Collaborative Divorce -- A Better Option?

Law Offices of Daniel S. Williams

by Daniel S. Williams, Esq.

Often times I am asked what the easiest way to get divorced is and how much will it cost. This is a question that I have found over the years that the client knows the answer better than I could.  Why is this?  After all, I am an attorney and the client is seeking my counsel.

The reason is simple.  How long a divorce will last and how much it will cost depends on how much cooperation and trust is left in the marriage.  In its simplest form, a summary dissolution (a topic for another posting), may be the fastest way to get divorced, but often with children and debt issues, parties do not qualify for a summary dissolution.  

So what is the next best option, one that is better for the parties involved, and helps ease the pain and upset that goes with almost every divorce?  Collaborative Divorce. 

First, one must ask: 

What is Collaborative Law?

Quite simply, it is a legal process enabling couples who have decided to separate or end their marriage to work with their lawyers and, on occasion, other family professionals in order to avoid the uncertain outcome of court and to achieve a settlement that best meets the specific needs of both parties and their children without the underlying threat of contested litigation. The voluntary process is initiated when the couple signs a contract (called the "participation agreement"), binding each other to the process and disqualifying their respective lawyer's right to represent either one in any future family related litigation.

The collaborative process can be used to facilitate a broad range of other family issues, including disputes between parents and the drawing up of pre and post-marital contracts. The traditional method of drawing up pre-marital contracts is oppositional, and many couples prefer to begin their married life on a better footing where documents are drawn up consensually and together. 

How Does Collaborative Divorce Work in California?

Clients and their attorneys are at the heart of a working team which often includes mental health, financial and other professionals as needed to provide information and help clients explore a variety of solutions. The clients don`t sign a settlement agreement until each of them is comfortable with it.  This promotes an atmosphere of trust, and cuts down on the need for discovery, depositions, subpoenas, and other hearings that often can eat away at upwards at the marital equity, and often times leaves parties in debt to creditors in order to pay their legal bills and related expenses.  For example, on a recent case I spent four to five hours going through financial records and assembling them pursuant to a discovery request by an opposing counsel. The time spent preparing this and assembling it pursuant to the discovery request cost my client over $1,000 in legal fees.  The opposing party (by projection) probably billed their client a similar amount in preparing the discovery request and examining it.  Thus, between the parties, it would be fair to say that $2,000 to $3,000 was spent from their assets just to pinpoint one thing, what was the average monthly income of my client who is a small business owner. Contrast that with the collaborative process and the parties would have each brought the documents to a meeting, and I could project within an hour the average monthly income could have been agreed upon.  Thus, the parties could have came to the same needed number and between them spent about $500 total. 

Why is a Mental Health Professional Involved?

This is a question asked most frequently and comes down to a simple old saying: never make important decisions when your upset or emotional.  While the process of Collaborative Divorce is meant to have the parties work together, the fact remains that tough decisions have to be made and as the process continues, often parties relive the good and the bad of the marriage.  This makes parties emotional, and a mental health professional or coach for each party is extremely useful in keeping a party focused on an end goal.  Divorce is upsetting and often people can dig their feed into the ground unwilling to budge because of an aspect that has no bearing on what the law says or how a Court would ultimately treat the issue.  Additionally, a mental health professional can be extremely helpful in preventing the process from breaking down and thus having the divorce proceed as a contested and nasty process. 

If the Process Fails, What is Confidential?

In legality: everything.  In reality: the cat is out of the bag.  While collaborative law is a no hiding of secrets process, and promotes the spirit of working together, in reality, nothing comes out that should not come out in a contested process anyway.  Refer to the financial discovery example above.  Many people fear that if the process fails, the other side will already know everything.  Yes, this is a reality, but this is also life and this is also the law applied.  Parties should look at it more as what ever is said would be said anyway.  What ever is brought to the table, would have come out in discovery.  Again, I refer back to the financial discovery example above. 

Overview of Benefit

• All information is voluntarily shared as soon as possible.
• Good faith efforts to explore options are central to the process.
• Skills are developed which enable parties to handle new issues as they come up.
• Collaborative attorneys work only as settlement specialists, and disputing parties will need to hire other lawyers if any of the parties want to litigate.
• Participants can add neutral experts to their supportive team.
• Clients retain the power to create a resolution that fits their particular needs and priorities.