Getting a divorce can be expensive, time-consuming, and fraught with emotional conflict. Some people dread the thought of battling their divorce cases through the court process and may consider an alternative dispute resolution process such as mediation. However, in Arizona divorce mediation, the spouses must meet with a neutral third party to try to reach an agreement on their outstanding divorce legal issues. This means that you would be trying to negotiate an agreement without having your attorney present, and either you or your spouse might be unhappy with the outcome.
An alternative process is called collaborative divorce, and it may offer a way for you to resolve the issues in your divorce case outside of the court litigation process.
What is Collaborative Divorce?
A collaborative divorce is a legal approach to divorce cases that was first used by a Minnesota attorney named Stuart Webb in 1990. It is a process through which divorcing spouses are able to negotiate with the help of their lawyers to try to reach a settlement agreement for all of the issues in their cases.
Through the process, couples may be able to reach agreements for all aspects of their divorce cases, including the division of property and debts, legal decision making and visitation for the children, child support, and spousal maintenance.
How Does Collaborative Divorce Work?
Before a collaborative divorce can start, the divorcing spouses must first have a conversation to make certain that both will be willing to work together throughout the process. If either spouse does not want to participate, the collaborative process will not work.
If both spouses are willing to work together to negotiate, they will then each have to hire their own attorneys. When you are searching for a lawyer for a collaborative divorce, it is important that you retain one who is experienced in the collaborative divorce process and who is willing to go through an alternative dispute resolution procedure.
Family lawyers who are experienced in handling collaborative divorces understand that the focus should be on arriving at a settlement that lets both spouses win. At the same time, you will want to find a lawyer who will represent your interests alone. This means that if you are uncomfortable with a specific term of your divorce, your lawyer should advocate on your behalf to negotiate changes to it.
After you have retained a collaborative divorce lawyer, you will want to meet privately with him or her to explain what you would like from your divorce. You should talk about how you want to handle custody and visitation, how you would like the assets and debts to be divided, and how child and spousal support might be handled. If you and your spouse have IRAs, 401(k)s, pension plans, or other retirement accounts, you will want to talk to your lawyer about how these should be divided.
You will work with your lawyer to begin to build your collaborative team, including a financial specialist, a divorce coach, and a child specialist. These professionals will work together with you, your spouse, and both attorneys. Your case might not necessitate hiring all three of these types of specialists. If you have children, you will want to at least have a child specialist. Your collaborative divorce team will work with you and your spouse in order to help you to try to negotiate the outcomes that will work best for your family.
The Next Steps After Establishing a Collaborative Divorce
Once you have met privately with your lawyer, you will begin having multiple meetings with you, your spouse, and both of your lawyers. At the first meeting, all four of you will sign an agreement that you will not litigate your divorce in court. This agreement will allow both of the lawyers to withdraw from the case if either you or your spouse ends the collaborative process and initiates litigation in court. This agreement to not go to court can serve as a powerful incentive for you and your spouse to negotiate even if the conversation becomes hard. if your attorney or team withdraw from your case, you will have to hire a new team.
After your initial meeting, you and your spouse will meet with your lawyers to talk about your needs and wants during the process. You will continue to have four-way meetings, and you should be progressing towards a mutual settlement at each one of them. You and your spouse must be willing to provide all information that is needed to continue negotiating, including the following:
- Tax returns
- Information about assets and debts
- Employment information
- All sources of income
Since there is not a discovery process in a collaborative divorce, you will have to trust your spouse’s word that you have received all of the relevant information from him or her. If you think that he or she will attempt to hide relevant information from you, you may be better off choosing a traditional divorce process. While hiding assets in a divorce is relatively uncommon, it does happen in some cases. If you hide assets from your spouse during your divorce, the court may possibly reopen the case in the future and alter the division of property.
After you and your spouse have reached an agreement of your divorce’s terms, your attorneys will then draft a settlement agreement that both you and your spouse will sign. Do not sign the agreement if you disagree with its terms. If the settlement is reasonable and fair to both you and your spouse, the judge will sign it. It will then become the final judgment in your divorce case.
What are the Pros and Cons of Collaborative Divorce?
There are several potential benefits of a collaborative divorce, including the following:
- Since you will work together to negotiate the agreement, there should be less resentment;
- You may be able to maximize how much time each of you is able to spend with your children;
- The collaborative process can help to lessen the emotional conflict that can come from court litigation; and
- The collaborative team can offer more ideas to resolve the issues instead of leaving it all up to a judge.
There are also some potential drawbacks of collaborative divorce, including the following:
- A potential for litigation may still exist;
- If one spouse is not honest, the collaborative process will likely fail; and
- If you can’t reach a resolution, you will have to start your divorce process over.
What Happens if the Settlement Process Breaks Down?
If the collaborative process in your divorce breaks down, you and your spouse can start over in court. If there is only one issue that you can’t resolve, you can agree to the remaining terms and litigate the one issue in court. If your collaborative process doesn’t work, both of your lawyers will withdraw, and you and your spouse will each need to hire new attorneys.
How to Determine if Collaborative Divorce is Right for You
A collaborative divorce is not the right choice for every divorcing couple. Whether it might be right for you and your spouse will depend on your willingness to work together and to negotiate. If you have a history of domestic violence or have trouble communicating, you will likely need to file a traditional divorce and litigate your issues through the court process.
If you are able to discuss your divorce with each other rationally and can set your differences aside, the collaborative process may save you money and time. Divorces are difficult, and you will likely undergo intense emotions during the process. It is not very likely that both you and your spouse will feel like you received what you wanted. However, a collaborative divorce lets you keep control over how to handle the essential issues in your divorce without having a judge intervene.
When might Collaborative Divorce not be the Best Choice?
To be successful with the collaborative divorce process, you have to be willing to compromise. This includes understanding that you will not walk away with everything that you want. You may not even end up getting what you ask for in a counter-offer. If you are someone who is not in a position to compromise, litigation may be a better choice for you. When you go through divorce litigation, you are also unlikely to get everything that you want. However, the judge will make the decisions for you.
People who are very competitive with each other may find that collaborative divorce isn’t the right choice for them. When you go through the collaborative divorce process, you will not be entering a situation in which one of you will walk away as the winner while the other is the loser. Instead, you are supposed to work together to reach an agreement in which both of you are able to meet your biggest priorities.
If you have trouble articulating exactly what you want, you may have a difficult time with collaborative divorce. This process requires you to communicate your desires clearly. If this is problematic for you, you could end up receiving a result that you will not like. In litigation, the judge could take evidence and make the decisions for you.
If you are unwilling to work just as hard as your lawyer, you might not want to try a collaborative divorce process. The process will require you to complete a lot of tasks, to prepare for your meetings, and to fully participate when they happen. In litigation, your attorney will help you to collect the information that you need and will speak on your behalf in negotiations and court.
Finally, if you are the victim of domestic violence from your spouse, the collaborative divorce process is not appropriate for you. This is because the fear and anxiety that you have towards your spouse can interfere with your ability to trust him or her during the process. The collaborative process will not work if your spouse tries to intimidate you. As a victim of domestic violence, you should not have to be placed in a position in which you have to trust your spouse, and it would likely be in your best interest to go through the traditional divorce litigation process.
Contact the Cantor Law Group
The collaborative divorce process may offer you an alternative way to get divorced without having to go through court litigation. If you believe that you and your spouse can work together to amicably resolve the issues that you have with your divorce, it might be a good choice for you. To learn more, schedule a consultation with the collaborative divorce lawyers at the Cantor Law Group by calling 602.254.8880.