People on the threshold of divorce often fear the expense, the animosity and the uncertainty of the outcome. But somehow they need to get to the other side of the process and get on with their new lives. In some cases, collaborative divorce, a newer and ever-more-popular method of divorce, can lessen these three major fears often present in traditional dissolution of marriage.
The traditional approach
The brain child of a Minnesota attorney in 1990, collaborative divorce has quickly caught on across the country and even internationally. In a typical adversarial divorce, both parties get lawyers, who try to negotiate a marital settlement agreement for their clients. (In Texas, certain issues require mediation as well, when a neutral third party assists the parties in resolving those issues.)
If the divorcing spouses cannot settle their divorce issues outside of court, the judge after a divorce trial will have to decide important matters with lasting impact like child custody and support, visitation, alimony or spousal maintenance, and property division.
What is collaborative divorce?
Attorneys participating in collaborative negotiation are specially trained. In collaborative law, the soon-to-be ex-spouses enter into a formal agreement to take the dispute out of court into a series of respectful, confidential face-to-face meetings at which the couple, each of their divorce lawyers and any necessary neutral professionals are present. The neutral experts may include financial planners, mental-health professionals, parenting consultants and any other type of person needed to provide advice and information needed for the couple to reach an informed negotiated settlement.
In a traditional divorce, each party's family law attorney does not talk directly to the other divorcing spouse, only to that spouse's legal counsel. In collaborative divorce, this model is significantly different with the four parties (two spouses and each of their counsel) having a discussion around the table. In addition, if the collaborative approach breaks down and has to revert to the traditional process, the parties agree to hire new attorneys, incentive for both the spouses and the lawyers to work very hard to make the collaborative process work.
Pros and cons
The advantages of collaborative divorce may include:
- Cost: in many cases the overall cost of the divorce process is relatively cheaper with collaborative law if the parties can make steady progress in their negotiations.
- Confidentiality: the parties may not want their personal situation to become public in a courtroom.
- Certainty: the parties control the terms of the divorce agreement, not the judge.
- Stress: the parties agree to act respectfully and keep animosity out of the process.
Of course, every situation is different and while collaborative divorce can be a great alternative for many, not every couple is right for the process. For example, these factors may make the collaborative process less likely to succeed:
- History of abuse.
- Emotional turmoil at a level that makes face-to-face negotiation unwise.
- History of dishonesty on the part of one or both of the parties.
- Probable inability to compromise that may make drawn-out collaborative negotiations as expensive as the traditional process.
Get good advice
Any Texan facing divorce should discuss the collaborative approach, along with the other options of traditional divorce or mediation, with an experienced family law attorney who can help the individual decide which approach may be the best fit.