Attitude of the parties:
Not every case is suitable for collaborative divorce. The parties must come into the process with the right attitude. The traditional divorce process is considered an adversarial process, meaning the attitude is one of battle. Someone wins and someone loses. It can easily become a game to see who can out maneuver the other in order to get the upper hand. This is a great way to resolve certain legal issues in lawsuits. It is a terrible way to resolve family disputes. Instead of taking a win vs. lose attitude, the participants of Collaborative Divorce take the opposite approach and focus on unique problem solving to reach a resolution that is fair for all of the parties.
In the traditional non-collaborative process, one of the parties files a petition for divorce with the court. This begins a schedule of hearings and exchanging of documents and ultimately ends with a trial. During trial, each side brings their own witnesses and experts to show why they should win and the other side should lose. Sounds like a great foundation for someone who has to co-parent, right?
In Collaborative Divorce, both parties have to agree to the collaborative process. Once that happens, the collaborative team is put together. The size and complexity of the team varies depending on each individual case. However, each team will have a minimum of an attorney for each party and a facilitator, usually someone in the mental health field, to oversee the meetings. The team then decides which other experts are necessary to reach a resolution. The experts that become part of the team are considered neutral experts and provide their expertise for the benefit of both parties, not one or the other. The team meets together as a whole to resolve any outstanding issues by discussing them and possible solutions as a group. Once a settlement agreement has been reached, then the necessary documents are created and filed with the court.
A traditional divorce ends in one of two ways: either the parties are able to come to an agreement to divide the property and put together a parenting plan if necessary OR the parties go to a trial with each side presenting their point of view to the judge. The judge then makes his decision or ruling on any of the unresolved issues. Ultimately, this gives the judge the power to decide how their family will be structured moving forward. This can lead to one or both of the parties frustrated with the judge’s decision and more litigation in the future.
A collaborative divorce ends when an agreement is reached by the parties. The parties have complete control over what the restructuring of their family will look like. This leads the parties to focus more on their relationships including forming new skills to help them co-parent. This ability to co-parent and focus on the needs of the children typically leads to a deeper resolution and less litigation in the future.
The traditional divorce process is an expensive one, especially if a settlement agreement isn’t reached and the parties end up in front of a judge. You may have heard horror stories of attorney fees spiraling into the $50,000+ range. It is a possibility depending on how long discovery takes. Remember those games mentioned above to get the upper hand? Games equals dollar signs, how many experts are retained and how combative the parties are.
Typically, the cost of a collaborative divorce vs. a traditional divorce is significantly lower. Because the parties work together instead of battling over every little detail, the attorneys do not have to spend as much time resolving small disputes. Additionally, preparing for a trial is an extremely time-consuming process. Even though it may seem like the collaborative process would be more expensive because the parties have to hire not only an attorney, but a facilitator and possibly a financial expert, it can be significantly cheaper than a long drawn-out contested divorce.