What is a collaborative divorce?
According to the San Diego Superior Court Rules, effective January 2005, under Division V, Family Law Appendix B, states:
“…Collaborative Family Law is a voluntary process in which both parties commit themselves to resolving their issues through a cooperative approach rather than adversarial litigation. This process relies on the commitment of the parties to exercise honesty, cooperation, and integrity in working toward the future well-being of each of the parties, and, if there are children, the family. A team of experts assists the parties in solving problems, developing options, and creating a positive context for settlement. Each party works with a Collaborative Family Law attorney and a communication coach. The parties jointly hire a financial expert and, where appropriate, a child specialist to give the children a voice in the process. All information and documentation is voluntarily shared. The essence of the process is a series of face-to-face meetings between the parties and the relevant members of the professional team. When the process is completed, a written settlement agreement is prepared and filed, and a Judgment is entered by the Court…”
In short, a collaborative divorce is a divorce that is negotiated between the parties. It often involves the use of other professionals such as a CPA, financial planner, a child specialist, and possibly a mediator. At the end of the collaborative process the parties enter into a Marital Settlement agreement which will be submitted to the court by the parties in the hopes that it will be entered as the final Judge of Dissolution of marriage in their matter.
How is a collaborative divorce different from a litigated or uncontested divorce?
A collaborative divorce and an uncontested divorce are different in that in an uncontested divorce one party usually defaults or, if the parties agree to the divorce they do not use additional professionals to help them reach an agreement. In a collaborative divorce the parties agree to how their divorce is going to proceed with the use of additional professionals. However, in a litigated divorce the parties and their attorneys usually fight most issues and go to trial.
In a litigated divorce each party’s attorney disputes issues with the other. One or both sides will then file a request for a hearing or hearings on different matters in the case such as child and spousal support. Once a request for a hearing is filed the other party will have an opportunity to respond before going to court at which time each side will argue their prospective positions. At the hearing the court can either make orders or continue the matter so other things can be done to enable the court to make orders. However, with the budget cuts that the court is currently experiencing the court can also holdover or continue matters because it does not have time to hear all he matters on its docket.
These battles between attorneys and their clients can take years. But there is no guarantee that during the collaborative process that communication will not break down and that you will not have to go to court. However, in a collaborative divorce both attorneys go in with the goal of settling the case and making the divorce as amicable as possible.
How long does a collaborative divorce take vs. a litigated divorce?
Generally speaking, a collaborative divorce can be completed within 6 months, while a litigated divorce can take a minimum of 6 months to several years.
Is a collaborative less expensive than a litigated divorce?
On average, a collaborative divorce is less expensive than a litigated divorce. In a litigated divorce there is often formal discovery requests, multiple court hearings, and a trial. All of these things contribute to the overall cost of the divorce.
On the other hand, in a collaborative divorce the two parties are often responsible for their own attorney’s fees and costs, share the costs of experts, and because they are not going to court all the time they generally have more money left over to split between them.
What kind of attorney’s charges can I expect in a collaborative case?
Just like in a litigated divorce your attorney will charge you all time spent advising you of your legal rights and obligations. In addition, your attorney may have to spend time doing legal research that is specific to your case so that he/she can protect your interests. In addition, your attorney will spend time negotiating with the other parties attorney and will be your legal representative during four-way meetings with you, your spouse, and their attorney. The purpose of the attorney’s during the four-way meeting is to protect their client’s rights while helping them to reach a compromise that they can live with.
Will I get more out of a collaborative divorce or a litigated divorce?
While a collaborative divorce will usually proceed more smoothly you generally will have to compromise at some point to reach an agreement. Therefore, depending on what your goals are and what your spouse wants will determine if collaborative divorce or litigation is right for you.
At the Law office of Margaret D. Wilson we let our clients decide what process is best for them. Just because they decide in the beginning to litigate their case does not mean that we are precluded later on from reaching a settlement agreement. In fact in certain situations the threat of litigation can incite settlement. In addition, if a client decides to go the collaborative route they are usually not precluded later on from litigating matters that cannot be agreed on.
Some attorneys will represent the collaborative divorce is an all or nothing process, which is not true. It is often better (to reduce attorney’s fees) to reach an agreement on the things you can and then reduce the expense of litigation by only litigating those things that you cannot agree on.
Why do we have a four-way meeting?
Four-way meetings are held with the parties and their attorneys to first commit to the collaborative process and decide what other professionals will be needed for a successful collaborative process. At the initial meeting both spouses are asked if they are willing to commit to entering into a collaborative divorce. Then both spouses, and the two attorneys, and ultimately all of the other members of the team are required to sign the participation agreement, setting the terms of the collaborative divorce. Additional four-way meetings are held with the two attorneys and, in cases where coaches are employed, four-way meetings are held by the spouses and two coaches. Additional meetings may be held, with the financial planner, and possibly with the child specialist who represents the interests of the children. Before and after the meetings, the spouses consult with their respective attorneys so that they are aware of their legal rights and obligations, and are able to negotiate a fair agreement.