What is Collaborative Divorce?
Collaborative “divorce” is actually a misnomer, because in a collaborative divorce, no one actually files for divorce. That is to say that all the issues pertaining to ending the marriage must be agreed upon by both parties prior to filing with the court. Custody, child support, spousal support (alimony), property dispersal, etc. all have to be settled and agreed upon by both parties. But what are the differences between a collaborative case and a normal divorce?
First, a collaborative divorce has to have two attorneys. Second, the parties and their attorneys enter into a “Collaborative Agreement.” This collaborative agreement is a contract entered into by all signatories that pledges them to engage in the collaborative process with a forthright, collaborative, and low conflict attitude, but also limits the scope of the attorney’s representation. Most notably, if the collaborative process is not successful, the attorneys must withdraw from the case, and the parties would have to seek new representation to proceed with a regular dissolution or divorce. Frequently when normal dissolution matters are not successful, the attorney that was unsuccessful in negotiating a dissolution settlement will represent the client in the subsequent divorce process. This cannot happen in a collaborative divorce. Third, collaborative divorces often have a neutral financial expert and/or child expert to help craft a fair and equitable agreement for both parties.
The parties may agree to bring a financial professional into the process to help with tax issues, budgeting, creating cash flow analyses and answering other financial questions. Further, if a business or real estate needs to be appraised, the parties can agree to utilize a single expert, instead of having to hire two competing experts, which is common in litigation and adds to the costs.
What are the benefits of Collaborative Divorce?
There are many benefits of collaborative divorce, primarily if the parties have minor children. When children are involved, the parties must be able to communicate effectively in order to continue to co-parent the children for years after the divorce. The collaborative process helps the parties get started on the right path, by encouraging the parties to communicate with each other, instead of through their attorneys. And by avoiding the animosity that comes with litigation, the likelihood of putting the children in the middle of the divorce is reduced significantly.
In Michigan, when the parties litigate, the case is identified as Plaintiff vs. Defendant, immediately casting the parties as adversaries, while reducing the children to bit players. The collaborative process avoids the courtroom labels, which helps the parties avoid the “me against them” mentality. This allows the parties to focus on the children and to create a win-win-win settlement that is truly in the best interests of the children and financially as beneficial to the parties as possible.
In addition, the process gives the parties time to ensure that they are making educated decisions. Although every divorce is unique, courts tend to force parties into cookie cutter positions. And while many cases settle through court ordered mediation, the mediation frequently takes place shortly before a scheduled trial, putting pressure on the parties to make hasty decisions in order to avoid the time and expense of a trial. Michigan judges have to meet certain docket management goals and pressure parties to resolve cases within their imposed time constraints. Without court imposed deadlines, parties in a Collaborative Divorce have time to educate themselves regarding the implications of any settlement options and to sleep on any settlement offers to make sure they are making the best decisions.
The additional time also allows the parties to be creative in crafting a settlement that is favorable to both parties and the children.
Another significant benefit of a collaborative divorce is the ability to keep personal and financial information private. The courts are public forums. In litigation, the parties frequently air their personal issues in front of a crowded courtroom and file personal and business information with become part of the public record, which anyone can view. In Michigan, many of the courts allow online access to court files, including all documents filed in a particular case. In a Collaborative Divorce, just like celebrities, can keep this information private.
Finally, a Collaborative Divorce is usually less expensive and time-consuming than litigation. And by avoiding the courtroom, the parties are assured that most of their attorney fees will be for time the attorney actually spends working on their case and not for spending an entire morning in a courtroom waiting for their case to be called.
Collaborative Divorce is an ideal method for parties to resolve all of the issues in their divorce, with the assistance of attorneys, in a manner that addresses everyone’s legal, financial, and emotional needs.