“Brad and Jennifer Call it Quits!”
“Michael Jordan Fouls Out of Marriage”
When celebrities file for divorce, their photos are splashed on the covers of the supermarket tabloids underneath sensational headlines. The tabloids contain in-depth articles with chronologies of the relationship, an analysis of “what went wrong,” and quotes from someone with psychic powers. However, after the initial announcement, you rarely hear any news about the divorce proceedings and, several months later, when the divorce is finalized, the same tabloid will print a brief mention of the divorce on their “Passages” page, without any details of the divorce.
If celebrities, the most attention seeking group in our society, can manage to complete their divorces privately, then why can’t the rest of us? The little known truth is that there is a method for us non-celebrities to complete divorces privately, an option that is ideal for many of your patients – Collaborative Divorce.
Collaborative Divorce was created by a burnt out family lawyer in Minnesota in the late 1980s as a better way to get divorced. He spent a number of years developing the approach and convincing other attorneys to join him. The practice became national in 2000 as other states began to adopt the approach. Michigan held its first Collaborative Divorce training in 2004. Since then, several hundred attorneys, mental health professionals and financial specialists have completed the Michigan Collaborative Divorce training. Collaborative Divorce is best suited for couples who want legal representation, but would like to avoid the courtroom. The parties and their attorneys agree, in writing, to complete the divorce amicably. The attorneys are specifically trained in collaborative law and are focused on assisting the parties reach a fair settlement, not on litigation. Instead of using traditional litigation tools, the attorneys assist the parties in resolving the issues in the divorce cooperatively instead of litigating.
There are three primary tenets of Collaborative Divorce. First, is an agreement to stay out of court. The parties and their attorneys execute a Collaborative Agreement, in which the parties agree to resolve all the issues in the divorce prior to either party filing for divorce. By agreeing to stay out of court, the parties control the pace and the tone of the negotiations, without court deadlines and the temptation to run to court to ask the Judge to resolve minor disputes.
If either of the parties decides to go to court and files a Complaint for Divorce, both attorneys are required to withdraw from the case. This prevents the attorneys from intentionally disrupting the negotiations to increase the legal fees and provides an incentive for the parties to stay at the negotiating table, to avoid having to start over with a new attorney.
The second tenet is an agreement to voluntarily exchange information and to negotiate in good faith. When parties litigate, a significant portion of the costs are incurred during “discovery,” the information gathering phase of the case. This may include interrogatories (long list of written questions to be answered under oath), depositions and subpoenas). In a collaborative case, the parties provide the necessary information, saving a considerable amount of time and money. Further, by putting all the information on the table, the parties can concentrate on reaching agreements, instead of wasting time trying to find hidden information.
The third tenet of Collaborative Divorce is the use of other professionals. The parties are encouraged to engage therapists to assist them with the emotional issues related to the divorce and to coach them through the process. A divorce coach can be utilized outside the process or at the negotiating table. Alternatively, the parties can meet with a child specialist to help them agree on custody and parenting time issues.
In addition, the parties may agree to bring a financial professional into the process to help with tax issues, budgeting, creating cash flow analyses and answering other financial questions. Further, if a business or real estate needs to be appraised, the parties can agree to utilize a single expert, instead of having to hire two competing experts, which is common in litigation and adds to the costs.
There are many benefits to a Collaborative Divorce, primarily if the parties have minor children. When children are involved, the parties must be able to communicate effectively in order to continue to co-parent the children for years after the divorce. The collaborative process helps the parties get started on the right path, by encouraging the parties to communicate with each other, instead of through their attorneys. And by avoiding the animosity that comes with litigation, the likelihood of putting the children in the middle of the divorce is reduced significantly.
In Michigan, when the parties litigate, the case is identified as Plaintiff vs. Defendant, immediately casting the parties as adversaries, while reducing the children to bit players. The collaborative process avoids the courtroom labels, which helps the parties avoid the “me against them” mentality. This allows the parties to focus on the children and to create a win-win-win settlement that is truly in the best interests of the children and financially as beneficial to the parties as possible.
In addition, the process gives the parties time to ensure that they are making educated decisions. Although every divorce is unique, courts tend to force parties into cookie cutter positions. And while many cases settle through court ordered mediation, the mediation frequently takes place shortly before a scheduled trial, putting pressure on the parties to make hasty decisions in order to avoid the time and expense of a trial. Michigan judges have to meet certain docket management goals and pressure parties to resolve cases within their imposed time constraints. Without court imposed deadlines, parties in a Collaborative Divorce have time to educate themselves regarding the implications of any settlement options and to sleep on any settlement offers to make sure they are making the best decisions.
The additional time also allows the parties to be creative in crafting a settlement that is favorable to both parties and the children.
Another significant benefit of a collaborative divorce is the ability to keep personal and financial information private. The courts are public forums. In litigation, the parties frequently air their personal issues in front of a crowded courtroom and file personal and business information with become part of the public record, which anyone can view. In Michigan, many of the courts allow online access to court files, including all documents filed in a particular case. In a Collaborative Divorce, just like celebrities, can keep this information private.
Finally, a Collaborative Divorce is usually less expensive and time-consuming than litigation. And by avoiding the courtroom, the parties are assured that most of their attorney fees will be for time the attorney actually spends working on their case and not for spending an entire morning in a courtroom waiting for their case to be called.
Collaborative Divorce is an ideal method for parties to resolve all of the issues in their divorce, with the assistance of attorneys, in a manner that addresses everyone’s legal, financial, and emotional needs.