Once you decide to divorce, you must choose between two basic options: a collaborative divorce or litigation.
A collaborative divorce is a cooperative process where an experienced team guides you through your divorce with minimal stress and expense. Litigation is an adversarial approach to divorce and involves going to court, presenting evidence, and turning your life over to a judge or jury to make decisions for you.
A collaborative divorce offers many benefits, including confidentiality. In a litigated divorce, everything is public and subject to discovery. The average cost of a collaborative divorce is less than the average cost of a litigated divorce. Participants in the collaborative process voluntarily produce all relevant financial and family information so they avoid lengthy and expensive discovery fights characteristic of litigated divorces. A collaborative divorce is settled through interest-based negotiation so clients control the outcome and don’t turn their future over to a judge or jury. A litigated divorce is controlled by attorneys who determine which documents to produce and a judge who makes rulings about your life.
Collaborative meetings are scheduled at the convenience of the parties while litigated hearings are scheduled at the convenience of the court. The collaborative process helps divorcing couples learn to communicate and work together while a litigated divorce brings out the worst in people and destroys any hope they can work together constructively post-divorce. Children are never put in the middle of a collaborative divorce, but during litigation, children may be forced to meet with a judge in chambers to discuss their living arrangements. The collaborative process allows clients and their attorneys to reach creative settlements not generally available in court. Parents who participate in a collaborative divorce are better able to co-parent effectively after the divorce.
During the first joint collaborative meeting, two attorneys, a financial and a mental health professional explain the collaborative process, discuss the collaborative family law participation agreement, and explore both spouse’s goals and interests. The parties sign the participation agreement and the financial professional lists documents that need to be produced. During the second joint meeting, the collaborative team and parties review the financial information, identify issues, and create settlement options. 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. One attorney and his or her client prove-up the divorce before a judge.
A Litigated Divorce
The first step in a litigated divorce is to file an original petition stating the grounds for divorce. The petition is served on the other spouse, who must answer. Next, there is a hearing before a judge to decide where the children will live while the divorce is ongoing, establish a visitation schedule for them until final settlement or trial of the case, and determine how much temporary spousal support or child support will be paid by one spouse to the other until the final divorce decree is entered.
Following the hearing for temporary orders, attorneys exchange requests for discovery and may schedule oral depositions of witnesses and the parties. Discovery fights can consume substantial time and money. Once discovery is complete, the attorneys will 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 after extensive preparation just before trial. If the parties can’t settle, the case is set for trial.
At trial, both parties make opening statements, put on witnesses, introduce evidence, and make closing arguments.
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 what amount of spousal support, if any, is justified by the circumstances of this marriage. Finally, the attorneys will draft the Divorce Decree and Agreement Incident to Divorce to reflect the orders of the court.
In a collaborative divorce you control the outcome, the collaborative team helps you negotiate a settlement that meets your goals and interests, all information is shared openly, you avoid harm to your children, and save money compared with the average litigated divorce. 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 may be put in the middle of their parent’s divorce, and litigation costs more on average than a collaborative divorce.