Tuesday, January 1, 2013

Considering Collaborative Law for Your Divorce?

If not, you should!

This is a time of the year when people set goals, make resolutions and often consider life changes.  One of the biggest life changes that is frequently considered in January is getting a divorce.  A wise person will look around to determine what options might be available and to find a compatible attorney.

The "default" approach, or traditional way, to divorce is the litigation-court system.  Typically, one party files for divorce, sets a temporary hearing and has papers, including a restraining order, served on the spouse. The parties go to court, negotiate temporary orders and then prepare of a final trial by doing Discovery.  That's the formal process of requesting and obtaining documents and information from the other side.  After that, the parties normally go to mediation just before trial.  The case usually settles at mediation, but if it doesn't, they go to trial.  The trial is usually about a year or more after the case was filed.

A different way to settle the divorce issues is offered by some attorneys.  Collaborative Law is a relatively new process for coming to an agreement on the terms of a divorce.  It involves having a series of meetings between the parties, their attorneys and some other neutral professionals.  Like mediation, it usually works.  The parties agree to not go to court.  If the process breaks down and they don't reach an agreement, the attorneys have to withdraw and the parties start over with new attorneys.

Here are some of the advantages of Collaborative Law:

1.  Privacy.  There are no court hearings, very few documents are filed with the court and the discussions are confidential.  The decisions are made in private. Embarrassing details are not exposed and prominent public figures or families are protected.

2.  Control of the outcome.  The parties make their own decisions, rather than having a Judge, who is a stranger to everyone, do so.  There's no agreement or settlement unless both parties agree.  The parties decide their own fates.

3.  Flexibility.  Instead of following the rigid state guidelines for support or visitation, the parties are able to create something that matches their needs and abilities. There are always better ways than dividing everything 50-50.  People can be very creative in finding solutions.

4.  Expert guidance.  We normally use a neutral therapist and neutral financial advisor to work with both parties.  As a result, the meetings run smoothly and we have experts helping us with kid issues and financial issues.  It is a safer environment inn many ways for both sides.  Many people going through a divorce don't have much financial knowledge or don't really know effective ways to work out sharing of time with the children.  The neutral experts help with both.

5.  Efficiency. There are many ways that this process is efficient.  Information gathering is much more focused on actual need for information and on valuable information.  In litigation, very broad requests are made and they become very time-consuming for both sides.  In Collaborative, the Financial neutral specifies what information is needed and that's what is produced.  Also, instead of having duplicate experts working on property or children's issues, we use single, neutral experts who work for both parties.  Steps are taken as needed rather than just because it's the way it's always done.

6.  Control of timing.  In litigation, the Court usually will impose a schedule that is binding on both parties.  Sometimes that becomes inconvenient, but it's nearly impossible to change.  In Collaborative cases, the parties work at their own speed and the Court must leave them alone for up to two years. They finish when they are both ready to finish.

7. Everyone gets heard.  Collaborative cases utilize a series of meetings where both parties actively participate.  In addition, the parties get to sometimes talk privately with each of the experts.  In litigation, there are strict rules of evidence and procedure that limit the parties' ability to speak freely.

8.  Respectful environment.  Divorce cases can get ugly in many ways.  In Collaborative cases, we always have the neutral therapist managing meetings and helping the parties function at their highest levels.  In addition, the attorneys also work together to make sure everyone behaves well.

9.  Creative solutions.  When litigation cases are settled, they also always follow a "standard" path -- guidelines for child support and visitation and property division within a narrow range of possibilities.  If the case goes to trial, the result is usually even more standardized.  In Collaborative cases, the parties are free to experiment and try alternate custody arrangement, different support terms and property divisions that focus on the needs and interests of the parties more than a standard 50-50 to 60-40 division range.

What to do?
If you are facing a possible divorce, you should talk with an attorney about Collaborative Law as an option.  If the attorney says it's not appropriate, you should consider getting a second opinion, especially if your spouse wants to try Collaborative.  For help in finding a good Collaborative attorney, see prior articles in this blog on that topic.

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