There are several ways to obtain a divorce in California. The spectrum of options ranges from the do-it-yourself divorce; mediation; collaboration or traditional litigation. However, no one particular option is one-size fits all. You must decide which method is best for you and your family under the very specific facts/circumstances. With that in mind, here are some pros and cons one must consider before choosing collaborative divorce as your option.
PROS
- Alternative to Litigation – Collaborative divorce offers an alternative to litigation for those parties who are willing to work on reaching a settlement without taking the matter to court. In the collaborative process, the parties and their attorneys sign an agreement not to go to court. This allows the parties to work together with their collaborative team to reach a settlement on their terms taking into consideration the individual needs of their family to enable them to move forward in a more productive manner. Litigation subjects the parties to the rulings by the court as well as the court’s time table for setting hearings which can prolong the resolution of the matter.
- Parties are in Control of the Collaborative Process – In Collaborative divorce, the parties are in control of their own fate. Their fate is not left to the Court to decide. The parties with each of their collaboratively trained attorneys and additional assistance provided by other team members, such as coaches and financial neutrals, resolve the issues themselves. This means the parties design their own unique settlement that is best suited for the needs and goals concerning their family. In litigation, the control over the process is largely in the hands of the judicial officer assigned to the case, a judicial officer that may not know very much about the parties and/or their children. In addition, in litigation, the parties are subject to the court’s time table which means it could take months to resolve one issue.
- Private – Everything filed in a litigation case becomes part of the court’s file which is available to the public. In a litigated divorce proceeding, it is common for the parties to prepare declarations explaining to the court why or why not one party should obtain the relief they requested from the court. Oftentimes, these declarations contain various allegations and mudslinging amongst the parties that they do not necessarily want the public to have access. These declarations could even be obtained by the parties’ children at some point allowing them to read all of the horrible things their parents said about each other. In addition, financial information can also be contained in the court’s file allowing other’s to see private financial information about the parties.
In collaborative divorce, there are no written declarations which contain and perpetuate mudslinging amongst the parties. All statements and discussions made by the parties during settlement discussions are not filed with the court and remain private amongst the parties and their team. The majority of financial documentation can be kept between the parties as well (except as to those documents that must be filed with the court). In high profile cases, the media is less likely to be alerted as to disputes regarding child custody, support and/or other issues because no motions are being filed.
- Each Party has their Own Attorney – When the parties are not on equal footing (i.e. one party is more financially savvy or aware than the other), they tend to feel better having their own attorneys there by their side to help protect their interests. Other forms of marital dissolution, like mediation, do not automatically provide for each party to have their own representation. In collaborative, because each party is represented they will likely feel more secure during the process and the parties are able to focus more on settlement.
- Goal to Keep High Emotion Out of Process – The goal of collaborative divorce is to keep high emotion out of the process. In collaborative divorce, the help of other professionals is enlisted to help keep emotions under control during settlement discussions. Oftentimes, coaches (mental health professionals) are called in to assist in teaching the parties how to communicate their differences in a more calm and productive manner so that they can learn to speak with each other more like business partners as opposed to former spouses. This keeps the fighting down and allows the entire team to apply their efforts toward settlement.
CONS
- If Process Fails both Attorneys are Fired – One of the cons of collaborative divorce is if either one of the parties and/or their attorney’s choose to terminate the collaborative process, both attorneys and the rest of the collaborative team is no longer able to proceed in assisting the parties in their case. The parties must each obtain new attorneys and start over. This could add additional time and cost in obtaining dissolution through litigation. Thus, if one party chooses to disengage, mislead and/or not participate in the collaborative process unnecessarily prolonging it, the process fails for both parties, causing both to obtain new representation. This is not necessarily fair to the party who in good faith worked very hard to obtain a settlement through the collaborative process.
- No Relief from Court – If push comes to shove, and no settlement on an issue can be reached, there is no ability in the collaborative process to seek relief from the Judicial Officer assigned to the case unless the parties were to terminate the collaborative process and commence with litigation. There is no ability to “force” a party to act in good faith, by disclosing documents or coming to a settlement on the issues through court action.
- Not Suited for High Conflict Couples – Collaborative divorce is a method that is not well suited for parties that have a history of domestic violence as it is unlikely that the abusive spouse will be able to sit calmly and discuss settlement terms without resorting to violence and/or manipulation. In addition, collaborative divorce is not well suited for a party who is fearful that the other party may be hiding assets/debts and is not willing to play with an open hand. Collaborative divorce requires some amount of trust amongst the parties to be successful.
- Process Fails Even if Only One Party Refuses to Cooperate – As stated above, if one party fails to cooperate the process fails. If one party refuses to come to a settlement then the process fails. If one party fails to adequately disclose asset information the process fails. If one party delays the process by not showing up for meetings with the team, the process fails.
- Not necessarily the least expensive method- Collaborative divorce can be costly especially if the process fails and the parties are forced to start over and commence with litigation and new attorneys. Other methods for divorce like, a do-it-yourself divorce and mediation would more likely be cheaper than collaborative divorce.