Is Collaborative Divorce Right for You?
A lot of people are talking about collaborative divorce these days. Many people think of collaborative divorce as a “kinder and gentler” way to get a divorce. But, how can you decide if collaborative divorce right for you?
Start by asking yourself these questions:
- Are you looking for a way to divorce that is less destructive than going to court and fighting the War of the Roses?
- Do you know you want to try to divorce amicably, but you are not sure whether you and your spouse will be able to work things out on your own?
- Does the idea of having intimate details of your married life contained in a public court file make you cringe?
If you answered yes to these questions, collaborative divorce may be just what you are looking for. But, before you can decide whether collaborative divorce will work in your case, you need to understand exactly what collaborative divorce is.
What is Collaborative Divorce?
Collaborative divorce is a relatively new alternative dispute resolution process by which divorcing couples try to resolve their case by working together, outside of court, before their case is filed. After all of the issues have been resolved, the couple, with the help of their lawyers, prepares and files the final paperwork, and obtains a divorce in court.
Collaborative divorce utilizes a team approach to resolving conflict. The size of the collaborative team varies, depending upon a divorcing couple’s needs. Typically, a collaborative team consists of two attorneys (one for each party), one or two divorce coaches, a neutral divorce financial planner and, if necessary, a neutral child specialist.
Prior to beginning the collaborative process, the couple, and all of the collaborative professionals, sign an agreement stating that, if, for any reason, the collaborative process fails, and the couple seeks resolution of their case in court, then all of the collaborative professionals, including the attorneys, must withdraw from the case. The couple must then hire new attorneys, and proceed in court.
Why Use Collaborative Divorce?
Collaborative divorce offers a host of benefits that traditional litigation does not. Because you and your spouse are both active participants in the collaborative process, you are able to craft a divorce agreement that is tailored to your family’s needs. You are not stuck with the cookie cutter approach that courts so often provide. This makes your agreement much more durable. Since you were able to create something that worked for your family right from the start, you and your spouse are both much less likely to end up back in court fighting to change the agreement later.
Collaborative divorce is much more private than traditional divorce litigation. Courtrooms are public places. Every piece of paper you file in your divorce case becomes a public document. Since collaborative cases are discussed and resolved outside of the court room, you and your spouse are able to keep many of the details of your divorce out of the court record.
Collaborative divorce also gives you and your spouse much more control over the divorce process than traditional litigation. You meet when you and your divorce professionals want to meet, not when the court says you have to meet. You don’t have to wait until the court calendar to clear in order to get a hearing date on your issues. When urgent issues arise, your collaborative team is able to respond with a telephone conference or via email in a way that just does not happen in litigated cases.
How to Decide if Collaborative Divorce is Right for You
As positive as collaborative divorce can be, it is not right for everyone. Here are some things to consider to determine if collaborative divorce is right for you.
- Collaborative divorce can only be used if both parties agree to use it. If one spouse will not agree to use the collaborative process, the couple must find another way to resolve their case.
- Collaborative divorce can only be used if both parties are willing to sign a participation agreement stating that they are committed to staying out of court. That agreement also provides that, if either person files anything in court before the case is resolved, the collaborative process is over, all of the collaborative professionals withdraw from the case, and the couple must start over again.
- Both parties must be willing to voluntarily provide complete financial information. If one party insists on hiding assets or income, collaborative divorce won’t work.
- Both parties must agree to use attorneys who are specially trained in collaborative divorce. While many attorneys these days claim that they do collaborative divorce, unless an attorney has actually been trained in the collaborative divorce process, s/he is not qualified to handle a case using the collaborative process. The good news is that thousands of lawyers have now been collaboratively trained throughout the country. In Illinois, CLII’s Professionals Directory can help you easily find a collaboratively trained lawyer in your area.
- Collaborative divorce is generally not the best option for resolving cases involving domestic violence. If all of the divorce professionals are highly experienced and specially trained in domestic violence, then using collaborative divorce may be possible. Even then, however, it may not be your best choice.
Karen Covy is a divorce lawyer, mediator, educator, and a collaborative law professional. She is the author of When Happily Ever After Ends: How to Survive Your Divorce Emotionally, Financially, and Legally. For more information, go to www.karencovy.com