Try a Less-Stressful Divorce
May 15, 2023
It doesn’t take an expert to tell you that a bad marriage is stressful. If you are in a bad relationship, you feel the stress.
What to do about it? Many people try counseling for themselves individually or as a couple. That can be a good thing, but it may not save the marriage.
If you have tried on your own or with the help of a counselor, and haven’t been able to improve the situation, you may be facing a divorce. At that point, you must decide what process you will use.
Choice of Processes: You may not have known that you have a choice! You can seek legal counsel and suggest that you want to use traditional litigation or Collaborative Law. You almost certainly know friends or family members who have been through a difficult litigated divorce, but you may have not heard about Collaborative divorce.
Litigation: The litigation process involves going to court, having hearings, formally gathering written evidence and sometimes getting depositions. After 6-9 months or more, your case will probably be ordered to go to mediation. When that happens, the parties and the attorneys meet with a neutral third party (mediator) who helps them compromise and come to an agreement. It is usually successful. If not, trial awaits!
Collaboration: In contrast, the parties agree to not go to Court. The Collaborative process involves having a series of face-to-face meetings with both sides and their attorneys. There is no mediator, but we usually bring in a neutral financial professional to manage the financial issues and a neutral counselor (who does not do “therapy” in the process) to run the meetings and help keep everyone from getting too stressed or upset during the meetings. The counselor can also help the parties put together a parenting plan, if that’s an issue.
Why Choose One Over the Other? Here are some additional contrasts between the approaches.
Control: In Collaborative divorces, the parties make their own agreements and don’t have to follow standard guidelines. In litigation, unless the case is decided in mediation, the Judge makes the decisions, especially the initial decisions, and usually follows standard guidelines and formulas.
Flexibility: In litigation, the Judge tries to take standard positions on issues so the outcome is predictable. That means standard child support, visitation, custody and property division. In Collaborative, we start off focusing on the needs and interests of each party and then we work hard to meet the needs of both parties, even if we don’t use standard solutions. That usually produces a more satisfying result.
Privacy: Collaborative cases are private and confidential. Litigation is not. Litigants and their private information are exposed to the public.
Cost: Litigation, especially highly contested cases, can be very expensive. Costs mount from having numerous motions filed and hearings held, going through formal discovery-- written questions, requests for documents, depositions, and arguments over whether requests have been complied with. Then, you hire a mediator and have mediation for a day. If that fails, you still have a trial.
Collaborative cases do not file motions or have hearings at Court. We get the needed information without doing formal discovery. The neutral financial professional simply gives the parties a specific list of documents that are needed and the parties provide the information to the financial professional who reviews and organizes it for everyone. That’s done without the attorneys. If there are kid issues, the counselor helps the parties (without the attorneys) to create a parenting plan to meet their schedules, needs and experiences.
The preliminary financial and parenting issues are handled with minimal attorney involvement. We let the experts do the preliminary work. Besides advising their clients all along, in the end the attorneys can help the parties review and modify the proposals to comply with legal and practical requirements. Family
Relationships: The Collaborative process is generally less destructive to family relationships. We focus on the future and the interests of both parties, instead of trying to find fault with the other party. With the counselor running the meetings, they can be more productive and less likely to stray into angry or insulting behavior. Your life and your divorce can be improved if you choose the best process for you and your family. Good luck