When an individual contemplates getting a divorce, they frequently reach out to their divorced friends. Unfortunately, for every positive experience in the litigation system that a divorced individual can share, the negative, demoralizing, exasperating experiences are ten-fold.
The problems stem from over-crowded court houses and judicial dockets, which lead to significant fees being expended while lawyers literally wait their turn, to inexperienced and over-worked judges, which lead to puzzling, unjust, and, at times, incorrect decisions.
As a litigator, I understand the need and importance of the Court system for many individuals as they navigate through the divorce process, and despite its flaws, it can generate just results. In fact, since well over 90% of divorce cases settle anyway, the Court’s role in a divorce is generally limited to ensuring the process continues to move forward, except for the ever-present, intermitting motions which dictate the parties’ rights and obligations during the process. However, I am also keenly aware of the shortcomings of the judicial system, especially as it relates to the matrimonial setting. As a result, when I began to learn about the Collaborative Divorce Process, I came to appreciate the fact that for many divorcing couples the judicial system is quite simply not the best forum for navigating their divorce. However, by engaging in the Collaborative Divorce Process, the parties agree not to go to court, instead focusing on a team oriented approach.
When considering Collaborative Divorce, it is important for an individual to understand the goals of the process, to determine whether they correspond with the individual’s goals for resolving their divorce. Typically, they will.
First, Collaborative Divorce focuses on the parties and, most importantly, their children/families. The idea is to find a settlement that both parties can live with (as there is no true “Win-Win” in a divorce context, but that does not mean that it has to end in a “Win-Lose” or, worse yet, “Lose-Lose”). When children are involved, the Collaborative Divorce process puts the children at the forefront of the decision making, ensuring that they do not get lost in the shuffle (as they often do in litigation when the parties are fighting over money, primarily). This is accomplished by the use of either, or both, a Divorce Coach or Child Specialist, whose roles are to help the parties communicate, work out an acceptable parenting plan, and ensure that the children’s needs and wants are considered.
Second, the Collaborative Divorce process attempts to streamline the financial negotiations by involving a third-party neutral financial specialist to help the parties understand their past, present and future financial circumstances and needs. By doing so, both individuals have a voice in assessing and reviewing the financial realities of their case and are thereby empowered to make financial decisions that will permit both parties to achieve their future financial goals.
In addition, Collaborative Divorce creates a paradigm shift wherein the concept of winning at all costs against your “adversary” (i.e. your spouse) is replaced by a concept of finding a unique settlement to fit both parties’ needs, while promoting respect. Most importantly, it is the parties, as opposed to their attorneys, who control the process.
One thing to remember is that due to the process of Collaborative Divorce, which focuses on enabling the clients to achieve their desired result by empowering them to find their own voice and focus on their goals, Collaborative Divorce can work in very complicated financial, emotional, or familial cases. In certain situations, therefore, the viable alternative of Collaborative Divorce should be considered when a couple has decided to obtain a divorce; however, it must be understood that it is not the appropriate path for every couple, especially when there is a history of domestic violence. However, when both parties are committed to the process, it can save them not only money, but significant emotional turmoil during an already trying time in their lives.