Collaborative Divorce is a form of private dispute resolution where you and your spouse agree to use your attorneys solely for the purpose of reaching an out-of-court agreement. Collaborative Divorce is not for everyone. Though Collaborative Divorce has worked for thousands of families around the world, it may not be the right process for you.
This article explores whether Collaborative Divorce may not be right for you.
You want your “Day in Court”
You may want your “Day in Court.” You may feel that, if only you could get in front of a judge, he or she would, of course, see the heroism innate in your positions and the dastardly deeds committed by your spouse.
What most litigants do not realize is that it can take months, or even years, to get in front of a judge to make final decisions regarding your divorce. And that time in front of a judge can be quite limited, meaning you will only be able to tell the judge a small part of your marital story. And it is up to the judge to determine which parts are relevant. Last year, I created the following video to demonstrate this dilemma:
In Collaborative Divorce, judges do not decide outcomes. You and your spouse decide outcomes. The only time you go in front of a judge is when you and your spouse have already reached an agreement.
So, if you want your “Day in Court,” Collaborative Divorce may not be right for you.
You refuse to disclose your finances to your spouse
A cornerstone of Collaborative Divorce is transparency between spouses. The idea is that, to determine how assets and debts are to be divided and support to be calculated, first both of you have to know about the marital finances. In Collaborative Divorce, this is oftentimes done with the aid of a Neutral Financial Professional.
And because a judge is not involved to hold spouses in contempt, we rely on the commitment of the spouses to be transparent (though the Neutral Financial Professional can oftentimes help determine if a spouse is hiding assets).
The truth is that financial transparency is also part of a court-based divorce. In Florida, Rule 12.285 of the Florida Family Law Rules of Procedure require a mandatory disclosure of certain information. The difference is in how that information is shared.
In a court-based divorce, it is common for a lawyer to serve a Request for Production of Documents in conducting a fishing expedition on finances. Oftentimes the other lawyer will provide some, but not nearly all, of the requested documents. The original lawyer will then file a Motion to Compel disclosure of the remaining documents, and then will have a hearing. The judge will typically order the responding spouse to provide most, if not all, of the remaining requested documents. But, still, many times not all documents are subsequently disclosed, and so the original lawyer will then file a Motion for Contempt. A hearing will be held, reaffirming that more documents need to be disclosed. The the original lawyer will file a Motion for Attorneys’ Fees, and a third hearing will be scheduled.
In contrast, in Collaborative Divorce, one lawyer may ask the other lawyer for documents, and the lawyer, with the help of the client, readily complies. That is the transparency required in the Collaborative Process.
If you are not willing to be transparent, Collaborative Divorce is not right for you.
You are looking to punish your spouse
You are probably hurt and even angry. Divorce is painful, and the circumstances leading up to divorce can be enraging. You may even want to punish your spouse.
Here are some questions you should consider:
- Do you want to punish your spouse more than you want to move on with your life?
- Do you want to punish your spouse more than you want your children to be happy and healthy?
- Do you want to spend large sums of money on punishing your spouse, diminishing the amount of funds you have when the divorce is over?
If the answer to any of these questions is yes, then Collaborative Divorce is probably not for you. The purpose of Collaborative Divorce is to help families reach an amicable, durable agreement so your family can head towards a better future. Punishment of a spouse is not in line with this purpose.
Speak with a Collaborative Lawyer
Collaborative Divorce is not for everyone. It may not be right for you. The best way to find out is to speak with a Collaborative Lawyer.
Adam B. Cordover is co-author with Forrest S. Mosten of an American Bar Association book on Building A Successful Collaborative Family Law Practice (ABA 2018). Adam is a member of the Board of Directors of the International Academy of Collaborative Professionals and instructor for the Leadership Institute of the Florida Academy of Collaborative Professionals.