Traditional divorces have always had a reputation for being messy affairs. Depending on what exactly led to the divorce, emotions such as frustration and hurt are already running high by the time the divorce petition is filed. Each party gets an attorney in order to protect his or her rights, and divorce negotiations can easily become a game of each party trying to get as much as they can while giving up as little as possible. By the time a divorce case has reached the courts, there is likely to be a great deal of animosity between the parties, with each party feeling they are in the right and his or her ex-spouse is in the wrong. Once a judge issues a final ruling in a divorce case, these feelings of “right” and “wrong” are often reinforced. If the divorcing couple has children, the feelings of the parents can often impact them as well.
But the traditional divorce may be slowly going by the wayside and a new way of handling divorce-related issues emerging. Collaborative divorces are increasing in popularity in Florida, primarily because of the method’s unique approach to handling disputes and conflicts in a divorce case. What is a collaborative divorce, and what benefits does it offer ex-spouses as opposed to traditional court hearings?
What is a Collaborative Divorce?
The key focus of collaborative divorces is on settlement. That is, what drives divorcing spouses to the collaborative divorce method is a desire to protect their rights while wanting to reach an agreement or settlement as to their disputes and disagreements. The process is designed to be as non-adversarial as possible, thereby allowing both parties to feel as if they are being treated fairly and like they are working toward a common goal. As much as is possible, the parties attempt to use negotiation as a means of resolving their differences.
How Does a Collaborative Divorce Work?
The collaborative divorce process works with each party retaining an attorney of their own choosing (if they decide to do so). This is similar to the first step of a traditional divorce, and the attorney for each party plays a similar role. The attorney’s presence is designed to ensure that the party’s rights are protected throughout the process. In addition, attorneys can provide the parties with important legal information throughout the collaborative divorce process regarding the consequences of any agreement to which the parties may come.
When each party meets with their respective attorneys, the parties should indicate whether they wish to resolve their issues through a collaborative divorce. Because collaborative divorce is a voluntary process (that is, no court or statute makes it necessary for a party to participate in a collaborative divorce against his or her will), a collaborative divorce can work only if both of the parties are agreeable and desirous of entering into a collaborative divorce. A party can choose to enter the collaborative divorce process right away, to enter the process at a later time after other issues have been resolved, or to not enter the process at all.
Assuming that both parties wish to use the collaborative divorce framework, there will be an initial meeting between the parties and their attorneys in order to create a collaborative divorce participation agreement. This agreement identifies the major issues the parties intend to resolve through the process as well as the major decisions that need to be made and establishes the “ground rules” for the collaborative divorce process. The agreement will also identify the documents and evidence each party needs in order to negotiate in good faith. Finally, the parties will agree not to use the court system to litigate the issues of the agreement. If a party chooses to do so, the agreement states that the parties’ attorneys must withdraw from representing them and each party must get new attorneys.
An Example of a Collaborative Divorce
Suppose that Clark and Cindi have been married for several years and have two children as a result of their marriage. However, in recent months Clark has seen his hours and paychecks decrease, and it has put strain on the marriage. After a while, Clark moves out of the house and the couple lives in a state of separation for several more weeks. Clark and Cindi eventually decide that it is no longer desirable to remain married to one another and want to file for divorce. Clark begins the process by filing a petition for divorce.
At this point, both Clark and Cindi have a decision to make. If the two of them feel that they cannot – or do not want to – negotiate or settle with one another, either one of them can inform his or her attorney of this and the case will proceed as a traditional divorce case. But suppose that both Clark and Cindi feel that, despite the feelings they may have for one another, they can still work with one another to resolve any differences they may have. In this case, Clark and Cindi would each inform his or her own attorney that they wish to engage in the collaborative divorce process. Of course, if Clark and Cindi wish to use the collaborative divorce process, they will each want to make sure they hire an attorney who has experience in representing clients in a collaborative divorce.
Assuming Clark and Cindy decide to pursue a collaborative divorce, an initial meeting will be held between the parties and their attorneys. The purpose of this initial meeting would be to see if both parties wish to enter into a formal collaborative divorce agreement and, if so, to set out the details of that agreement. Assuming that they wish to do so, Clark and Cindi’s agreement will likely contain the following provisions:
- Rules of conduct: Each party will agree that, while participating in the process,they will treat each other in a civil manner and work together in good faith throughout the process. The rules of conduct will likely prohibit either party from yelling or screaming at the other party, or from engaging in disruptive behavior. The parties can also agree that they will not discuss their negotiations with their children or with other people. Also, the agreement will likely require that Clark and Cindi cooperate in the discovery process by responding to requests for documentation or answers to questions from each other concerning the marriage, each one’s financial assets, or any other such requests.
- Issues to be resolved: Next, the parties will outline the major issues they wish to resolve and what major decisions need to be made. In a case like Clark’s and Cindi’s, decisions will need to be made concerning what assets need to be divided and which of them gets to keep certain pieces of property (such as the marital house). Because they have children, the parties will also need to discuss and resolve issues concerning child support, parenting time and schedules, and with which parent the children will primarily reside. Finally, the parties may need to discuss the issue of spousal support, depending upon each party’s needs and financial situation.
- Experts needed: It is not uncommon for divorces to use expert witnesses to help decide important issues such as the value of a business, a unique asset, or what might be in the best interest of the children. The parties can agree on what sort of experts might be needed in their particular case and can even designate who will be hired to provide expert information.
- Agreement not to litigate: The key provision of the agreement is that the parties agree to not litigate their disputes or seek to resolve any of the issues in court. They may only go to the court to submit routine procedural documents and stipulations. Suppose Clark decides he would like to take his chances in court regarding child support and child custody issues, and he files a petition in court to have a judge determine those issues. Not only would this violate the terms of the collaborative divorce agreement, but both Clark’s and Cindi’s attorneys would withdraw from the case. Clark and Cindi would then need to get new attorneys if they wished to have legal representation.
If their collaborative divorce is successful, it will end with the attorneys for Clark and Cindi preparing appropriate stipulations informing the court of their decisions and asking the court to adopt the agreement of the parties as an order of the court. Once the court does so, the terms and conditions that the parties agreed to in the collaborative divorce will become binding and enforceable orders of the court.
Why Would I Want to Try a Collaborative Divorce?
For some divorcing spouses, the thought of sitting down at a table and attempting to work with one another to reach an agreement may sound unpleasant, if not downright impossible. However, if the parties are able to participate in this process, it offers several advantages to both parties:
- More control over the result: Rather than placing important decisions such as child support, custody, and division of the marital property in the hands of a judge, collaborative divorces allow the parties to dictate the results.
- More satisfaction with the results: In a traditional divorce, one party can easily walk away feeling like the “winner” whereas the other party walks away feeling like the “loser.” In a collaborative divorce, however, because both parties participate in creating a workable settlement, both parties tend to feel like “winners.” Even though neither party is likely to get everything that he or she wants in a collaborative divorce, because of the voluntary nature of the process and the level of control the parties have over the contents of the agreement, any settlement reached through a collaborative divorce is likely to be more agreeable with both parties.
- Lower costs: Lower costs can also be a result of a collaborative divorce. In a traditional divorce, when an expert is needed, both parties must usually hire their own experts. But in a collaborative divorce, typically only one accountant (or one child psychologist, etc.) is needed, and the parties split the cost for the expert. This can result in substantial savings in some cases.
- Faster discovery: Because the parties in a collaborative divorce agree to work together in good faith to reach a settlement, discovery – the process of exchanging important information – usually works quicker as well. This in turn not only can lead to a quicker agreement but can also save the parties money.
- No adversarial proceedings: For those parties who fear the courtroom and do not relish the idea of being interrogated by an attorney, the collaborative divorce process is perfect in that these fearful elements are removed from the divorce process. In fact, if a collaborative divorce is successful, the parties may never even have to see a judge for anything other than to have their agreement adopted by the court.
What if I Do Not Want to Try a Collaborative Divorce Right Now?
Suppose that Clark and Cindi file for divorce and are knee-deep in the traditional divorce proceedings. Some issues have already been decided by the court, but some issues remain to be decided. Even in this case, the parties can enter into a collaborative divorce agreement to resolve the remaining issues. So if the ex-spouses feel that they cannot agree on spousal support (for instance), they do not need to try and resolve that issue through a collaborative divorce. Instead, they can resolve that issue through court and then resolve the remaining issues through a collaborative divorce.
Consult the Right Kind of Attorney
When a person is considering a collaborative divorce, it is important to make sure that he or she hires an Ayo and Iken attorney that is experienced in collaborative divorces. An attorney representing a party to a collaborative divorce is there to help protect that party’s rights throughout the process, so it makes sense to hire an attorney who knows what those particular rights are and how best to protect them.