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Should You Consider a Collaborative Divorce?

October 31, 2017, on Blog |

If you have been reading about the steps involved in getting a divorce, you have likely come across the concept of “collaborative law,” or a “collaborative divorce.” The collaborative approach presents a unique opportunity to resolve a divorce amicably within a structured format, but without the deadlines, delays and formalities of going to court.

As the collaborative method has gained notoriety in recent years, more and more couples have turned to this method to bring their marriages to an end. While it is not right for everyone, if it is right for you, it can save significant time, cost and stress compared to the more-traditional methods of divorce resolution. When preparing to go through a divorce, it is important to consider all of the options you have available, and to make informed decisions based upon the unique family, financial and practical circumstances at hand.

What is a Collaborative Divorce?

In a collaborative divorce, both spouses agree at the outset that they will use good-faith efforts to reach an amicable resolution. With this mutual understanding, the spouses exchange information, schedule discussions and seek professional guidance as necessary in order to come to terms with full disclosure and a clear understanding of the long-term implications of their decisions. A successful collaborative divorce results from an acknowledgement that both spouses have the same general goals in mind (although their specific wants and needs may vary, or even be at odds), and a commitment from both parties to see the process through without allowing disagreements to deteriorate into contentious disputes.

At the outset of the collaborative process, the spouses must confirm their mutual understanding in a written agreement. Each spouse will be represented by his or her own divorce lawyer, and each will have an opportunity to read, fully-understand and propose reasonable changes to the agreement prior to signing. Once both spouses have signed the agreement, the collaborative process can begin, and each spouse (still represented by his or her own legal counsel) will engage in the process with the parallel goals of securing a just outcome and reaching any necessary compromises without litigation.

Particularly in complex and high-net-worth divorces, divorcing spouses will often benefit from seeking outside professional help during the process. This could mean hiring a mediator to help resolve certain issues, or hiring accountants and social workers who can provide advice on creative solutions that will enhance the benefits afforded to both spouses. In a collaborative divorce, the aim is not for either spouse to “win,” but rather to achieve a fair and transparent result that respects both spouses’ legal rights and adequately addresses their respective wants and needs.

What are the Alternatives to a Collaborative Divorce?

As we mentioned earlier, collaborative law is not for everyone. It takes a willingness on both sides to commit to the process, and both spouses must be capable of seeing the process through to its conclusion. When preparing for a divorce, it is important to consider each of the options that is available, and to choose the approach that is most likely to result in an efficient and cost-effective resolution.

The basic alternatives to a collaborative divorce in Indiana are:

  • Negotiation – Spouses who are able to work together and do not need the structure of the collaborative method (for example, if they do not have children and only have limited assets that require distribution) may be able to resolve their divorce through negotiation. In negotiations, each spouse should have independent legal representation, and both parties should be confident that they have the information they need to make informed decisions.
  • Mediation – Mediation is a dispute resolution method that involves working with a neutral third-party “mediator” who offers suggestions for compromise. Mediators do not make binding decisions, but rather use their training and experience to help divorcing spouses overcome roadblocks in the divorce process. Divorcing spouses can use mediation exclusively, or as a tool to assist in resolving issues during a collaborative law divorce or litigation.
  • Litigation – When an amicable resolution is not an option, divorcing spouses may need to resort to litigation. In litigation, the spouses must adhere to the relevant court rules and procedures, and a judge will render a binding decision based upon the evidence presented in motions, hearings and trial.

How Can I Use the Collaborative Method for My Divorce?

If you believe the collaborative method is the right approach for your divorce, the process starts with getting your spouse on board. This may be something you want to discuss with your spouse directly; or, it may be a proposal that is better communicated through your spouse’s attorney. This is a decision you will want to make with advice from your lawyer, and it is among the first of several strategic decisions you will need to make during your divorce.

In many cases, getting both spouses on board with a collaborative divorce is an exercise in education. While your spouse may initially be hesitant, once he or she has a better understanding of the process, he or she may be more amenable to considering the collaborative approach. This is where getting your spouse’s attorney involved can help. Your spouse’s attorney should be able to both: (i) clearly communicate the benefits of collaborative divorce, and (ii) advise your spouse as to whether the collaborative approach is a viable option (which becomes significantly more likely once you have expressed a willingness to commit to the process).

What Happens if My Spouse and I Cannot Come to Terms?

The vast majority of collaborative divorces are successful. Once both spouses understand and commit to the process, the likelihood is extremely high that they will continue working together until all issues have been resolved.

But, if for some reason the process is not successful, the next step is generally litigation. When spouses are so at odds that they cannot make effective use of the collaborative method, asking a judge to make decisions for them is likely to be their only remaining option. If the collaborative process breaks down, both spouses are required to hire new litigation counsel, and the costs and time delays of this requirement alone are often enough to rekindle efforts to achieve a mutually-agreeable resolution.

Contact Carmel Divorce Lawyer Joshua R. Hains

If you would like more information about the collaborative method, you can contact our Carmel, IN family law offices to schedule a complimentary initial consultation. To speak with attorney Joshua R. Hains about your divorce, please call (317) 688-1305 or inquire online today.