By: Martinette Jennifer, Esq.
Imagine if we surveyed a group and asked them, “What’s one word you would use to describe divorce?”
Some responses we might receive are “heartbreak, separation, grief, confusion, anger, expensive, and never-ending”. However, one word that might not initially come to mind is: collaborative. What if I told you that all the previously mentioned words likely refer to the feelings couples experience in a traditional divorce? Furthermore, what if I told you there was another approach to divorce, the collaborative divorce process, that could lead to less stress, hostility, and money between divorcing couples? Let’s dive in.
So what is collaborative law?
Collaborative law is a fairly new approach to the traditional divorce process. One party files a complaint for absolute divorce in the formal divorce process. Suppose the other party does not agree with the grounds for divorce or doesn’t want a divorce at all. In that case, the matter becomes “contested,” prompting a need for the court to intervene to determine the settlement of issues such as child custody, property division, and alimony. The court’s intervention removes much control from the divorcing couple in having input regarding their future. However, in the alternative, a collaborative divorce process seeks to place that control back into the hands of the parties and their lawyers to work through the process civilly to determine the best way to dissolve the marriage and divide assets. Because collaborative law is a fairly new process under family law, there are some misconceptions surrounding the process.
Let’s look further at three common misconceptions about collaborative divorce and hopefully clarify some confusion.
Misconception #1: The collaborative divorce process is expensive
While a considerable financial investment is involved in any legal process, a collaborative divorce process can cut costs significantly compared to the traditional divorce process. The prices of a conventional divorce vary based upon factors such as the number of issues in dispute and whether or not a matter is settled or goes to trial. Alternatively, in the collaborative divorce process, the parties can sit down together and determine what’s most important to them in the dissolution of their marriage and decide on essential matters such as child custody, property division, child support, and alimony without the court’s intervention. By agreeing on these issues outside of court, the parties can avoid the high-ticket price of a traditional contested divorce which involves the court’s intervention in settling contested issues. Therefore, it is more financially advantageous to seek a collaborative law divorce instead of a traditional divorce.
Misconception #2: The collaborative divorce process is the same as mediation
Like a collaborative divorce which seeks to dissolve the marriage outside of the court system, mediation involves both parties and a mediator, a neutral person, that aims to assist the parties with resolving their disputes outside of the courtroom. However, the big difference between mediation and collaborative divorce is that a mediator is a neutral party prohibited from providing either spouse with legal advice. Therefore, if you or your spouse are uneasy about negotiating complex issues on your own, you each will have to retain an attorney to serve as a coach before and after mediation sessions to ensure that you are both attempting to resolve your issues in a mutually agreeable fashion. Alternatively, during the collaborative divorce process, each spouse and their attorney sit down together in what is known as four-way meetings. During a four-way session, the goal is to resolve all contested issues reasonably, with the parties’ most important goals and interests at the core of the settlement. The four-way meeting occurs in an informal setting, such as a conference room, at one of the attorneys’ offices. The parties will establish rules for conducting the meeting, and the attorneys will provide an overview of how the collaborative process works; the parties will sign a participation agreement, discuss goals, issues, and interests, and ultimately begin to work out agreements on each matter. Remember that these agreements are conducted over several meetings but with the participation and assistance of each spouse’s attorney every step of the way.
Misconception #3: If my spouse and I decide to use the collaborative approach, we relinquish our right to have the court intervene if the collaborative process breaks down
While the goal of the collaborative process is to settle disputes and come to an agreement without the court’s intervention, the parties maintain their right to have a judge decide on their contested issues. There is no all-or-nothing approach when it comes to collaborative divorce. Some couples may elect to use both methods. For example, suppose the divorcing couple successfully agrees on child custody and property division but cannot agree upon alimony. Then the parties may maintain their agreement on the undisputed issues and decide to have the court settle the alimony matter. When divorcing couples seek to use the collaborative law process, both parties and their attorneys must agree that the lawyers will not continue representing their client if the matter becomes a contested case in Court. Therefore, if the parties cannot agree on specific issues and wish to involve the court system, then each attorney must withdraw from their representation of the respective spouse, which can lead to considerably more expense and time in retaining new counsel. Therefore, the collaborative process is best for couples who can agree on all issues related to the dissolution of their marriage. However, simply choosing the collaborative divorce process does not prevent the parties from seeking the court’s assistance in the future.
Divorce can be an immensely emotional time for divorcing couples with many issues to resolve. The collaborative divorce process seeks to assist divorcing couples with making those decisions with their most important goals and interests in mind without the court’s intervention. The collaborative process can save time, money and lead to a more reasonable outcome for all parties. Our skilled family law attorneys at Andalman & Flynn are here to help you with your collaborative divorce. Our attorneys can help you and your spouse create a favorable outcome in the dissolution of your marriage. Contact one of our family law attorneys today to learn more about a collaborative divorce.
About Andalman & Flynn, P.C.: Founded in 1998 in downtown Silver Spring, Maryland, Andalman & Flynn has forged a distinguished reputation for legal excellence. The Firm practices family law, estate planning, and probate throughout Maryland and the District of Columbia, and represents individuals seeking disability benefits throughout the country. The Firm focuses on cases that impact the rights of everyone and is there for clients when responsive legal help is most critical. The Firm has provided legal analysis on national and local television and radio, and its attorneys often testify before legislative bodies and are routinely invited to contribute to prominent legal publications. For more information about Andalman & Flynn, please visit the website at andalmanflynn.com or call 301.563.6685.