Collaborative Divorce Process--The Pros and Cons

While we at believe that Collaborative Divorce is the preferred method of resolving your conflict, we recognize that it is not necessary the best option for everyone.  There are some aspects of the process which—while we hate to call them “cons”—make it not ideal or appropriate in all situations.

The Pros of the Collaborative Divorce Process are, in our opinion, quite obvious, but just to summarize a few:

·        Control:        The biggest benefit is the level of control you and your spouse have over the process.  You schedule the meetings.  You determine the pace.  You hire the professionals.  You decide what issues to discuss and in what order.         

·        Privacy:        Litigation is open to the public.  Your entire case file can be accessed.  In Collaborative Divorce, you can maintain your privacy—and integrity.  This could be crucial depending on your personal situation, including the source of your earnings (i.e., cash businesses…).

·        Reduced Costs:         People often question how the process can be less costly when you involve multiple professionals.  The simple answer is that you are taking time away from what you would pay your lawyers and using neutrals.  By way of example—instead of paying two lawyers $350 per hour to sort through the finances independently (i.e., a combined $700 per hour), you pay one financial professional at a rate of $200 per hour to accomplish the same task. 

·        Innovative Solutions:             Unlike litigation, where you are confined by what the law “allows” or what a Judge has “authority” to order, in the Collaborative Divorce Process we focus on what is best for you and your family, seeking innovative solutions that best meet your needs regardless of whether a Judge would have the authority to craft the same solution.

The Cons of the Collaborative Divorce Process are, largely, not negatives, but recognition of unique circumstances in particular cases wherein the process is not appropriate for the parties, including:

·        Domestic Violence:                 The Collaborative Divorce Process is not appropriate in situations where there is a history of domestic violence.

·        Substance Abuse:                    Where one of the spouses is dealing with substance abuse issues, you may be able to pursue a Collaborative Divorce—but you will want to include multiple mental health professionals to safeguard the process

·        Terminating the Process:      Pursuant to the black-letter of the Participation Agreement, once you enter the Collaborative Divorce Process you are bound to it unless you formally seek to disengage—at which point there is a 30-day cooling off period, both parties would have to hire new attorneys and you would lose all the data and information

·        Lack of Control Over Other Side/Inability to Seek Judicial Intervention:  While you control tot Collaborative Divorce Process, it does require cooperation from your spouse and their attorney.  Without it, you may feel lost, with nowhere to turn for help. Of course, the inattentiveness and unreasonableness of your spouse’s attorney is a real concern in litigation—the difference being that it is less likely to occur in a true Collaborative case with Collaboratively trained attorneys.  Further, Judges are loathe to make real decisions on interim issues via motion practice—often sending you to mediation—so you are not really missing this option within the Collaborative Divorce Process (and you can still arbitrate interim issues if necessary)

Once of the most important things to recognize, however, is that the “fear” of losing your attorney and/or losing all the work that was done in your case is easily assuaged by knowing that you can, within the Collaborative Divorce Process, pursue mediation or—in the worse case scenario—arbitration.  The reality is that less than 5% of cases in litigation go to trial—and even if your Collaborative case falls within that 5% group, you can still obtain a resolution to your matter without hiring new attorneys via arbitration, which will actually be less stressful and less costly than traditional litigation—making the “negative” a positive in all actuality.

David Cardamone