Tag Archives: alternatives to litigation

The Pros and Cons of Collaborative Divorce

By Gloria Petroni, Esq.

Divorce proves to be a challenging and difficult experience for everyone involved. Many people are turning to collaborative law divorce in the hopes of a less painful and more cost effective ordeal. Whether this type of divorce is the right choice tends to be very personality driven and depends heavily on the details of each specific situation.

Collaborative law divorce is offered as an alternative to traditional, in the court room litigation. Collaborative divorce involves each party having their own representation, including any children that are involved, as well as an independent financial consultant. Therefore, many families trying to resolve custody arrangements have opted for the collaborative law route.

The practice can be ideal for situations such as having an uncontested prenuptial agreement or other non-contested documents in place, non-complicated asset issues or amicable splits. In some cases, collaborative divorce can be less expensive when compared to litigation, with the couple each paying for half of the fees. This method can save time for many couples, alleviating months of painful court dates and allowing both parties to progress with their lives.

For others, however, this can be the wrong decision when it comes to choosing how to settle an impending split. For the cases that are more complicated, traditional litigation may be a better fit. For couples that have complex finances or assets, having a judge acting as the decision maker will most likely aid in the progression toward a resolution.

If a dissolution has been tumultuous from the beginning, a more structured, formal litigation method may be needed. In order for collaborative divorce to work the way that it is intended, both parties need to be committed to being forthcoming with financial and other imperative information needed for discovery. If one party in a collaborative divorce is not willing to fully disclose all needed information, there is no judge in place to compel that information to become available and the process stops or may no longer be in the best interested of the other party.

Another red flag that collaborative divorce should not be the method of choice is if a couple has a document in question. For example, if the validity of a prenuptial, postnuptial or buy sell agreement is in question, finding a different method is recommended. Because there is no decision maker such as a judge or mediator in place in a collaborative divorce, there is not mechanism to determine if a prior agreement is valid.

Collaborative law divorce can be a great option for those couples looking to part quickly and without drawn out proceedings. The process does not rely on the schedule and availability of a judge. This is a good option for people anticipating taking on a lot of the control in their divorce. One of the biggest differences is when party fires their representation during a collaborative process, the entire representative team (including the other spouses and children’s attorneys) are also let go and the process begins again or takes another form such as mediation or litigation. This speaks to the importance of making sure that client and attorney relationship and trust foundation is strong, before starting the collaborative process. In order to get the intended results out of collaborative divorce, it is important to meet with an attorney and delve into the specifics of the case and the relationship prior to initiating the process.

How to have a better divorce than your marriage – communication is key

 By Melissa L. Exline, Esq., Surratt Law Practice

Divorcing couples face many challenges as they try to figure out what their post-divorce life will look like.  According to the IACP (“International Academy of Collaborative Professionals”), couples seeking collaborative divorce generally indicate they want to communicate with a tone of respect.  They are specifically prioritizing working cooperatively.  Clearly, if a couple could communicate well, they might not be facing divorce at all.  So, where does that leave us?  Oddly enough, just because a couple does not communicate well does not mean they don’t value good communication!  There is evidence that poor communication is the #1 reason couples split up (www.divorcestatistics.info).   Many people struggle with trust – but in divorce, when litigation is on the table, it can make a person question every action, wondering what is the motivation or tactical reason for everything.

Collaborative Practice puts respect, dignity, openness and fairness at the forefront.  Using these guiding principles definitely enhances communications.  It is structured in such a way that it bolsters open and honest dialogue.  Parties each have their own collaboratively trained lawyer, and have the benefit of a collaborative coach and financial specialist, all of whom work as a team to negotiate a mutually acceptable resolution.  All the cards are on the table and the net result is families can reach a better, longer lasting agreement.

Most family law attorneys that have gone to trial will tell you – trial is not the answer.  It is one way to divorce, sure.  And there are times when trial, is in fact, forced upon a person.  But having a Judge who does not know you decide some of the most important aspects of your life (all at a time of emotional trauma), based on a gut reaction and limited information, is not most people’s first choice.  Collaborative Divorce is structured to decrease hostility, increase understanding, and avoid the pitfalls of traditional court-centered litigation.