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Divorce Alternative – Collaborative Divorce

posted by admin 10:51 AM
Wednesday, May 11, 2011

Last week I discussed two divorce alternatives – DIY divorce and mediation. As you may have surmised, I have reservations about both of these options.  Especially about the DIY divorce!  But mediation does have its place as does another type of divorce alternative that is gaining in popularity – Collaborative Divorce.

Collaborative Divorce

Simply put, collaborative divorce occurs when a couple agrees to work out a divorce settlement without going to court.

During a collaborative divorce both you and your husband will each hire an attorney who has been trained in the collaborative divorce process. The role of the attorneys in a collaborative divorce is quite different than in a traditional divorce. Each attorney advises and assists their client in negotiating a settlement agreement. You will meet with your attorney separately and you and your attorney will also meet with your husband and his attorney. The collaborative process may also involve other neutral professionals such as a divorce financial planner that will help both of you work through your financial issues and a coach or therapist who can help guide both of you through child custody and other emotionally charged issues.

In the collaborative process, you and your husband as well as your respective attorneys, must sign an agreement that requires that both attorneys withdraw from the case if a settlement is not reached and/or if litigation is threatened.  If this happens, both you and your husband must start all over again and find new attorneys. Neither party can use the same attorneys again!

Even if the collaborative process is successful, you will usually have to appear in family court so a judge can sign the agreement. But the legal process can be much quicker and less expensive than traditional litigation if the collaborative process works.

However, I have found that the collaborative method often doesn’t work well in complicated situations or when there are significant assets because, just like in mediation, all financial information (income, assets and liabilities) is disclosed voluntarily. Often the husband controls the “purse strings” and the wife is generally unaware of the details of their financial situation. When these circumstances exist, the door is often wide open for the husband to hide assets. Many high net worth divorces involve businesses and professional practices where it is relatively easy to hide assets and income. Additionally, the issue of valuation can be quite contentious.

Similar to Mediation, as a general rule, Collaborative should not be used if:

- You suspect your husband is hiding assets/income
- Your husband is dominating and you have trouble speaking up or you’re afraid to
- There is a history or threat of domestic violence (physical and/or mental) towards you and/or your children
- There is a history of drug/alcohol addiction

Because of these factors, I usually advise my clients to work with an attorney that can go to court and litigate for them if it becomes necessary. The reason is, if the collaborative process
breaks down, you don’t want to start all over again from the very beginning with a new attorney and pay new retainer fees.  That is a huge waste of money.

Most divorce attorneys, at least those that we recommend, will always strive to come to a reasonable settlement with the other party. But if they can’t or if the other party is completely unreasonable then, unfortunately, going to court might be the only way to resolve these issues.

All content on this site/blog is for informational purposes only,
and does not constitute legal advice. If you require legal advice, retain
a lawyer licensed in your jurisdiction. The opinions expressed are solely
those of the author, who is not an attorney.
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