With rising legal fees and court costs, the uncertainty of trial calendars and outcomes, and the overall toll that litigation can take on a divorcing couple, Collaborative Divorce may be a better option for Nebraskans going through divorce. Generally speaking, those who choose to proceed collaboratively agree that they will not resort to the court for any judicial relief, voluntarily disclose all of their assets and liabilities and come to temporary and permanent agreements on all issues in their case. Yet, common misconceptions and questions about Collaborative Divorce persist. Here are just some misperceptions, and reasons why the right clients should strongly consider proceeding collaboratively with their case:
Traditional Divorce Can Be Just as Civil as Collaborative Divorce: The vast majority of divorce cases ultimately settle short of trial, and may be civil at times along the way. Unfortunately, settlement usually comes after months of temporary hearings, discovery proceedings, unpredictable communication timelines, vagueness about whether the parties both want to resolve their matter outside of court, and several thousands of dollars in attorney’s fees.
In collaborative divorce, from your initial 4-way meeting forward, the attorneys and their clients affirm in a participation agreement that they WILL be civil. By making this commitment early on in the process, they remove almost any doubt that matters will turn uncivil later on when, in litigation, a temporary hearing goes against them, damning information in discovery is revealed for the first time, or numerous letters and corresponding fees generated in seeking the same information repeatedly from the other side. Non-collaborative divorce proceedings can be civil, but collaborative divorce is a process that guarantees civility, timely resolution, and certainty regarding fees.
You and Your Spouse are Adversaries in Divorce, and Incapable of Being Collaborative: Of course, there are usually very good reasons why divorce clients have chosen to part ways with one another. Unfortunately, in traditional litigation there are few guard rails to prevent clients from how they feel about each other to cloud out all reason in their actions, involve their minor children in their divorce, and ultimately engage in very self-defeating behaviors against their attorney’s advice.
In collaborative divorce, the attorneys intentionally seek out the objectives and goals of both parties at the first 4-way meeting, including asking about why they are getting divorced, so there are little to no surprises about underlying reasons that may affect the process later on. In traditional litigation, if you are in a no-fault divorce state, it probably will never be asked by anyone why you are getting divorce. In collaborative divorce, it is specifically asked so that your attorneys know those reasons up front, and are able to craft a case plan specifically to fit both your needs and objectives.
There is Less Opportunity to Investigate the Truth in Collaborative Divorce: There is no formal disclosure of facts by either party under oath in collaborative divorce. Nevertheless, the collaborative process provides for a thorough review of ALL necessary documentation from both parties at the very beginning of the process. It is often said by collaborative divorce practioners, “there really are no secrets.”
If either party feels as if they are being cheated by not have the ability to investigate the other’s “truth”; i.e. assets, debts, etc., then that is more of a function of poor client screening and lack of identifying required documentation, as opposed to an inherent flaw in collaborative divorce itself. With the right clients who are unwilling to hide the truth from the other, along with proper document identification and gathering, collaborative divorce offers more than enough opportunity to disclose all relevant information – truth – to both sides.
Collaborative Divorce Ties Your Lawyer’s Hands: This is not true. You and your collaborative divorce lawyer, if anything, have become much more empowered to have control over the final outcomes in your case. In traditional litigation, if trial is necessary, decrees often contain provisions that are impractical and do not work well for either client. Everyone’s hands are tied by the judge’s decisions, while in collaborative divorce your team of attorneys and professionals has the unique opportunity to be unmoored from a “one size fits all” approach often taken by judges in decrees.
Your lawyer has the ability to speak to opposing counsel regarding issues arising when they occur, and solve them, as opposed to waiting 6-9 months for a trial date in a litigated case. Your lawyer also has direct access to other team members, including your divorce coach, child specialist, and financial neutral to discuss and problem-solve any issues that your client may disclose to them during the case. In sum, in collaborative divorce your lawyer’s hands are not only untied, but empowered with knowledge, insight and unique problem-solving abilities to address your situation they may never get ordered in traditional litigation.
Collaborative divorce is not for every divorcing couple, but for the right clients it can be the best way to proceed with your divorce. I hope this supports if you have doubts about whether the collaborative divorce process can work for you.