What is the REAL Difference Between Collaborative or Combative Divorce?

we’re going to address the global pandemic of the coronavirus and how to deal with the challenges it creates for your divorce.

In today’s episode, we’re going to cover collaborative divorce. What is it? What are its advantages and why would you want to consider it as a method for your divorce? Collaborative divorce is an alternative dispute resolution process that really benefits families. During the process you design a solution for your family, both emotional and financial, that avoids contentious litigation or court intervention. The process really empowers the participants to make decisions about their children, their finances and their health to reach a resolution both respectfully and confidentially. This is really important because when you go down the path of a traditional litigated divorce, everything that you deal with is public. It’s public information.
It’s filed in the court; your fight is a public fight.

And really the worst place for Family Law conflict is traditional court.
Traditional courts are just not really equipped to handle the emotional side of the divorce process. Only you know what’s best for your kids and you’re going to design a much better solution for yourself post-divorce. If you follow a collaborative process with your spouse, the way I think about it is everybody who gets divorce ends up in the same spot… so you end up divorced no matter which method of divorce you choose.

The question is, how do you want to spend your time and money getting divorced?

Or do you want to spend that time, money and energy coming up with solutions that can really help you move forward? And solutions that can really help you become better either co-parents or just better able to interact once the divorce process is final.

Collaborative divorce is really a way to empower yourself to do that and to spend your resources focusing on the future.

So how does it work? The first thing that the parties do is they enter into what’s called a Participation Agreement. In the Participation Agreement you agree to resolve your divorce issues without court intervention. Now, at the end of your divorce process, you’re still going to have to at least go to court one time to have your judgment entered by a court because as a practical matter, the only way to actually be legally divorced is to have a judge say, ‘okay, you’re divorced,’ but getting to that final divorce judgment and deciding what all of those provisions are going to look like does not happen in a court of law.

How does it happen? It happens in a series of meetings that you participate in to develop a comprehensive settlement. So each party is represented by an attorney. And there are typically two other professionals who are also part of the process, who serve as supportive professional neutrals. One is typically a mental health neutral and one is typically a financial neutral. So essentially you are forming a team that is going to help you stay focused on the children if you have children or stay focused on dividing your assets in the best, most equitable way possible, and you’re doing this where you’re not making it a public battle. It is a much kinder and gentler way to go about the process.

What are some of the advantages of collaborative divorce? There are many. First of all, it’s confidential and private. And it assures that your sensitive family matters are discussed, debated and resolved without the need for publicly filed court documents. Second is that the process is really focused on moving you forward and creating a new vision for your family, rather than rehashing the pain and mistakes of the past. Third, participants really control and design their own life solutions and I cannot overemphasize how important this is. This is so important because the volume of family law cases that the courts have to handle are simply crushing. The judge that’s assigned to your case in a traditional divorce simply does not have the time to know the intricacies of your family in order to make really good strong decisions about what your divorce judgment should look like…

For example, in the United States last year, there were over a million divorces entered. And of those a little over 28,000 took place in Michigan. If you break that down by the number of divorces that took place in the county where you live, you have on average, each judge handling approximately 450 to 500 divorces a year per County, well, there is no way that the judge who’s handling your case even though they may be brilliant at applying the law and they may be a wonderful judge…they are simply not in the best position to be the best decision maker about what works best for your family. Another benefit to the collaborative divorce process is that the compliance with settlement terms is greater because the parties designed it themselves. One thing I see so many clients struggle with is even after their consent, judgment or judgment of divorce is entered, they may have a former spouse who’s choosing not to follow those terms. And then you have to go back to court to have that judgment enforced. It’s very expensive. It’s emotionally exhausting. And if you are creating a judgment that really has both parties’ interest in mind when it’s being created, then you have a much higher likelihood that the parties are going to follow that once the divorce judgment is entered.

So another question that I often get about collaborative divorce is whether it’s less expensive than a traditional divorce. Collaborative divorce often reduces the time and costs of your divorce for many reasons, one being that you’ve entered into this Participation Agreement that I mentioned at the beginning. Under this Participation Agreement, one of the things that you’re agreeing to do is to voluntarily share financial information with each other, and to make full disclosure about your debts, assets and liabilities. The reason why that’s important is because in the traditional divorce process, you have to go through this lengthy fact finding discovery process which entails the other side asking you many questions that you have to answer formally under oath. The other side may want to ask you questions under oath at a deposition. There are no formal discovery rules that apply to your Participation Agreement. You essentially are agreeing upfront to a voluntary exchange of information and it makes the whole process much more streamlined.