Tuesday, June 25, 2013

Collaborative Divorce—A More Amicable Solution for Divorcing Couples

When married couples come to the determination that their marriage must end, they are often faced with the unknown, a divorce. The divorce itself can be challenging enough--think of the legal jargon, paperwork, attorneys, fees, court, judges, all of the signatures required, etc. However, in my experience, the most challenging aspect of divorce is typically on the family itself (especially if there are children involved). Further challenges include financial challenges such as dividing the assets such as the marital home, cars, etc., plus the liabilities such as credit card bills and mortgages. Finally, another challenging of divorce is something that is not traditionally prioritized: the sustainability of the agreement that divides the assets, custody schedule, and support payments, etc.. This is where the relatively new practice of Collaborative Divorce can be a benefit.

Traditionally, there are two different routes couples may go through in order to come to a settlement in a divorce – litigation or mediation (that is unless the couple comes to an agreement on their own). There is nothing wrong with these two methods -- in fact, I currently represent clients in one of the methods -- traditional divorce litigation. The traditional litigation method often connotes the imagery of “pitbull” attorneys fighting to “take everything they’ve [the other spouse] got.” While not all divorce litigation cases take on the “pitbull” characteristics (and I try to avoid them!), litigated divorces have their drawbacks, such as breeding contention, as well as removing an element of control over the divorce from the couple into the hands of a judicial official (like a judge).

The second traditional method that divorcing couples may go through is mediation. Here a neutral person “mediates” differences between the spouses, and they come up with something typically called a “Memorandum of Understanding.” With this memorandum, the couples typically must hire an attorney to write a Marital Separation Agreement to file with the proper court. So, there is the obvious drawback of having to hire the mediator, then going forward and still having to hire another attorney to actually get the divorce.

This leaves us with the newer practice of Collaborative Divorce. While it is not for every divorcing couple, Collaborative Divorce is a third alternative, and in my opinion, an alternative that creates a more sustainable and amicable divorce. Collaborative Divorce is a voluntary process where the spouses each have an attorney, and there are other professionals such as a financial planner, child specialist, and potentially other experts, who all collaborate to come to an agreement on all of the open issues such as separation of assets, child custody, etc.

As a group, the team of spouses, attorneys, and other professionals meet in order resolve differences, and come up with a solution to ensure that each spouse is satisfied with the divorce settlement. There is no threat of litigation because each spouse pledges to avoid it. The lack of a threat of litigation helps couples get to the root of the issues, both big and small, in order to work together towards a common goal (one would assume that, there was something between the two in the first place…that’s why they got married!). Getting to the root of the issues, prioritizing what matters the most for each spouse and affected parties (for example, the children!), and thinking about the lasting impact of the decisions each spouse makes in the separation agreement, helps distinguish Collaborative Divorce from the other two methods.

Finally, Collaborative Divorce is not for everyone. I encourage anyone going through a divorce to consider each alternative equally, and speak with an attorney about each of these divorce methods before deciding on a path towards your divorce. In future blog posts, I will write more about the details of Collaborative Divorce as well as the positives and negatives of each of the methods I briefly wrote about above.

In the meantime, please feel free to contact me directly about any questions you have about divorce, or other family law matter. It would be my pleasure to speak to you about your needs, and to help provide counsel about your unique situation.

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