Filing for divorce has always been an emotional and stressful act filled with complications and difficult decisions. Prior to 2012 there were really only two ways to file for divorce: through mediation or through litigation.
While the divorce could often be resolved amicably through mediation, it became clear by the 2000s that there needed to be another way. In Ohio in 2012, “collaborative divorce” became a new method of filing. Since then, other states followed suit and now collaborative divorce is an option in all 50 states.
Collaborative divorce is similar to mediation in various ways. It requires that both parties work together to resolve their issues. It’s different in many ways, too, such as each party being represented by their own lawyer, and agreements such as “no court” being signed by each party, demonstrating their resolution to keep their divorce out of court.
So what is collaborative divorce exactly? Is it for you? Do you think it will work for you and your spouse? Let’s take a look.
What Is Collaborative Divorce?
If divorce by litigation can be described as “fight and win”, collaborative divorce can be described as “troubleshoot and solve”. In a collaborative divorce, neither spouse files for divorce. Instead, both parties agree to all of the issues pertinent to the divorce –property division, child support, custody, alimony, and any others– by working with their attorneys and ironing out solutions to these problems before filing in court.
Finally, the divorce is filed by the attorneys as an uncontested divorce, which means that the court doesn’t need to rule on anything. This type of divorce offers less financial incentives for the attorneys, too.
How Does Collaborative Divorce Work?
In a collaborative divorce, both sides have to be open to compromise and cooperation. Both parties begin by signing a “participation agreement”. This disqualifies their attorneys from continuing to represent them if the process fails, and they must take their divorce to court. In this circumstance, each party must hire a new attorney.
Discussing the Divorce with Your Lawyer
Each party must meet with their attorney initially to discuss their expectations. They figure out with their attorney what they want to achieve in terms of property, custody, alimony, etc. before meeting with the other party and their attorney.
Meeting with Your Partner
After both parties know their goals, they will meet in the first of likely many “four-way” meetings altogether, with each party and their attorney present.
These meetings may be joined by other experts, such as financial experts, child custody experts, and others pertaining to the divorce. A trained mediator may even be brought in if the parties are having trouble coming to an agreement. These experts and mediators are neutral in the divorce, seeking only to provide advice for the best possible outcome.
Is Collaborative Divorce Right for You?
You should first speak with an experienced family attorney before agreeing to a collaborative divorce. This attorney can take a look at your goals, your assets, and your family dynamics to provide a recommendation that’s right for you and your spouse.
Talk to a Divorce Attorney
A qualified divorce attorney will be able to help assess your situation and determine if collaborative divorce is the right course of action. If you or your spouse are particularly combative, if there are major conflicts that need to be presented such as addictions, gambling debts, abuse, or the like, collaborative divorce may not be right for you.
Getting a recommendation from a divorce attorney helps you decide which course to take. You don’t have to agree to hire this attorney to represent you, either; you can simply hire them as a consultant to determine what is best for you.
What Are the Benefits of Using a Collaborative Divorce?
Collaborative divorce has many benefits. To begin, it limits the cost of divorce, and the financial incentives that lawyers in a litigation-style divorce often command. A collaborative divorce is generally much less expensive than litigation.
- Attorneys are specially trained in collaborative divorce. It’s a simpler process that usually takes only 8-12 months to complete. Litigation divorces can drag on for years.
- It provides new solutions via the use of attorneys and field experts to consider what’s best for everyone involved.
- The process is comprehensive and considers all assets, concerns and other facets of the family in the divorce. The involved parties commit to being collaborative, low-conflict, and candid.
- It is a proactive approach that allows couples to sidestep potentially adversarial or contentious situations. The parties must set the terms of the divorce together instead of the court decreeing them, so a resolution can often be reached much more quickly.
- Another, generally more peaceful alternative to collaborative divorce or traditional (litigious) divorce is mediation.
What is Mediation?
Mediation is an alternative dispute resolution process where a third-party mediator guides a separating couple to resolve issues related to property, alimony, custody, and other matters. It’s a good option for spouses who want to avoid legal action.
What the Collaborative Process Is and Is Not
The collaborative process is:
- A process to bypass litigation
- Effective when both spouses want to keep the divorce from being settled in court and are willing to work together
- A process that requires effective compromise for both parties
The collaborative process is not:
- Mediation
- Litigation
- Settled by court: the divorce is filed as uncontested and the courts have no say in it.
Do I Need An Attorney for Collaborative Divorce or Mediation?
For a collaborative divorce, each spouse must hire their own attorney, and all parties (attorneys and spouses) must agree to keep the divorce out of litigation. The parties enter into a Collaborative Agreement together that binds all parties to a collaborative divorce. If the parties are unable to come to a successful collaborative divorce, the spouses must each hire their own attorneys and prepare to take their case to court (litigation).
For a mediation, the mediator does not have to be an attorney. Many family law attorneys, however, spend time working as mediators for divorcing spouses.
Finalizing the Divorce
The collaborative process ensures both parties finalize the divorce together, through collaborative work towards a resolution.
Once both spouses have come to an agreement on everything governed by the divorce, their attorneys file the divorce as “uncontested”. The court doesn’t weigh in on the settlement of the divorce as it has already been reached by the involved parties.
To learn more about your options, contact Willick Law Group and schedule your consultation today.
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