery are there for good; and that the Court is providing oversight and ensuring the case is moving along in a satisfactory fashion. One excellent way to do this is to hire a private or retired judge for a day; both parties and counsel meet with the judge and hammer out an agreement.
Many collaborative proceedings are successful. Many aren't. When successful, a collaborative proceeding can ensure a much friendlier relationship between ex-spouses, and can ease the pain of the divorce visited on children - minor and adult children - and extended families. When not successful, expenses can go sky high, and so can emotions. So, do your due diligence, and make an informed decision.
The response given is not intended to create, nor does it create an ongoing duty to respond to questions. The response does not form an attorney-client relationship, nor is it intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change. Attorney is licensed to practice law only in the State of California. Responses are based solely on California law unless stated otherwise.