What Makes Collaborative Divorce Different From Going to Court?

You and your spouse have decided it is time to part company. You know divorce is in the future and you are exploring your options. Now you’ve come across something called “collaborative divorce” that might work for you. But what is it? What makes collaborative divorce different from going to court? And how do you know if it is the best choice for you?

In this blog post I will explain the collaborative divorce process and explain what makes collaborative divorce different from going to court. I will give an example of when collaborative divorce is a good idea, and some suggestions for when it is not.

What is Collaborative Divorce?

Collaborative divorce is an alternative to the traditional model of litigation and argument that is designed to guide spouses to a mutually-acceptable settlement of their custody and property interests. Collaborative divorce attorneys come alongside their clients and guide them, helping them make decisions about how to divide property, share custody, and deal with joint assets and accounts. The collaborative process is designed to streamline the court process, minimizing time spent in front of a judge.

What Makes Collaborative Divorce Different From Going to Court?

On first glance, collaborative divorce doesn’t seem much different from going to court. In both cases, spouses negotiate over issues like child support, parenting time, property division, and spousal maintenance. Lawyers advise their clients about options and help to establish priorities and work toward resolution. When everything is resolved, a family court judge grants a dissolution of marriage and enters orders that control how the family will work going forward.

Shifting the Focus Toward Working Together to Solve Problems

What makes collaborative divorce different isn’t as much what happens as how it happens. A traditional divorce model is based on adversarial litigation: us vs. them. When spouses go to court, each of their attorneys argue on their clients’ behalf, putting their strongest case forward, and cutting the other spouse down in the process. In many cases, this can break down into an argument over who is worse. Negotiation within that framework almost always seems like losing because clients usually settle for less than their lawyer was arguing for in court.

In collaborative divorce, attorneys and lawyers aren’t interested in tearing each other down. Instead, the focus is on learning skills and strategies to solve the problem of dissolving the marriage. Collaborative attorneys help their clients identify priorities and goals, and develop strategies to communicate those goals to their spouse. They guide conversation to help both sides feel heard and find a resolution that honors everyone at the table. Unlike litigation, collaborative divorce recognizes that you can disagree with your spouse and want to end the marriage without making him or her out to be evil, dangerous, or worse than you.

Providing Proactive Solutions for Future Conflict

Collaborative divorce is also forward-looking, teaching clients how to resolve differences and work together toward resolution of difficult issues, even when they don’t agree. A collaborative divorce team often includes coaches and therapists who can help clients learn conflict resolution strategies that will help them during the divorce, and long into the future. The same skills that will help clients negotiate a fair distribution of assets can be used to work through future parenting challenges, negotiate adjustments to parenting time schedules, and do the work of separating assets after the dissolution of marriage is entered.

Traditional divorce focuses on the past and the present, not the future. Family courts are reactive by nature. Judges can only make rulings based on what has already happened and what can be proven. In most cases, even when orders direct how things will happen in the future they are based on the past conduct and present circumstances of both parties. No one is looking ahead to what will happen next. It is up to the parties (who now see each other as adversaries) to figure out how to work together as co-parents or joint property owners after the order is entered to make it work.

Committing to Working Together for Resolution

The other big difference in a collaborative process is what happens if negotiations fail. Everyone at the collaborative divorce table is committed to working together for resolution. Attorneys, coaches, financial advisors, and clients all sign agreements promising to do everything they can to resolve the case without litigation. If those promises fail, all the professionals are legally required to withdraw. This means if clients choose not to honor their commitments, they will have to transfer the case to litigation attorneys to go to court instead of completing the collaborative process. This may make the divorce much more expensive and time consuming than it would be if the process was honored.

Litigation is also often more expensive than collaboration. When traditional divorce negotiations fail, that’s when the attorneys gear up for trial. This can mean gathering documents, hiring experts, and preparing legal briefs and arguments, not to mention the cost, anxiety, and public embarrassment that can come with testifying in court. This trial preparation and work before the court can have significant financial implications. And, unlike in collaborative divorce when the parties make the final decisions, at the end of a traditional divorce trial, a judge will make a decision about the parties’ divorce, and they will have to honor whatever the judge decides.

What Does a Good Example of Collaborative Divorce Look Like?

Collaborative divorce is one strategy for dissolving a marriage. The best times to consider collaborative divorce are when:

• Parents have children in common that they want to protect
• Both clients are committed to being respectful and honoring each other
• Neither party has significantly more power or control in the marriage
• There are substantial assets that need to be divided
• Clients want a holistic approach that values their emotional and mental health as well as their financial needs

However, collaborative divorce isn’t right for every case. Certain factors make it more likely that collaboration will fall apart. Others may make the added process unnecessary or financially unavailable. Collaborative divorce may not be the best choice if:

• There is a history of domestic violence, abuse, or controlling behavior by one or both parties
• Either client has emotional or mental disabilities that interfere with negotiations
• There is a power imbalance between spouses

The best way to understand what makes collaborative divorce different and decide whether it is the right option for you is to sit down with an experienced collaborative divorce professional to review your situation and your priorities. Collaborative divorce attorney Kimberly Miller is happy to explain the collaborative divorce process and help you assess whether it is a strategy that will work for you and your spouse. Contact KM Family Law today to schedule a free consultation to learn more.