- What is a collaborative divorce?
Collaborative divorce is a private, respectful, transparent settlement process that insulates a family dispute from the slash-and-burn tactics of litigation by moving the entire divorce process to a cooperative negotiating table. The benefits include lower cost, flexibility, privacy, confidentiality, open exchange of information, preservation of family relationships and custom solutions for unique family issues.
- Isn’t the collaborative process just like mediation?
No, mediation is an adversarial process that offers an alternative settlement option for couples just before they litigate their dispute in court. By contrast, a collaborative divorce is a complete divorce process that encourages cooperative problem solving from the beginning. Mediators are neutral professionals who encourage the parties to settle in an atmosphere of hostility and mistrust. By contrast, collaborative attorneys cooperatively advocate for their client in an atmosphere of safety and respect without the threat of litigation.
- Is a collaborative divorce less expensive than litigation?
Yes, on average a collaborative divorce will be significantly less expensive compared with a litigated divorce. That’s because there are no court fights over discovery disputes, no time wasted waiting for a judge. The parties have agreed in advance to be respectful and cooperative rather than hostile and adversarial. Remember, fighting costs extra and there is lots of it in a litigated divorce.
- Is a collaborative divorce right for every couple?
No, there are some couples who should not choose the collaborative process. For example, if there is mental illness in the family, the parties absolutely refuse to compromise, they are abusing substances or one member is dishonest, the couple is unlikely to succeed within the collaborative process. On the other hand, if the couple wants a divorce that saves money, preserves family relationships, protects their children, lets them avoid becoming enemies after the divorce or they want to forego the emotional destructiveness of a litigated divorce, they are good candidates for a collaborative divorce.
- Will I be safe during a collaborative divorce?
Yes, an experienced team of two attorneys, a neutral financial professional and a mental health professional monitor the emotional tone of all meetings and keep the collaborative environment safe for everyone. The parties agree to a code of conduct and the attorneys and mental health professional enforce this code throughout the collaborative divorce by using time outs, reminders and private discussions with anyone who gets angry or out of control.
- Is a collaborative divorce faster than litigation?
In general there is less delay waiting for a judge, there are no discovery hearings where the parties and their attorneys fight over documents being produced, there are no temporary hearings and no fights about the admissibility of evidence during a collaborative divorce. Of course, not all collaborative divorces will be faster than all litigation cases, but on average a collaborative divorce will take less time and cost less than a litigated divorce.
- Can I be certain my spouse has disclosed every document?
No, but the problem of dishonesty can happen in a litigated case as easily as in a collaborative divorce. There is no guarantee every bit of financial information has been discovered in either litigation or a collaborative divorce. However, compared with adversarial litigation, it’s more likely that a party who voluntarily agrees to enter the collaborative process and share all information will be transparent.
- Can I force my spouse to participate in a collaborative divorce?
No, a collaborative divorce is entirely voluntary. Both parties have to agree to enter the collaborative process. A court cannot force the couple to enter the collaborative process as it can order mediation. However, the benefits of a collaborative divorce are so compelling that most reasonable individuals want to enter the collaborative process once they hear about its benefits. Only if they are too angry, or their attorney advises them against a collaborative divorce, are they likely to reject the idea of a collaborative divorce.
- Can either of us terminate the process?
Yes, each party has the right to terminate the collaborative process at will. The collaborative process is totally voluntary, and if you are not satisfied with progress during a collaborative divorce, you can terminate it at any time. However, you must engage new litigation attorneys if you terminate the collaborative process.
- We are both angry–can we still do a collaborative divorce?
Yes, just because you’re angry at each other is no reason to choose litigation. Going to court to get a divorce will just make your anger worse. If you choose a collaborative divorce, you will learn to communicate with your spouse, be more respectful of each other and you can preserve family relationships following your divorce. That’s better for your children. An experienced collaborative divorce team expects anger and other strong emotions during a collaborative divorce; they are trained to deal with their client’s strong feelings during the collaborative process.
- Do we both need lawyers for a collaborative divorce?
Yes, each party must be represented by an experienced collaborative attorney to make the process work. It’s neither safe nor smart to represent yourself in any legal process, especially a divorce: you’re too emotionally involved, you don’t know Texas law and you need the guidance of an experienced collaborative attorney to help you through the process.
- Will the collaborative process replace traditional litigation?
No, there will always be a need for litigation as well as the collaborative process. Some couples are just not suited for the collaborative process. For example, if there is mental illness, substance abuse, or an inability to compromise, the parties need to be in a court room where the judge can impose a solution to their dispute. However, most mature couples can benefit from using the collaborative process to divorce.
- What is the participation agreement?
The participation agreement is a contract between the parties that sets out the terms of a collaborative divorce so everyone understands their rights and obligations. The agreement usually includes commitments to be transparent, negotiate in good faith, jointly engage any experts, and a requirement that if the collaborative process terminates, the parties will engage new litigation attorneys to complete their divorce.
- What happens if we can’t reach a settlement?
If you reach an impasse, the parties have two options. They can agree to enter a collaborative mediation to work through the impasse or they can terminate the collaborative process and hire new litigation attorneys to take their case to court. Most parties agree to collaborative mediation first and opt for litigation only if mediation fails. The good news is that only about five percent of collaborative cases terminate and go to litigation.
- Can the collaborative process address all my divorce issues?
Yes, a collaborative divorce can address and resolve any issue related to your divorce. This includes questions of spousal support or contractual alimony, child support, custody, a parenting plan, pre- or post-nuptial agreements, property division, shared parenting arrangements, parental relocation disputes and post-divorce conflicts.
- Is a collaborative divorce right for me?
Generally, the answer is yes, but it depends on your goals and mental state. If you want a divorce that costs less, offers dignity, privacy, transparency, respect, preserves your family relationships and insulates your children from the destructiveness of a litigated divorce, then a collaborative divorce is right for you. On the other hand, if you want your day in court to make your spouse pay for her infidelity, or you refuse to compromise because you feel that’s a sign of weakness, then a litigated divorce is more likely right for you. The best way to choose between a collaborative and a litigated divorce is to learn more about each and then make up your mind based on the costs and benefits of each. If you need more information, contact Harry for a personal consultation.