Collaborative divorce is a less expensive, less adversarial, more confidential and a quicker way for parties to successfully dissolve their marriage than the traditional litigation model for a divorce. Nevertheless, some misinformed family law attorneys have criticized collaborative divorce as a useful and viable way for parties to end their marriage. Here are four of the most common myths about collaborative divorce and why they are incorrect.
- You won’t have access to all of your legal options, so you will not be protected. Litigation attorneys only know how to use the court litigation process and its position based negations. Litigation, as a way of resolving family law disputes, has been recognized to be the most expensive and destructive method to resolve family law disputes. Collaborative divorce utilizes interest based negotiations instead of the position based negotiation that is utilized in litigation. Interest based negotiation permits the parties to create and choose from a variety of options to best meet the needs of each spouse and their children. The collaborative law team provides a context and mechanism through which both parties are able to identify their needs, feel as if their needs have been heard, and establish options to best meet the needs of both sides. This process provides far more protection to the parties in terms of achieving their goals and obtaining results that are in their best interest and the best interest of their children in a divorce process;
- You cannot insure that you will obtain full financial disclosure from your spouse in a collaborative case. In a collaborative divorce, the parties are assisted by a neutral financial professional. The parties also must contract and agree to full financial transparency. If a party is requested to produce particular records, those records will be provided. In addition, almost all financial records today are stored electronically. Consequently, it is becoming more difficult to hide money without leaving a paper trail. As a result, a competent financial professional can trace any assets to its source. If a person is paid in cash only, the neutral financial professional may have a more difficult task to perform. But it is no more difficult than the process that would occur if the quote “paid in cash spouse” was involved in a litigated divorce. In fact, the financial transparency of a collaborative divorce may make it easier for the financial professional to account for the cash received by the questionable spouse;
- If the collaborative process does not work, you have to change attorneys and start all over. Myth debunked. A central premise in all collaborative divorces is the “exclusionary provision”. This cause requires that if an impasse occurs during the collaborative process, the lawyers involved must withdraw and transition the divorce to trial attorneys. Statistical analysis of collaborative divorce in Florida and in other states demonstrates that a termination of the collaborative divorce process rarely happens. The success rate of the collaborative divorce process of resolving cases are virtually identical to the percentage of litigation cases that settle before trial. However, the collaborative law process is far less expensive both in terms of finances and emotional resources. The exclusionary provision is also important in collaborative divorce cases because it promotes a more confidential and honest exchange of information, options and ideas. Even if an impasse occurs, it is only the attorneys and potentially the other neutral professionals that cannot follow the parties into litigation. All agreements reached during the collaborative divorce process and documents exchanged in the collaborative process follow the parties into litigation and assist their divorce attorneys in quickly transitioning and concluding the divorce in litigation context; and
- The divorcing spouses must be in agreement on a majority of the issues before entering into the collaborative divorce process. You do not need to have most of your parenting or financial issues resolved before entering into the collaborative divorce process. Frankly, if both parties are on the same page on all their issues, a collaborative divorce may not be necessary. Nevertheless even divorcing spouses, who come to a common agreement on the major issues, can still be great candidates for a successful collaborative divorce if they are willing to work for a successful conclusion of their divorce case and follow the ground rules established by the collaborative law divorce participation agreement. In reality, the only requirements necessary for a successful collaborative divorce is for each party to have an open mind, be willing to trust the collaborative process (even if they don’t trust their spouse), and be in agreement to not litigate their divorce in court. Remember, in a collaborative divorce, you will be working with a team of professionals to assist you in finding various options/solutions that make sense in terms of each parties’ needs and goals.
Being involved in collaborative divorce cases is not always easy. Getting divorced is rarely simple or easy. However, unlike the traditional, divorce litigated case a collaborative divorce isn’t decided by a stranger to your family or your lives (the judge who would be involved in your litigation divorce). It is an agreement achieved by both parties working together with their attorneys and their neutral financial professional and mental health professional.
Board Certified Marital and Family Law Attorney Charles D. Jamieson is a supporter of collaborative divorce. If you are interested in learning more on how collaborative divorce can assist you in your anticipated or pending divorce case or if you have other questions regarding collaborative divorce, please contact The Law Firm of Charles D. Jamieson, P.A. online or call 561-478-0312.