You don’t have to go to court to get a divorce any more. If both parties agree that divorce is the best bet, a collaborative divorce will enable you to reach a negotiated settlement out of court. You will each need an attorney, but ultimately the process is less costly and considerably less stressful.
In a nutshell what happens is that the couple wanting a divorce agree on a settlement before divorce papers are filed. Then the judge simply approves the agreement to make it legal. No fighting, lying or cheating. No secret strategies and no mysteries to be uncovered later.
Collaborative divorce is aimed to be an honest and transparent process that will ensure both parties step away from the failed marriage intact. It is also designed to ensure children don’t suffer unduly.
Advantages and Drawbacks of Collaborative Divorce
There are substantial advantages to collaborative divorce, but there are also drawbacks that couples should know about before they decide on this course of action.
The primary advantage is that it costs less in terms of both money and time.
You do both need to hire a collaborative lawyer, which some people might see as a drawback. However this should probably be identified as an advantage since a qualified person is there to objectively back up both sides.
The main drawback is that because it is collaborative, collaborative divorce requires the cooperation of both parties. If negotiation is unsuccessful, then both attorneys have to pull out and new attorneys will have to be appointed. This can be costly as any retainers that have been paid, and other money that has been spent will be forfeited.
The Process Collaborative Divorce Follows
It’s a simple process, but it’s important that it is followed correctly.
- For starters, both husband and wife need to appoint a lawyer who is trained in collaborative divorce law. They cannot use the same lawyer.
- Before involving the lawyers, the couple should discuss what they want from the divorce settlement. This should include issues that concern children and monetary issues.
- Both husband and wife need to meet their respective attorneys independently and discuss the breakdown of the marriage as well as divorce considerations. This would include everything from infidelity issues and mental or physical abuse, to mutually-agreed conditions that will kick in once the divorce is final.
- The next step will be to hold a four-way meeting with both attorneys where there will be full disclosure of all relevant documents and information. Obviously the two attorneys will take sides, but they will be working towards a common interest. If there are issues that require specialists, like parenting issue, financial advise or real estate, then neutral experts may need to be hired. Generally both parties share these costs.
- The divorce settlement is drawn up and officially agreed to. This is filed in court and will be approved by a judge to make it final – without either of the parties having to be present in court.
What Happens if the Process Breaks Down?
Many couples have the best possible intentions – just as they did when they got married. But when it comes to formalizing divorce agreements there can be disagreements. If the process breaks down completely, then it’s back to the courts. But there is an interim solution in the form of mediation, and often a mediator can be called in to help with the collaborative process and put it back on track.
If a mediator can’t help, then the collaborative process won’t work. For this reason, if either party is initially reluctant to use the collaborative divorce process, even after learning what it is all about, it may be better to stick to the conventional court route.
Waggoner Hastings is a legal practice specializing in family and collaborative law. If you want more information about the collaborative divorce process, don’t hesitate to contact us today.