The pretext to any collaborative divorce is that both parties basically agree and make a pledge to negotiate in good faith to reach a settlement that works for both parties. Integral to a collaborative divorce is a team approach, using a neutral coach and experts. When explaining the approach to a client recently, he asked, “couldn’t my attorney just figure it out with the other lawyer and then submit the agreement to the judge?”
The question surprised me since people usually come to my office for a collaborative divorce or mediation. Similarly, my response surprised him as well when I said, “yes”.
That’s right. The court model for divorce or litigation can be used in a similar fashion as a collaborative divorce. Both attorneys can negotiate on behalf of their clients and hammer out an agreement that is then submitted to the judge. And there are couples who might consider this approach, especially if they are not sure that they can or want to work directly with their spouse or that they want to put the effort into working with a team of experts that can be involved in a collaborative divorce. Yet it’s not a recommended path for a variety of reasons.
First, collaborative divorce attorneys and the team of experts involved have special training for the types of disputes that arise during a domestic settlement negotiation. This empowers them to diffuse sometimes contentious situations. As somebody who has been a divorce attorney for more than 30 years, even couples who agree on virtually everything and get along great run into bumps during the negotiation. Without trained experts, these bumps can escalate into impasses in the negotiation unless handled skillfully. This can drag out the negotiation or, worse, put all the decision-making in the court’s hands. The collaborative team is specifically trained to expect and to diffuse these impasses.
Another key difference is flexibility. In the court model, matters that need resolution are in many ways part of a math formula: division of assets; child support; alimony; parenting schedules; etc. There’s little room for a negotiation that strays away from these formulas because everything is analyzed in comparison with “What do we think the judge will do?” Collaborative divorce is much different in this regard.
For example, let’s say one spouse wants to stay in the family home for the sake of the children and adjusting to the divorce. If that spouse cannot afford to buy the house from the ex, there is very little that can be done in the court model. The judge will order the family home sold with the profits divided equally by the couple. Collaborative divorce can offer negotiation options for special circumstances like these.
One possibility is that the couple comes to an agreement that allows said spouse to remain in the family for a certain period of time after the divorce and then either buys out her ex or sells the home. In a collaborative divorce, with the help of the financial experts as part of the collaborative team, the negotiation can provide financial scenarios/solutions where the spouse could remain in the home even though he/she can’t afford to (e.g. reduced alimony payments; greater share of the retirement assets to the spouse moving out of the family home, etc.).
Helping couples learn to communicate with each other as a divorced couple is another difference. This is a critical part of a collaborative divorce as it often helps eliminate return trips to court to settle disputes that may arise as ex-spouses co-parent. As much as couples want to reduce the cost of the divorce, if they don’t learn how to communicate with each other constructively chances are whatever savings are realized will probably be given back in attorney fees for future court dates to settle issues rather than talks things out without lawyers and outside the courtroom.
Perhaps the biggest difference between a collaborative divorce and a litigated divorce lies in the emotional part of a process. The parties to a collaborative divorce are assisted in understanding and articulating their positions and interests. The negotiation will be focused on the parties themselves creating a satisfactory resolution in the context of all of their needs and concerns. This is a radical departure from the litigation model where the lawyers do all of the talking and negotiating and the parties are passive (and sometimes absent) participants. In my experience, it can be empowering for a party to be an integral part in crafting the terms of their divorce.
A collaborative divorce team includes a divorce coach. Many coaches are mental health professionals who have undergone specialized training for clients’ emotional wellbeing both during the divorce negotiation and after the divorce. Not only does the coach notice trigger points during a divorce negotiation when a spouse might be losing their composure or worse, but they also help the team understand that an obstacle to settlement might be more about an emotional issue than a numbers issue. Armed with that additional insight, the collaborative team can try to address that emotional issue as part of the negotiation.
Even in a collaborative divorce, the desire to divorce is not always mutual. Often the spouse who is reluctantly going along with the divorce feels a hurt they believe their soon-to-be ex does not. A collaborative divorce can provide the mechanism for his/her feelings to be heard and recognized. Often times this kind of sharing helps foster a conversation where both can share their feelings of hurt at the dissolution of the marriage. Such a scenario would be very difficult to come by in a litigation utilizing the courtroom model even with the most compassionate attorneys.
Does that mean collaborative divorce is better than litigation? It depends on who you ask. But if you’re looking for a divorce that doesn’t reduce several years of a marriage and the circumstances that are distinct to your family into a standard formula, collaborative divorce does offer choices and solutions.