For those considering engaging in a Collaborative divorce instead of pursing the traditional, litigation-style divorce, there are several differences you should be aware of. The Collaborative divorce model acknowledges that not every divorcing couple wishes to inflict as much damage as they can in a litigated process. Below are six key differences between Collaborative and traditional divorces:
- Agreement. Participants in a Collaborative divorce both engage Collaboratively trained attorneys and sign an agreement setting forth the rules of the Collaborative process, stating that they will disclose all material information and resolve their case without resort to contested court proceedings. In a traditional divorce, the rules are set by statute, caselaw and the Rules of Civil Procedure.
- Team Meetings. The process is conducted through a series of team meetings where the parties, their counsel, a Collaborative Divorce Facilitator (“CDF”) and any neutrals who can address discrete topics which are agreed in advance. An example would be having a meeting to address the parent’s wishes regarding parenting time with a parenting expert. Another example would be a meeting to discuss allocation of the marital residence with the input of an appraiser. Yet another example would be a meeting to determine the value of the business with a business valuation expert. The parties in a Collaborative divorce agree on which experts they may need, and the experts are engaged jointly, as neutrals, rather than as experts for one “side” or another. The existence of joint experts, instead of the traditional dueling expert scenario of a litigated divorce, can be a less expensive alternative.
- Goals and Interests. The Collaborative process encourages parties to determine what their goals and interests are, and then focuses on achieving those goals and interests for both parties. Traditional divorce focuses on the parties’ “positions” and winning.
- Better for Children. One of the goals of Collaborative divorce is to ensure that your children will not be caught in the middle of conflict. The Collaborative team can include a neutral child specialist to work with both parties, advise you on how best to help your children through the process, and assist you in creating a child-focused parenting plan. In a traditional divorce, the conflict often spills over in ways that can be very disturbing for children.
- Greater Control of Process. The Collaborative process gives you more control over the outcome of the divorce proceeding than if you allow a judge to make decisions for you. Judges have very little time to get up to speed on the details of your family and your case. As a result, they are the least likely people to be able to fashion appropriate orders for you and your family. In a Collaborative divorce, you and your spouse play an active role in looking at each other’s needs, the needs of your children, and arriving at a compromise-driven settlement.
- Better for Co-Parenting. Although nobody gets everything they want in divorce, by participating in the Collaborative process with a supportive Collaborative team focused on supporting both parties, you can reach an amicable resolution. The ability to successfully co-parent children after divorce is correlated with the amount of conflict the parents experience during the divorce process. Very few parents who go to a contested hearing can leave the divorce emotionally unscathed. If you and your spouse can reach a resolution together, rather than fighting it out in court, you are more likely to maintain a positive relationship, and your ability to co-parent with your former spouse is more likely to be preserved.
- Better for Complex Issues. Some cases are better handled in the Collaborative process than others. Complex cases where there is a chance that a judge may not have time to fully grasp all the issues are often a good choice for this process. Cases where the children have special needs, where there are business valuations, trusts, confidentiality concerns – all are examples of cases that may be a good fit for the Collaborative process.
- Ending the Collaborative Process. If either party breaches the terms of the Collaborative agreement or wishes to litigate at any point in the process, both parties must fire their attorneys and start over with new counsel. Experts who have worked on the Collaborative case cannot be used in a subsequent litigated divorce without agreement of both parties. While this is a deterrent for some to enter the Collaborative process, the rule does have a legitimate basis. Most people are cost-conscious and very few people want to pay to get new counsel up to speed. This rule ensures that both parties have “skin in the game” to continue in the Collaborative process when discussions become challenging. It also helps deter misuse the Collaborative process to prepare for litigation.
Not every case is right for the Collaborative process. In some cases, a party will need to have the court involved early to ensure full disclosure of financial information. In other cases, the Collaborative process may be a more expensive option than a traditional divorce. However, Collaborative divorce is an excellent option for families wishing to avoid the collateral damage of traditional divorce. Example of cases where Collaborative may be worth considering are where: 1) the parents are aligned about what is best for the children, 2) there are complex issues or assets that will require more attention than a judge will have time for on his or her busy docket, or 3) there is sensitive information that could become public in a traditional divorce case. Whether you decide to move forward with a Collaborative or traditional case is a choice for both you and your spouse, as you cannot enter the Collaborative process without agreement of both parties.
To schedule a consultation or for more information call (303) 309-1077. Our office is located at 1660 Lincoln Street, Suite 1525, Denver, CO 80264.