When I am asked, “What is Collaborative Divorce?” I often begin by explaining what it is not:
No Court Appearances
Coinciding with no motion practice, there are no court appearances, with the exception of a five-minute, final hearing, during which the judge grants the divorce. In some counties, this five-minute appearance is not even necessary and all of the paperwork can simply be mailed in to the judge.
Because there are no depositions, no motion practice and no subpoenas, there are no hard and fast deadlines. The parties are able to resolve their case at their pace. Because there are no depositions, no motion practice and no subpoenas, there is great privacy. No transcripts and no potentially hurtful or embarrassing details make it into the public record.
So, what is Collaborative Divorce? It is a process that allows clients to divorce with dignity. It is a process that requires a commitment to resolve the case by agreement instead of turning to the court system. Through a series of client-centered, goal-directed meetings involving collaboratively trained lawyers and neutral financial and mental health professionals as needed, a binding agreement is written. Simplified documents are then filed in the public record and a final hearing is scheduled so that the judge can sign off on the agreement and grant the divorce.
No Motion Practice
In litigated cases (cases that go to court), where agreements cannot be reached or compliance with various obligations cannot be obtained (e.g., exchanging documents by a certain date), we file motions to be resolved by the court. The collaborative process requires a commitment to resolve the case by agreement and complete transparency when it comes to exchange of information and/or documents.
In litigated cases (cases that go to court), clients and their witnesses are often deposed, i.e., asked questions under oath in the presence of a court reporter who is typing everything that is said. Attorneys have very wide leeway in terms of the questions they can ask at a deposition. As you might expect, this can result in embarrassment to the clients, their colleagues, friends and family. What can then follow is unnecessary hostility and protraction of the litigation.
In litigated cases (cases that go to court), documents can be compelled from a non-party (e.g., a credit card company or employer) through a subpoena if one client will not willingly provide the requested documents to the other side. Because of the transparency in information exchange in collaborative divorce, unless a subpoena is actually required by a non-party to satisfy internal compliance, documents are simply provided upon request.
No Competing Experts
In litigated cases (cases that go to court), there can be disagreement over a number of issues, e.g., the value of a home or business, or what the time sharing schedule with children should be. Often, parties hire competing experts at a potentially high cost. In the collaborative process, one neutral financial professional and one neutral mental health professional are used, to the extent their expertise is needed. The parties are able to meet with these experts together or separately to achieve the most cost-efficient result.