How do you decide whether a collaborative divorce or a full blown litigated divorce, that is to say going to court, is the best option? The following blog originally appeared on the Denton County Collaborative Professionals website. Our goal is to help couples at facing the reality of their marriage ending to understand that there are options for a divorce that go beyond the typical stereotype of a nasty fight. So how do you decide, here are some factors that may help to make the decision about the best route to choose.
It is difficult to determine whether collaborative divorce is the right choice for obtaining your divorce if you have never been a party in a contested lawsuit. Litigation has common threads regardless of whether the case is one involving divorce, breach of contract, products liability or medical malpractice. All litigated cases have scheduling orders that require certain things to be done within a specified period of time. These include but are not limited to, written discovery, depositions, designation of expert witnesses, amending pleadings, filing motions, exchanging exhibits and scheduling hearings.
Since the attorneys handling the case must comply with the Court’s scheduling order, they are in charge of the litigation and the parties are not. The attorneys’ job is to develop the case for trial so that all proof needed is admissible in Court and so that the client’s best case may be presented. This requires the attorney to subpoena documents and take depositions of the parties and witnesses. In addition to identifying all assets and debts of the parties in a divorce case, the attorneys will develop testimony under oath to blame the other party or destroy their credibility if it helps their client’s position at trial. It should be noted that all documents filed with the Court become a public record. The nature of this process creates tension and anxiety among the parties which usually spills over to the children.
In contrast, a collaborative divorce is private and does not involve any court proceedings other than the filing of a basic petition and a brief, final hearing before a judge to sign the decree. There are no depositions, written discovery, hearings or filed motions. The blame game is not a part of the process and the exchange of relevant information is required but, the timeline for production is controlled by the parties. If experts are needed in the areas of finance, communication or formulating a parenting plan, they are jointly retained as neutral consultants for both parties. This process allows the parties to preserve some alliance with family and friends and to lay a foundation for an amicable future relationship with the former spouse and children.
With a collaborative divorce, the parties and their attorneys work together to identify the goals, interests and concerns of each party. All relevant information is gathered so the parties can develop options to divide the marital estate and put a parenting plan in place. This allows the parties to retain control over the process and to make informed decisions along the way. With litigation, the parties lose the ability to control the process. They also lose the ability to control the final outcome if the case is tried to a judge or jury.
With litigation, the attorneys’ fees which are paid can be viewed as a true cost of doing business. With collaborative divorce, the attorneys’ fees should be viewed as an investment in future relationships and knowledge gained about the financial implications of the marital estate. For additional information regarding collaborative divorce, I recommend consultation with an attorney who has been specifically trained in the process. One of the best sources for a list of trained collaborative divorce is the Denton County Collaborative Professionals website. collaborativedivorcedentoncounty.org.
By Frank G. Lyle
Springer and Lyle, LLP
April 1, 2015