When you first hear the term "collaborative divorce," it almost feels like a contradiction in terms, or at least it does to me. The concept of a collaborative divorce involves both sides agreeing that they will negotiate everything first, without starting any litigation processes during the course of the negotiation (a very simplified explanation). In some instances, the lawyers involved in the collaborative process will also have to agree to not be involved in any litigation if there is no agreement reached as part of the collaborative divorce process.
One of the best things about a negotiated settlement of any kind is that the agreement you reach is something in which you have had plenty of say. This is true whether it is a business dealing, a personal injury lawsuit, or a divorce. For the collaborative divorce process to be truly successful both parties need to go to the table with the idea that they have to be somewhat reasonable in the process. Often times, the family law attorney will be the one that helps set the expectations that their client should have in the collaborative divorce process.
If the Collaborative Divorce process is successful, you will have just taken a situation that had the chance of being contentious and turned it into a situation where you have just resolved all of your issues that are involved in a divorce, such as child custody and child support, the division of assets, and the issue of spousal support. This is done in an environment that is aimed at helping the individuals cope with the process without the need for unnecessary litigation expenses or emotionally draining divorce trials.
Another major advantage that the collaborative divorce process has over a traditional divorce case, is that the parties can truly control the speed in which their case reaches resolution. Often times, court calendars are overbooked, causing a contested divorce to not be set for trial for many months (even years) after the initial divorce is filed. With the collaborative divorce process, you and your spouse can control how quickly (or slowly) your matter gets resolved.
Let's look at one thing in particular and that is the fact that usually in a divorce it is only one party who is ready to make the move to ask for the divorce. This sets up a disagreement right from the start. If the other party or spouse feels that they want to give the relationship more time and maybe more counseling, the spouse ready to end it all only has the power of the courts to achieve his or her desired outcome.
If the parties are not in agreement about staying together, then it is really hard to get the couple to agree on the process and parties that will be involved in helping them resolve their divorce.
Other issues that make the collaborative divorce process not quite feasible or in some cases not fair are situations when the parties come to the table with unequal bargaining power. Think of it as a situation where one spouse was the primary income provider and managed the finances. He or she may not divulge all financial information that would be necessary in order to have an equitable division of assets.
In most divorce cases, lengthy trials never occur and all out court battles never happen. Most people cannot afford that and most people do not want it. What typically happens (and this is from my Indiana experience) is that one spouse will file for divorce, which leads the other spouse to have to respond to the divorce petition. Typically, both sides when then have an attorney represent them.
Although you will have a pending court case, the majority of the work completed on your case will be outside of the courtroom. There are still many non-litigation alternatives that will be utilized by your attorneys in attempting to reach a positive outcome for your particular case. For instance, your attorney or the court may recommend mediation as a way to assist in achieving an agreement and dividing your property.
Sign up to receive a 10-part series of useful information and legal advice about the divorce process.