Collaborative Divorce in Difficult Economic Times
Christopher M. Moore
Moore, Bryan, Schroff & Inoue LLP
The Available Choices
There are three ways to resolve your divorce case: litigation in court, Collaborative Divorce or mediation. There are pros and cons to each.
If you go to court, you may get to tell your story to a judge. Where there is abuse or hidden assets, going to court may be the only way out.
There are simply not enough courts to hear all the cases and delay is the rule. On the day you go to court there may be so many cases that yours can’t be heard and you have to come back another time, perhaps weeks or months away. This takes money.
Going to court is expensive. Each side may hire a forensic accountant who charges fees similar to those of the lawyers. Even in a simple case the fees can run into tens of thousands of dollars. In a more complex case, there is no limit to the cost.
Mediation is a popular alternative to litigation. It’s less expensive than using the court system and avoids court delays. The mediation process is confidential and nothing said there may be used later against you in court. It’s informal and can resolve cases quickly.
Mediation can have a downside. Anyone can call himself or herself a mediator. Ideally, the divorce mediator is an experienced divorce lawyer who is trained in mediation.
The potential for abuse is often cited as the most serious potential problem in mediation. A domineering spouse with a history of physical, verbal or mental abuse may propose mediation as a way to get what he or she wants in the divorce settlement. If your spouse has dominated you throughout the marriage, you’ve had arguments about money or other things and have never won one, or you feel afraid to challenge your spouse, mediation is probably not right for you. In mediation the parties meet with the mediator alone, outside the presence of their lawyers, and if the playing field is not level because of the parties’ history, mediation is not likely to produce an appropriate outcome.
Collaborative Divorce can offer the best path to a divorce settlement that is cheaper, faster and more friendly than going to court, while avoiding the potential for abuse sometimes found in mediation.
How Collaborative Divorce Works
In Collaborative Divorce, each party has a lawyer. The parties agree that they won’t go to court, will exchange information voluntarily and will settle the case by agreement. If either side decides to end the collaborative case and go to court, both lawyers are out and each party must retain a new lawyer. Everything said in a collaborative case is confidential and may not be used in court. The case is handled through meetings with the lawyers and parties. The goal of Collaborative Divorce is to mold the parties, lawyers and coaches into a team that tackles problems in a cooperative and positive way. The professionals are trained to find imaginative solutions that result in a win-win outcome wherever possible.
In most divorce cases, emotions run high. The parties can experience feelings like anger, denial, anxiety, and depression that make it hard to reach agreement on the real issues like the financial settlement and a parenting plan for the kids. To work past these dark emotions, the lawyers will urge each party to have a coach. The coaches are mental health professionals, but don’t act as therapists for their clients; rather the coaches create a team out of the parties, the coaches and the lawyers.
Professionals who practice Collaborative Divorce have been trained to mold both sides into a team with one goal. Where issues require an outside expert, the lawyers will agree on a neutral expert such as an accountant or child specialist.
Collaborative Divorce can have its negatives. The cost of the professional team, with lawyers, coaches and possible neutral experts, may seem daunting. If collaboration fails and the case must go to litigation, there is a cost to the parties in hiring new lawyers.
Experience teaches, though, that a collaborative divorce is almost always faster, cheaper and more amicable than litigation. That each party has a lawyer avoids the potential for abuse. The coaches reduce the parties’ anger so they can get to the negotiating table.
A strong case can be made that in these difficult economic times Collaborative Divorce offers the best route to a divorce that is fast, friendly and fair.