This legal guide introduces the key differences between a collaborative modeled divorce versus the traditional litigation track. Collaborative divorce is a recent development in the practice of family law that drastically differs from typical dissolution of marriage matter.
Introduction.This practice represents the latest progression in divorce law nation-wide. Collaborative divorce emphasizes joint and cooperative problem solving instead of, and prior to, litigation. Parties remain in control of the entire process without interference from mediators, courts, and judges as they identify and solve the many issues facing divorcing families. I often remind clients that no one knows their personal lives or family dynamic better than themselves—especially not a judge. This process is holistic and intended to permit parties to dissolve their legal marriage in a prompt and amicable fashion to minimize harm to the family unit—especially children. This process typically involves assistance from mental health professionals and a Certified Divorce Financial Analyst (CDFA). A collaborative case process will likely keep your family out of court and your legal affairs private. It will also give your family experience at resolving matters without resorting to litigation, and model positive dispute resolution for your children. Ben King is a collaboratively trained attorney and one of the founding members of the professional group “Denver Source for Collaborative Divorce.”
What is the Collaborative Law Process and How is it Different?When parties opt for the collaborative process, the parties and their chosen counsel all commit to resolve the matter out of court. Thus, parties typically select to proceed with a collaborative divorce after an initial consultation with their lawyer and prior to filing a Petition for Dissolution of Marriage with the Court, which triggers various procedural deadlines. In the event a party has already filed for divorce, the attorneys can file a stipulation asking the Court for a continuance in an attempt to further settlement negotiations. Parties cannot avoid making their requisite full-financial disclosures pursuant to statute by proceeding with a collaborative divorce. Rather, parties informally exchange their disclosures during the collaborative process and file all required pleadings, financial disclosures, and settlement documents (including a Separation Agreement and Parenting Plan if applicable) simultaneously. While the Court requires full transparency and the filing of both (i) a Sworn Financial Statement and (ii) Certificate of Compliance with Financial Disclosures, the parties can also request the Court’s file be sealed to help ensure privacy within the family.
Attorney DisqualificationNext, parties should know about attorney disqualification in the event the case does not become resolved. Many attorneys believe attorney disqualification supports settlement incentive to the potential litigants. If the case does not settle, both attorneys would be disqualified from representing either party in the forthcoming proceedings, nor would anyone at the previous attorneys’ firms be able to represent either party. If you are concerned about losing your attorney, the attorney can discuss other possible solutions like having binding arbitration occur in the event the parties cannot settle the case in the collaborative model. Binding arbitration may have its own benefits analogous to forum shopping if you select an arbiter with significant family law experience, which can be a former judge or magistrate.
Monetary Benefits of Collaborative DivorceOur office recently concluded a traditional case where the parties’ divorce lasted longer than their marriage did. In traditional divorce proceedings, parties often times incur a great deal in attorney’s fees and costs with litigation, which can escalate quickly where both parties share disdain for the other. A collaborative case can remove that risk by likely keeping your case out of the Court. From the first day your case begins, your money is spent working towards settlement and not trial preparation. More so, the collaborative process will give you and your family the tools and experience needed to resolve matters without the need to resort to litigation. Theses tools will be invaluable later on when post-decree issues arise such as: modification of spousal maintenance, child support, or parenting time.