Getting a divorce is among the most challenging and trying times of a person’s life. Divorcing couples can spend thousands of dollars and give up many years of their lives to the traditional divorce process.
By the end, the parties come out the other side drained and bound to decisions made by a third party judicial officer.
It doesn’t have to be this way.
Couples looking to avoid such a public and adversarial process are increasingly utilizing collaborative divorce, which allows couples to settle the terms of their divorce confidentially and entirely out-of-court. The end result is that the parties can sign a settlement agreement with terms they actually created rather than terms determined by a judge.
Collaborative divorce is typically much less money than a contested divorce and unsurprisingly, it’s rapidly gaining momentum across the country as the preferred alternative to the traditional divorce process.
Many states, including California, have now enacted laws formally enabling and facilitating collaborative divorces.
Unlike in litigation, spouses typically utilize joint professionals, such as financial experts, child psychologists, custody evaluators and therapists. The goal of the involved parties and professionals is a cooperative resolution in the best interests of the family’s future.
So how does it work? Each party retains a collaborative attorney. The couple and their attorneys then sign an agreement that they will not litigate and will reach a fair settlement directly.
However, at any point either party can opt out, retain new counsel and pursue litigation.
But if the spouses do continue with the collaborative process, they must agree to communicate openly and work with one another and their attorneys to facilitate the process. All involved parties work together as a team, emphasizing cooperation and respect over animosity and confrontation.
Though this process may sound like mediation, it is not. In mediation, parties submit to a single, neutral third party. The mediator then works toward a mutually agreeable decision. However, a power imbalance between the parties often exists and yet they proceed without counsel.
In a collaborative divorce, spouses craft a settlement agreement with the benefit of their own legal advocate to help them.
Herein lies the beauty of a collaborative divorce: The spouses control their own destiny. The parties can come up with creative settlement terms and custody arrangements tailored toward their own unique circumstances that a judge or mediator may not otherwise make. So in many cases, this means a quicker and less expensive divorce with terms that are likely to be successful in the longer run because the parties invested time and effort into creating them.
Joseph P. Spirito, Jr. Esq. of McGaughey & Spirito is a practitioner and instructor of collaborative divorces.