A collaborative approach to divorce
Modern divorces can take a tremendous financial and human toll on the entire family. The Collaborative process, allows the majority of the divorce or separation process to be completed out of court. This allows parties to resolve their differences with their dignity intact. Collaborative attorneys are able to assist clients in all counties in the state, because the collaborative process requires a contractual agreement in which both parties agree that no issues will be litigated in court and instead will be resolved by negotiation.
Appropriate professionals, such as trained accountants, actuaries and family therapists will be brought in if warranted. The only court appearance required is to have the provisions of the final agreement ordered by the judge. This reporting of the agreement generally takes under an hour and requires only one of the parties to attend.
Those with high net worth estates will especially benefit from a collaborative approach, as the professionals required to address parenting plans, asset valuations, tax issues and complex asset division need not be duplicated, as in an adversarial divorce.
Much of the anger and agitation that accompany divorce litigation is a product of each party’s fear of the unknown. To achieve a settlement that best represents the needs of both parties and their children, a collaborative approach takes away the underlying threat of litigation and permits the parties to undertake discussions and to analyze information in an unrushed atmosphere.
Many adversarial divorce cases are settled at the last moment on the courtroom steps in order to avoid the uncertainty of a judge’s ruling. This often comes after months or years have been spent in and out of court fighting a bitter dispute with the attendant legal fees. Although a veteran family law attorney can provide a reasonable guide to his or her client as to what to expect for an overall result, the ultimate decision is made by a trial judge who has only been privy to the information elicited in a relatively short time at trial. This can lead to court orders that do not most beneficially address the needs of the family.
Collaborative Divorce is an offshoot of Divorce Mediation. However, a mediator may encounter difficulty in fashioning a fair result where the parties are unevenly matched as negotiators, or in cases in which one party becomes distraught. In some instances, one party refuses to negotiate.
With a Collaborative Divorce, separate attorneys represent both parties and each party agrees that, if the collaborative process fails, the lawyers will be removed from the case, unable to represent those parties against each other in court or to be called as witnesses.
Experience reveals that these strict rules result in a creative and productive process where the parties and their attorneys find solutions that work for the entire family. An added benefit is that the family’s privacy remains intact. Financial affidavits can remain sealed and ignoble allegations are not publicly aired as they are in a litigated divorce.
Collaborative lawyers must have special training, as the approach and the lawyers’ mind set is quite different than in an adversarial divorce. The aim of both attorneys s to fashion a fair and practical result for the entire family. The collaborative approach promotes problem solving and permits solutions not possible in litigation.
Both attorneys will require their clients to fully disclose assets, income and other relevant information. Withholding information is grounds to dissolve the collaborative agreement. Generally, divorces that are the product of a carefully crafted agreement, arrived at with the assistance of able legal counsel, will result in far fewer reasons to return to court to litigate on a post judgment basis.
Collaborative divorce is not for everyone. Both spouses and attorneys must trust each other to work toward the common good. However, the time, effort, and mental anguish that can be avoided makes collaborative law the best alternative to lengthy and costly litigation.
Linda L. Mariani is a New London attorney focusing on divorce, family law, and personal injury litigation.
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