There are major differences between a collaborative and litigated divorce. In a collaborative divorce, you control the outcome, your goals and interests are important, all information is shared openly, you negotiate a win-win settlement, avoid harm to your children and save money. In a litigated divorce, the attorneys control the case, your goals and interests are secondary, information is hidden, each side attempts to win, the children are often placed in the middle and litigation costs more.
The Collaborative Process
- Agree to the Collaborative Process. During the first meeting, two attorneys, a financial and a mental health professional explain the collaborative process, review expectations of conduct, explain the family law participation agreement and discuss goals and interests. The parties sign the participation agreement and the financial professional lists the financial information needed to settle.
- Create and Discuss Settlement Options. During the second meeting, the team and parties review the financial information, identify issues, create settlement options and compare the expected outcomes of each option with the clients’ stated goals and interests. The team eliminates any option that doesn’t meet important goals and interests of the clients.
- Negotiate Settlement and Draft Closing Documents. During the next few collaborative meetings the team and parties negotiate a collaborative settlement agreement that meets the important goals and interests of both parties. Following settlement, the attorneys jointly draft the Divorce Decree and Agreement Incident to Divorce. Once the closing documents are complete, one attorney and his client will prove-up the divorce before a judge.
A Litigated Divorce
- File and Serve a Petition. The first step in a litigated divorce is to file an original petition. Even if both parties agree they want a divorce the petition must be filed, stating the grounds for divorce (usually incompatibility) or alleging fault (abuse, adultery, etc.). The petition must be served on the other spouse to give notice of the divorce. The petition is usually served on the spouse’s attorney. If there is a dispute, the sheriff may show up at the spouse’s work and embarrass him or her.
- Response and Temporary Orders. The spouse who was served with the petition must file a response. Generally, he or she will state a general denial, but if there are specific allegations of fault, the response should refute the facts of the petition or raise a defense to the charge. Usually, there is a temporary hearing before a judge to decide where the children will live, establish a visitation schedule until final settlement or trial of the case and determine how much temporary support or child support will be paid.
- Discovery Issues. Following the temporary hearing, attorneys exchange requests for discovery and may schedule oral depositions of witnesses and the parties. Discovery fights can consume substantial time and money if the issues are complex and the parties disagree. Often the attorneys will ask the court to intervene to settle discovery disputes that cannot be negotiated satisfactorily.
- Settlement Negotiations. Once discovery is complete, the attorneys will agree to meet for settlement negotiations or the court will order the parties to mediation in an effort to settle the dispute. About eighty percent of litigated cases settle at this point. If the parties disagree about custody, the court may order a social study to determine which parent should have custody of the children.
- Trial. If the parties are unable to settle their dispute, the court will set the case for trial. At trial, both parties make opening statements, put on witnesses, introduce evidence and make a closing argument. Then, the court or jury decides the issues of the dispute, including who will have custody of the children, how the marital estate will be divided, the amount of child support to be paid and whether spousal support is justified. Finally, the attorneys will draft the Divorce Decree and Agreement Incident to Divorce.
The advantages of a collaborative divorce are privacy, lower cost, flexibility of scheduling, control of the process, custom settlement solutions, protection of the children and better post-divorce co-parenting skills. The advantages of a litigated divorce are that discovery can be ordered by the court if one party refuses to disclose information, protective orders are available in case of abuse and the court can order a solution to the dispute if the parties can’t compromise.