Tuesday, March 15, 2016

Reality Testing -- What Do You Expect from a Collaborative Divorce?

If you are thinking about using Collaborative Law to get a divorce, it's a good idea to be aware of what you are expecting and it would be very helpful to your attorney if you discussed your expectations for the process.

Do you have great expectations about Collaborative Divorce?  Are you expecting any of the following?

1. It should be an easy experience.  "Easy" is a little like "fair" -- it's a subjective term and everyone sees it a little differently.  In general, you should keep in mind that this is still a divorce, with lots of emotions.  You are un-doing years of marriage and many decisions made over the years.  Divorce is rarely "easy", no matter which process is used.

2. It should be quick.  Again, "quick" or fast is relative.  No divorce with significant children's issues or substantial property can be quick.  There's a lot at stake and we all have to be careful to make sure the best results are obtained by everyone.

3.  It should be painless.  Again, this is a divorce.  Divorces are rarely painless.  We do have an advantage in Collaborative Divorces because we use a neutral therapist and a neutral financial who help the process run better and with less conflict than many litigated divorces.  There's bound to be some pain in ending the marriage, but it will generally be much less painful, just not quite painless.

4.  It should be cheap.  In a similar vein, a Collaborative Divorce is probably less expensive than  many or most litigated cases, but it can still cost a substantial amount.  The more complicated the
issues, the more meetings and preparation are required.  That also means the cost increases.  Keep in mind that complicated cases are definitely more expensive in litigation. Collaborative may not be cheap, but it's a wise expense.

5.  You should get everything you want.  That never happens, regardless of the process.  However, in Collaborative Divorces, we do make an effort to focus on what both sides want and need.  We do try to obtain as much of those results as possible. We probably come closer to getting what you want than would happen if we just left everything up to a Judge.

6. The lawyers will handle everything for you.  Not true.  We help you determine your goals and needs, and we help you prepare for meetings and discussions. We do some background work with the other professionals.  But, the parties have a major role throughout the process and they speak up directly in our meetings.  This is not a passive process for the clients. The result is that the parties have much more influence on the final outcome of the case.

7.  You should come out of the divorce with the same standard of living that you experienced while married.  That's not likely in most cases.  We usually still have the same size pie to be divided now into two households, rather than supporting just one.  We have to be realistic.  Fortunately, the neutral financial expert normally helps both parties plan their budgets for their post-divorce lives.  That usually helps reduce the impact on day-to-day living.

So why use Collaborative?  As you can see, Collaborative Divorce may not be exactly what you expect.  Still, people are choosing the process because it is very private, they have more control over the outcome, they can create unusual provisions, it's less stressful and they can maintain civil relationships with the co-parent of their children.

Bottom Line with Collaborative Divorce:  You can get a good result if you are patient and put in the effort.

Tuesday, March 1, 2016

Is "Cooperative" Divorce Right for You?

Probably not, but let me explain why.

Two different approaches. If you have been researching Collaborative Divorce, you may have run across the term "cooperative divorce". Or, you may ask a lawyer about Collaborative Law and the lawyer starts suggesting cooperative divorce. While Collaborative Divorce is based on a statute in the Texas Family Code, cooperative divorce is not.  However, cooperative divorce is sometimes promoted by lawyers who either haven't been trained in Collaborative Law or who just haven't fully made the transition to Collaborative Law.

Main difference.The biggest difference between Collaborative and cooperative law is that in Collaborative Divorce, the attorneys must withdraw from representing the parties if the process breaks down and the parties head to court, while in cooperative law, the attorneys don't have to withdraw.  The Texas statute is clear that for a case to be operated under the Collaborative process, the withdrawal requirement is mandatory.  Without it, the process is not "Collaborative Law".

Reason for "cooperative". Probably the main reason why attorneys sometimes want to use the cooperative process, even if their client came in wanting a Collaborative Divorce, is  that they don't want to withdraw if the process fails.

Benefit of requiring withdrawal.  My experience is that the threat of withdrawal upon failure is one of the biggest reasons why the Collaborative process works.  If the discussions come to an apparent impasse, the parties will back up and try another approach rather than just stop and go to court.  The attorneys and other professionals don't want to lose business (and income) and the parties don't want the expense of hiring new counsel and getting them up to speed on the case.  There's also the loss of time for the transition that slows down the process.

Some other missing ingredients.The Texas Family Code provides some other benefits under Collaborative Law that are not available for cooperative divorces.
  • Confidentiality.  The meetings and discussions in a Collaborative case are confidential.  They are not in a cooperative divorce.
  • Privacy.  Cooperative divorce has no privacy protection.  Collaborative Divorce does.
  • Discovery.  There's no requirement that information be shared freely in cooperative divorces.  In Collaborative cases, information is shared and is usually gathered and reviewed by a neutral expert.  That also doesn't happen in cooperative cases.
  • Mistakes.  There's no duty to correct mistakes in cooperative cases, but there is in Collaborative cases.
  • Scheduling.  The court still controls scheduling in cooperative cases.  It does not in Collaborative cases.  The independence in Collaborative cases gives the parties much more freedom to take the time they need and want to resolve the issues. 
There are other differences between the systems as well.

Is there a role for cooperative divorce?  Possibly, if the divorce is a very simple case, probably with no kids and little or no disagreements.

If there are complicated children or property issues that require a thoughtful and open approach, Collaborative Law is probably a better choice.